28th Anniversary of Magic: The Gathering – A discussion of IP Considerations – Part Three
By Sandy Rokhlin*
This is the third and final post in our MTG Intellectual Property series, click here for CCGs generally, the Tapping Patent, and Artists & Royalties. Click here for Card Alterations & Counterfeits.
Promissory Estoppel & The Reserved List
The Reserved List is a list of MTG cards that WotC states will never be reprinted. WotC’s reprint policy is that they will reprint cards so long as they are not on the Reserved List, so that players can access and play with the cards that they wish to. The Reserved List was established in 1996 in response to anger from collectors, when WotC started reprinting cards that they had previously ceased printing. The Reserved List was then altered in 2002, removing uncommons and commons from the list, and then again in 2010. The 2010 change disallowed foil reprints of Reserved List cards, made in response to public anger surrounding such a release. Following this change, Mark Rosewater, the head designer of MTG, issued an apology and later confirmed the foil reprints were an attempt to phase out the Reserved List. It has now become clear that the Reserved List is not going anywhere, perhaps because WotC does not want to get hit with a lawsuit for promissory estoppel?
Promissory estoppel is when a promise can be enforced as if it were a contract.
Generally speaking, the factors of promissory estoppel are: (1) a promise, (2) the promisor intended or should have expected the promisee to rely upon the promise, (3) actual and reasonable reliance upon the promise, and (4) the reliance was to the promisee’s detriment.
Here, promissory estoppel may be found if cards on the Reserved List were reprinted because the Reserved List could be seen as a promise from WotC to owners of those cards, that WotC will not reprint the cards on the Reserved List. If WotC were to reprint cards on the Reserved List, many of which are very expensive due to their scarcity, someone who purchased rare cards at high prices in reliance on the Reserved List might sue WotC for damages based on a theory of promissory estoppel. The current language on the official MTG reprint policy website, concerning the Reserved List (as of 7/13/2021) is strong, “In consideration of past commitments, however, no cards will be removed from this list.” If WotC went against this statement, individuals who own many cards on this list stand to lose significant amounts of money, and could possibly seek compensation in some form, such as a lawsuit.
For a more in-depth analysis and explanation of promissory estoppel and how it applies to the Reserved List, please see Scott Peitzer’s article. For a succinct reading of this article and the monetary implications of promissory estoppel and MTG, please view the timestamped segment of this video.
With its most profitable year being 2020, it seems unlikely MTG will go away anytime soon. In early 2021, two island artworks were temporarily listed by MTG artists for sale as non-fungible tokens (NFTs). They were promptly unlisted and WotC released an internal statement that MTG artists cannot sell NFTs of their art.
NFTs are a new form of digital property, and are somewhat controversial. On the one hand, they are a great way for digital artists to make money off of their work, on the other, the rights that attach to NFTs are often unclear and not well defined. Since MTG artists do not own copyrights to their art, it makes sense that they cannot sell NFTs of their art as that would likely be copyright infringement, and Hasbro and WotC have indicated that they themselves are considering NFTs of MTG artwork. As of right now it is unclear if MTG NFTs will be sold, but maybe we will know more come MTG’s 29th anniversary.
In conclusion, MTG has generated a ton of IP in its 28 years and has created several viable work opportunities for visual artists. The CCG model which MTG laid the groundwork for has had a significant impact on tabletop gaming and its related artistic community. May the magic of MTG continue improving opportunities for artists for years to come.
Thanks for reading! Check back here for future posts covering game related intellectual property!
*Sandy Rokhlin is a 2L law student at the George Washington University Law School, and the Research Assistant for the Patent Arcade blog. Nothing here should be construed as legal advice, only a consideration of IP surrounding MTG. The views expressed herein are her own, and should not be attributed to Banner Witcoff or any of its clients.