D&D General What Actually Is Copyright Protected In The SRD?

[Zardnaar]

This is far from clear. The DaVinci Editrice S.R.L. v. ZiKo Games, LLC ruling suggests the only things copyrightable are art, logos and narratives. If you made an exact copy of MtG with different art the outcome would be far from certain.

Is perfectly safe, since you could simply point to KotOR as the source.

And potentially, visa versa. Which is what WotC want to protect themselves from.

The big companies that WotC care about. They don't care what little guys do. It doesn't matter if WotC win, they have still made a net loss fighting the case. The only way to make money off law suits is if you are a little guy and successfully sue (or force an out of court settlement on) a big guy.

There is a big difference between "conceivably" and "likely". And even if they did win, it would still be money down the toilet.

I agree it's unclear. Numerous lawyers here and elsewhere have said WotC have a viable case.

They're a lot less clear if WotC can win. In a lit of cases they don't need to the threat alone is enough. Or being blocked from 6E.

 

[Paul Farquhar]

I agree it's unclear. Numerous lawyers here and elsewhere have said WotC have a viable case.

They're a lot less clear if WotC can win. In a lit of cases they don't need to the threat alone is enough. Or being blocked from 6E.

Indeed. WotC want to AVOID lawsuits. Which is why the OGL was introduced in the first place, they want people to agree to play by their rules, because if they had to be tested in court there is not certainty WotC would win, and a loss could leave them dead in the water. They sure hope no one calls their bluff. The odds may be stacked on WotC's side, but the penalty for losing is also much higher. Which means thousands of people's jobs, now WotC is propping up Hasbro.

There is a problem: The problem is D&D having a virtual monopoly on the RPG market. But that aint WotC's fault, there is no point in getting mad at them about it.

 

[pemerton]

I was thinking 2 things with my question.

1. If WOTC did win on their deautorizaiton/revocation OGL claims, then all their statements to the contrary that stood online for years would be evidence that they deceived and misled the users of the OGL. So worst case for 3pp is they could likely be reimbursed for loses due to the change. In fraud in the U.S. it clearly matters what promises and reassurances were made to a person. This potential for a fraud claim also provides 3pp some leverage over the OGL situation.

To be frank I think this is fanciful.

The only thing you are suggesting WotC deceived about was its intentions in relation to, and understanding of, the OGL. But there is no evidence that WotC was being deceptive - the company may have changed its mind and its legal understanding.

And for most tortious claims (not all) its necessary to prove loss - I don't believe that fraud is actionable per se. What loss did OGL cause to all those 3PPs by encouraging them to publish and sell their commercial works?

Given that in fact those 3PPs are making money from their commercial ventures, they want to prove the validity of their licences. And as I've posted in this and other threads, they would point to those statements to establish an estoppel or a similar reliance-based argument; not fraud.

2. As a legal strategy for the community it might be easier to pursue the fraud claims first. Fraud claims wouldn't be required to wait on individualized action from WOTC - their statement that it's deauthorized/revoked and any monetary damage afterwards due to trying to comply would be enough for standing according to my understanding. It puts WOTC on defense so to speak and prevents them from targeting companies 1 at a time. Also, the chance a fraud claim succeeds in this situation seems higher than the chance the license claims succeed. Not that the contract case isn't good, but the fraud case is a slam dunk.

Fraud is rarely pleaded because it's very hard to prove. In Australia at least there are special rules of evidence that apply, and a losing plaintiff can be liable for indemnity costs (ie costs ordered at a higher than typical rate). I'd be surprised if there are not similar bars to pleading fraud that operate in US jurisdictions.

So far from being a "slam dunk", I think there's no fraud and the case would be near enough to hopeless.

Also, there won't be any "licence claims". If there's litigation, it will be commenced by WotC, and the defendants will plead as their defence that they are publishing under licence. And I think there's a real chance that such a defence would succeed at trial, especially if supplemented by the estoppel/reliance argument.

 

[pemerton]

I’m talking about in the context of what’s in the SRD. Context man. If someone published something just because it was in the monster manual and Wizards failed to catch it was just an example of the ONLY way the OGL could arguably possibly be used to justify using their IP. You’re argument seems to be everyone pays attention to the nearly 400 page SRD.

WotC enjoy copyright in respect of the SRD, and have asserted their trademark rights also via their declaration of product identity. And everyone who uses the OGL accepts those claims, and expressly acknowledges the copyright.

I don't understand what you're saying about the Monster Manual. But I'm pretty confident that WotC will have a copyright notice included in every copy.

 

[pemerton]

If OGL goes away it's ability score system, skill system, feats and class structure are from 3.0.

My question was "What WotC-owned trademark does KoTOR use without a licence?" Telling me that a publisher may be violating WotC's IP rights if they lose their licence isn't answering my question.

So you can argue based on KotOR that the vast majority of third edition rules are public domain.

This claim strikes me as utterly unwarranted. You yourself have said you don't know what licences KoTOR was published under.

One might think that, but I haven't seen any evidence that this is the case (and I have looked).

Where would you expect to find it? It would be a private agreement between WotC and BioWare. Why would it be public?

 

[pemerton]

Well I don't think it matters for KotoR since it was made under the old paradigm an thus can be resold even if WotC is successful.

Indeed. And that establishes a precedent that a great many D&D rules are in the public domain.

I don't think this is a justified conjecture.

And WotC can certainly stop you from marketing something as "OneD&D compatible", even obliquely, if they choose to do so.

How? (Provided of course that you make it clear that you don't own the trademark in D&D and OneD&D and are not intending to contest WotC's use of those marks.)

The DaVinci Editrice S.R.L. v. ZiKo Games, LLC ruling suggests the only things copyrightable are art, logos and narratives.

I read the case earlier today. What you say is not an accurate summary.

 

[S'mon]

The text of the SRD is fully copyright protected.

Like, if I use action, movement, and bonus action, as my action economy, is that in the danger zone?

Rules mechanics per se are not copyright protected. An 'action economy' system is not copyright protected, AFAICS.

What about, like, the 6 stats, even if a couple are renamed and they work differently from any edition of dnd?

This seems fine to me. There are many, many pre-OGL games that use similar stats to D&D, even on a 3-18 scale. See eg Runequest and Call of Cthulu. The basic idea of character attributes quantifying strength, dexterity et al is clearly unprotected. Just in terms of making a better game I'd recommend tweaking them, eg I don't think Wisdom is a good stat, Perception & Willpower are both better IMO. But that's a game design question, not a copyright question.

 

[Paul Farquhar]

My question was "What WotC-owned trademark does KoTOR use without a licence?" Telling me that a publisher may be violating WotC's IP rights if they lose their licence isn't answering my question.

This claim strikes me as utterly unwarranted. You yourself have said you don't know what licences KoTOR was published under.

Where would you expect to find it? It would be a private agreement between WotC and BioWare. Why would it be public?

Why would they not have publicised Star Wars D20 in the marketing, had they used the licence? It's possible there was a private agreement, but neither company would have stood to benefit from that.

 

[S'mon]

@OP there seems to be a lot of bad advice going on here. I'd say ignore anything about WoTC committing fraud, and ignore anyone saying WoTC has ceded material to the Public Domain, whether copyright or trade marks. Pemerton's advice above is good, I think my advice in post 57 is good. Given without liability OFC.

 

[pemerton]

Rules mechanics per se are not copyright protected. An 'action economy' system is not copyright protected, AFAICS.

The Davinci decision includes the following:

this court agrees that certain games can have a progression of events and a roster of developed characters that make the game expressive, just as the progression of a book or movie plot can be expressive even when the basic elements are common. Many video games, for example, involve lead characters in fictional worlds who embark on a quest to achieve a specific goal, such as saving a princess or avenging a wrong. This lead character progresses down a predictable or even predetermined path and interacts with a series of characters along the way. Many of the characters have back stories and personalities. . . .

But other games have plot progressions and characters who interact in ways that fall short of the expressive character interactions and plot progressions that are protected by copyright law. . .

Bang! is in this second category. In Bang! , the Sheriff and Deputies are pitted against the Outlaws and the Renegade. Other than these alignments, the events in a Bang! game are not predetermined because the interactions between the roles have no underlying script or detail and are not fixed.​

This makes me think that the degree of protection an action economy system might enjoy would depend on the extent to which it combined with characters to produce a prior authorially imagined series of events.

A very railroady resolution framework might be an example!, but also perhaps one where the action economy is expressive of a particular imaginative conception of a particular character or character type. The basic action economy of modern D&D doesn't seem to me to meet this threshold. I'm thinking of something like My Life With Master as perhaps getting closer to protectability.