Thursday, July 28, 2011

Seeking Free Legal Advice

Which will, I am fully aware, be worth every penny. :-)

Seriously, though, an OGL question for the gallery. Section 7 of the OGL reads:
Use of Product Identity: You agree not to Use any Product Identity, including as an indication as to compatibility, except as expressly licensed in another, independent Agreement with the owner of each element of that Product Identity. You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such Trademark or Registered Trademark. The use of any Product Identity in Open Game Content does not constitute a challenge to the ownership of that Product Identity. The owner of any Product Identity used in Open Game Content shall retain all rights, title and interest in and to that Product Identity.
I read that to mean that a publisher cannot publish a given work under the authority of the OGL and say "this is compatible with game X" without the express written permission of the owner of the trademark of that game's name. All fine and well.

But what would happen if, hypothetically, a publisher published a work under the authority of the OGL, including the text and so on, but then published a second work, without the OGL, that said, in effect, "product A is compatible with game X". Would the fact that the second work was not published under the OGL allow said publisher to do so?

A hypothetical example, to illustrate the point.
  • Krazy Kobold Games publishes a retro-clone game called Awesome Adventures under the Open Game License. They include the text of the license in the rulebook, just like they're supposed to.
  • Villainous Vulture Games publishes an adventure module that is compatible with Awesome Adventures under the Open Game License, including the text of the license in the module like they're supposed to. Because they don't have permission from Krazy Kobold Games to say it's compatible, they do not say so on the cover or in the text of the module itself.
  • Villainous Vulture Games then publishes a catalog of their offerings. The catalog is not published under the OGL, because it in and of itself does not use any Open Game Content. In the catalog, they say "Buy our adventure module, fully compatible with Awesome Adventures!". 

Bearing in mind that the question of whether saying something is "compatible with" another game has already been decided by the courts, and has been deemed to be perfectly legal from a copyright/trademark point of view, has Villainous Vulture Games violated the terms of the OGL by indicating compatibility without permission, even though the means by which they indicated such compatibility was not, in and of itself, published under the terms of the OGL?

Bonus points to the answers of anyone who is actually a lawyer, and double bonus to anyone who's a copyright lawyer or has previous experience with the OGL.


Ivan said...

Lawyer here, but not one with any particular experience in copyright law or the OGL.

My guess is that the issue will come down to this sentence:

"You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark **in conjunction with** a work containing Open Game Content except [by permission]."

In other words, it's not merely that you are prohibited from indicating compatibility *in* the OGL work you publish, it's that you are prohibited from indicating compatibility "in conjunction with" that work.

I would say that under your hypothetical example, VVG's catalog (though not using the OGL itself) would be indicating the compatibility "in conjunction with" the adventure module. VVG is using the module and the catalog together to indicate that the module is compatible.

My opinion (for what it's worth) is that VVG violated the terms of the OGL.

baronkohinar said...

Not to mention, in the example, what would they gain by doing so? Isn't the point of making something compatible with something else telling people about it so sales increase accordingly? Why go to all the work if you can't tell anyone about it?

Though, ostensibly, the real question here (at least from what I'm gathering) would be could you release ADD under the OGL and then release AGG outside the OGL (though fully compatible with ADD since you have your own permission)? I'd say I could easily see it going either way - however the real question would be what is there to gain? I imagine your intention would be to safeguard all the new rules in AGG, however I'm not sure how effective it would be:

Recall, one of the main reasons the OGL came into being in the first place was that the courts ruled an individual couldn't patent game mechanics, only artistic presentation. You'll note, in the OGL, aside from trademarks (such as the title of the game and a few choice monster names), descriptions, etc everything else is more or less fair game. It's my understanding that the reason Wizards did this was, with the ruling, they knew it was inevitable so they thought they'd at least control it to some degree - to clearly spell out the letter of the law, avoid unnecessary lawsuits, and possibly sell some more PHBs while they were at it.

Hence, if I'm reading the situation correctly, regardless of what you do with AGG vis-à-vis the OGL, the individual mechanics aren't protected under the law. True, you're not giving people permission to use them up front but, to my understanding, you don't need to. The OGL exists only to highlight the only things that are/can be protected.

Joseph said...

@baron: Actually no, this particular question has nothing to do with AGG, although I can see why you'd be led to think so, by timing if nothing else. This is a question that is purely relevant to ADD.

Talysman said...

Check with Matt Finch, because he specifically has an agreement with Daniel Proctor so that the two of them could comment on the compatibility of Swords & Wizardry and Labyrinth Lord. I assume this is because they checked with a lawyer on that language.

When he (or Daniel) explained it on Dragonsfoot, I recall them saying that it applies to all advertizing and official communications. There was some question as to whether it also applied to informal conversation on forums.

Robert Fisher said...

I am not a lawyer. My first thought was what Ivan said.

From this layman’s point-of-view, though, there’s seldom a reason to use the OGL unless you want to publish a minor variant of the d20 system (or another OGL system).

Modules, in particular, don’t really gain much from the OGL, and there have been plenty of non-OGL modules (post-license JG products, Creations Unlimited products, New Infinities products, etc.) that haven’t run into trouble.

I also believe that, outside of the OGL or a similar agreement, claiming compatibility is perfectly legal as long as you’re careful about how you do it. To my knowledge, though, that hasn’t been tested. (The Mayfair/TSR issue was about an agreement to allow Mayfair to claim compatibility rather than about the right to claim compatibility outside of an agreement.)

ADD Grognard said...

Again, not a lawyer but when dealing with trademark matters it is really a crap shoot. Trying to play both sides of the street can look bad in front of a judge and would weigh on their decision.

The trademark issue is usually one of 'dilution'. I think they squeeze quite a bit of mileage out of this one and again the interpretation is left up to the judge.

Think of this:

If you made a character sheet for AD&D1e and said that's what it was for the odds of it being ruled in your favor is pretty good. It's a fairly innocuous item.

But if you create a 64 page book detailing the sexual couplings of all the humanoid races accompanied with graphic illustrations of said couplings a case could be made for the fact that you are harming or 'diluting' their trademark.

In between those 2 points is no man's land.

If you are dealing with an iconic product the way most handle it is with something like 'compatible with the original fantasy rpg' or something like that.

My best advice: Talk to a lawyer if this is a major deal or stick with a vague association that avoids the issue.

If you encounter a case where you have violated something under the OGL through no fault of your own there are sections in the license that deal with rectifying that as well.

Hope that helps a bit.

anarchist said...

I think that part of the license is specifically to stop third-party publishers saying "for Dungeons & Dragons."

In practice I can't see anyone getting into trouble for putting out a module for Swords & Wizardry or whatever it may be.