Thursday, August 12, 2010

A Layman's Thoughts on the OGL, IP Law, and the OSR

For those who have had their Internet access cut off for the last 48 hours or so, there seems to be an important test case on the horizon regarding the role of IP law, the OGL, and how it is applied by publishers and hobbiests. It's been discussed on Grognardia, Bat in the Attic, Underdark Gazette, Joethelawyer's Wonderous Imaginings, and a bunch of other places besides (the comments in all of those posts I just linked to are all well worth reading). I am not a lawyer, but I've done some research on these issues over the years, and I have a few thoughts on the subject. Naturally this isn't legal advice, ask your own lawyer before doing anything, etc.

First and foremost, folks seem to have a problem separating some of the issues. It's a natural tendency to try to conflate things, but from a legal standpoint, some of these issues are distinct from one another.

There is the question of the ability to copyright rules of games. This has actually been tested in the US courts, and the answer is that rules cannot be copyrighted. The way the rules are written can be, but the underlying rules cannot. TSR (and now WotC) owns the copyright on the actual text of the rulebooks, so you can't just copy and paste blocks of text into your own retroclone. They don't own the *idea* that warrior-types have hit points that are generated randomly with a 10-sided die and get more of them as they increase in power. This is the route that Gods & Monsters chose to take, which is why it was published without using the OGL.

In addition, there is the question of copyright vs. trademark. Copyright refers to text. This post I'm writing now is copyrighted by me. Even if I didn't say so, and didn't include a copyright notice, US law holds that an author owns the copyright of the words he writes, unless he has a contract that states what he writes belongs to someone else (or some company). Trademark refers to an identifiable title, logo, brand name, etc. The description of the spell "magic missile" in the Player's Handbook is protected by copyright. The name "Dungeons & Dragons" is a protected trademark.

By the way, using someone else's copyright or trademark has nothing to do with making money from it. If you copy the Dungeon Masters Guide verbatim, and then give it away for free, it is just as illegal as if you were charging $5 a pop. Non-profit status is irrelevant when it comes to copyright and trademark infringement.

You are allowed to use someone else's trademark to indicate compatibility. It is settled law in the US that you are allowed to say things like "compatible with Monopoly", as long as you indicate someplace that Monopoly is a trademark of Parker Brothers. Similarly, you're allowed to say "For use with Dungeons and Dragons", as long as you say that Dungeons and Dragons is a trademark of Wizards of the Coast. Mayfair Games proved that specifically in court, when TSR sued them and lost. However...

The OGL comes with certain restrictions. If you choose to use the OGL to publish a given piece of work, you cannot use terms like "Dungeons & Dragons", "Dungeon Master", "Mind Flayer", "Carrion Crawler", etc. It's written right in the license. By publishing under the OGL, you give up the right to use those phrases, and you explicitly give up the right to say "Compatible with Dungeons and Dragons". It says so right in the license you copied and pasted into your product.

Trade dress is a really tricky subject, because it's so subjective. Trade dress refers to the way a given product looks; if all of your products have a distinctive look, that's your trade dress and nobody else can use it, because consumers would be confused as to whose product it is. If your module looks just like a WotC module, but in teeny tiny print it says "Made by Fred's Game Company", you're violating their trade dress. And, by the way, that's something else that is explicitly not allowed in the OGL.

The question becomes, how long do you have to *not* use a particular trade dress before someone else is allowed to use it? A lot of companies (and I myself) have used trade dress that is *really* close to that used by TSR in the 1970's and 1980's. I'm willing to bet that ship has sailed, and WotC would be unable to sue based solely on that issue because that particular trade dress has been used so widely by others, but remember trade dress is not the same as trademark. Just because I use 30 year old trade dress doesn't suddenly mean that I can plunder someone else's trademark (like the name "Dungeons & Dragons") and use it indiscriminently. Saying "compatible with..." is one thing, and allowed. Plastering it in 144 point type across the top of a module is something else again.

Now, another question (albeit not one that pertains to the current issue with Die Cast Games, but what the heck-- I'm on a roll) is whether or not the OGL allows you to publish retro-clones. Obviously, this isn't a case that's ever been settled, and as far as I know WotC hasn't ever tried to say that the OGL *doesn't* allow such things, but be aware that the OGL allows you to create works based on what's in the SRD. If it's not in the SRD, it's supposed to be your own original work. What most of the simulacra have done, as far as I can tell, is try to skirt the issue by hybridizing what's allowed under the OGL (core mechanics such as hit points, levels, spells, classes, etc.) with the principle that game rules are algorithms and cannot be copyrighted. So they take what they want from the SRD, and fill in the rest with non-copyrightable material from earlier games. Personally, I think that's a perfectly valid approach, but a judge might see things differently if it ever came to that.

And, equally personally, I am on the fence as to whether I want to use the OGL for my own Adventures Dark and Deep™ game. On the one hand, it does give legal "cover", so to speak, and also allows me to use material that other authors have written under its auspices. On the other hand, it does prevent me from indicating compatibility with Advanced Dungeons & Dragons, which might be a very useful thing, as well as having to lose things like mind flayers and displacer beasts. Thus, I'm on the fence at this time.

Anyway, I hope I didn't muddle things too much with this, but that's my own understanding of what's at work here, for what it's worth.

UPDATE: I am reminded that OSRIC does indeed use the OGL.


rmckee78 said...

For what it is worth this is the best post I have seen on this incident so far. I noticed the module at GenCon and I am concerned about it. My major concern is that WotC may scare of publishers and sites like Lulu from dealing with the OSR if this gets ugly. Even if they don't have any way to stop the retroclones, the fear that they might could chill publishing and sales sites.

scottsz said...

PLEASE do not use the OGL for Adventures Dark and Deep...

I mean this as a sincere question:
what does the OGL really accomplish for us here and now?

What does it do FOR US?

Grendelwulf said...

A very nice review for the rest of us laymen. It boggles the mind.

Why go there at all? Arrogance? Hidden Agenda to undermine the OGL, etc? Stupidity? (sigh)

What's the worst that could happen? Time to go Underground with Black Market PDFs & books. Woo-hoo! Crank up your scanners & printers, folks! The sky's no longer the limit!

Oh, and you get to keep all the associated legal fines & penalties. . .


scottsz said...

@G: Fair enough, but what's stupid about questioning the OGL?

Everyone slaps this on their stuff, but what are the clear benefits compared to the hazards and how have these changed over time?

I'm not sure how anyone would (or would want to) undermine a license, but if you wanted to make a new adventure filled with new content that can be used with a particular game, is the OGL completely necessary?

Joseph said...

scottz: I think grendlewulf was referring to what Die Cast Games might have been thinking with their product, not saying that questioning the OGL was stupid or had some agenda. (Please feel free to correct me if I'm wrong, gw.)

scottsz said...

@Mr. B, GW: My first thought was it was a hoax or mockery, actually...

Geoffrey said...


FWIW, I do not use the OGL for my Supplement V: CARCOSA. It looked to be more trouble than it was worth, so I ignored it. I've been selling CARCOSA for 22 months now, with no problems. Plus the fact that the OGL page is just plain unsightly. :)

scottsz said...

@JB,GW: My first thought of the module, I mean.

(can you tell it's lunch time at work and I forgot to bring my flask?)

scottsz said...

@Geoffrey: Understood... interesting.

Grendelwulf said...

Joe's right. My reference was for Die Cast Games.

Who knows, maybe this is beneath WotC's radar? They're more concerned with 4E & Essentials right now than out of print/retired editions. If anything, it may be considered free advertising for them, of a sort. They love how popular the whole genre is. They also know we're all fish-in-a-barrel if they ever get really upset with copyright violations.


scottsz said...

@GW: I think you're spot on - this will probably take a week to even get noticed (if at all).

Given how little a presence classic D&D had at GenCon (hell, even NEW D&D didn't have that huge a presence), I'm just wondering...

lunchtime's over... back to work!

Rob Conley said...

It is risky not to use the OGL. The post is well written and everything was on point. However one thing that was mentioned that a body of terms, concepts, and organization is also a form of trade dress and it one that given more protection than a cover design.

For example if I write about a school age orphan, with a smart friend who is a girl along with a loyal best friend that comes from a large family that goes to a school of magic organized like a British boarding school, it would not before J.K. Rowlings had a thing or two to say about it.

This is the problem that the OGL was designed to overcome. An assurance that Wizards would NOT use this form of legal threat as long as you adhere to the license.

What it boils down is that we are taking advantage of another company's work to do our own thing. They have graciously released the core of their game for people to freely use for their own purposes. They made the OGL and d20 SRD so that it clear what they are giving permission for.

And luckily for the OSR and fans of Older Editions it also happens to be most of what we need to bring back various older editions. Whether they intended it or not.

Actually they expected people to make their own RPGs. Didn't expect to people to try to bring back older editions. But being able to do the former implies you can do the latter within limits.

Given all that not everything shares the same amount of risk. Adventures are the least risky, settings, rules supplement and finally ruleset as the riskiest of treading on Wizard's IP without the OGL.

I would not recommend releasing a ruleset without the OGL based on this. And as publisher I would be unable to support such a ruleset even it turned out to be the best of the retro-clones. I won't risk the WoTC bat without the protection of the OGL.

However there is a solution. By being the author you have the right the license the copyright however you see fit. Including DUAL licensing. Many open source projects do this.

You could release the SRD version under the OGL and the main selling copy under... well nothing if that your preference. And if you come up with your own open license so people can cite A(Dark)&D material with compatible A(Dungeon)&D. You include that with the main selling copy. Those who chose the OGL version will be stuck with the limitations of the license.

rmckee78 said...

If you decide to do dual licensing you have to be sure that the licenses are compatible with each other. This is a problem I encounter at work dealing with open source software.

It is unlikely that WotC does not know about this in some fashion, they could have thrown tennis balls at each other at GenCon. The question is, how long will it take it to filter to legal?

This was not the only TM related incident I saw at GenCon this year. There was a use of the Air Force logo that can't possibly have been authorized.

Grendelwulf said...

Yeah, WotC probably knows.
And, ironically, have you seen the upcoming box set for D&D Essentials? It's so retro/old school it should come with a coupon for an extra-large pizza and 3-litre Mountain Dew!

WotC might be wanting to reuse some of the old styles; all the better to lure the old ones back with the new ones. . .


Joseph said...

I've had a chance to read the actual module, and I'm not convinced they're not trying to go for parody.

Harold Johnson's Inn. Sheriff Olob. One of the pre-gen characters is called Mentzor. The Herbalist T. Aichee. Plus the setting is called T'Essarr.

The player's introduction even says "Most of your days are spent drinking ale and playing Castles and Chimeras in the local pub."

I'm guessing, if it ever came to it, that such things were thrown in to support a claim of parody, which loosens the rules regarding intellectual property considerably.

The module itself is pretty good. I've only done a read-through, but it seems like a fine low-level adventure. The interior artwork is simply fantastic; 13 pieces not including the cover or maps, and two of those are full-page pieces. All by Jeff Easley. There were more than a couple of typos, which was slightly annoying, but didn't really detract from the whole. I'd say it was worth the $12, given the price of such things nowadays.

rmckee78 said...

Parody can be complex as its application varies a bit from court to court. Generally the less commercial the use the more likely you are to succeed with a parody. Also a parody nees to be the same, in that it is recognizable what it is parodying and different, in that it does something to create some kind of commentary or humor. The similarity of the products also weighs in for a parody analysis, if what you are selling is clearly, to the consumer, something other than what the original brand was used for in subject matter or quality you have a stronger case.

I have not done a Westlaw search for similar cases or anything here, but I think the parody case is going to be hard to make here. They actually used the trademark and trade dress, they did not alter the name or trade dress itself for parody purposes. They made, by your estimation, a useable, good quality module. This is exactly what the AD&D TM and trade dress were intended to market. This is pretty clearly a case of freeriding on the good will established by the AD&D brand.

They may be able to attack the AD&D TM and trade dress as out of use, but are still going to run into problems with the fact that it is in the D&D family of TMs. (Firestone, Bridgestone compared with Silverstone for tires)

For more information on parody: Louis Vuitton Malletier, S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252

jgbrowning said...

OSRIC uses the OGL.

Joseph said...

Wow... all this time I thought OSRIC didn't use the OGL, but I looked and there it is. I wonder how I got that impression?