BOEF OGL Violation?

[kenjib]

The actual "press release" part of the announcement does not at all mention Dungeons and Dragons.

The parts of the article that mention D&D are in the comments from the person who posted the article, Damon White.

Nitpicking? Maybe...but that's what Law is all about.

Cedric

From the "Tip Sheet":

"The Book of Erotic Fantasy" is created using Wizard of the Coast’s "Open Game License." This license has no approvals and no royalties and is modeled after the Linux "Open Source" movement. This is the first time that a print product has attempted to make use of this philosophy. This radical and innovative idea has revolutionized and revitalized the role-playing game industry by allowing anyone to create products compatible with the Dungeons & Dragons? game system. Anthony Valterra has overseen the license for the last three years.

Not only does this indicate compatibility through association by stating that the license indicates compatibility and the product uses the license, but as I understand the OGL, the statement that the OGL allows "anyone to create products compatible with the Dungeons & Dragons? game system" is a misrepresentation of the license itself. The liscense does not allow this. The System Reference Document allows you to create products compatible with the System Reference Document under the OGL. The d20 license regulates compatibility with D&D proper, but this release is not using the d20 license. Someone please correct me if I am wrong though.

Also, from the last part of the press release:

"This book reveals the erotic side of the high fantasy genre (elves, dragon, fairies etc.) and contains roleplaying rules that are compatible with the best selling Dungeons & Dragons roleplaying game.

This product will bring new levels of realism to the roleplaying genre. Rather than illustrations, photos of models were taken. These images were then run through Photoshop to create a realistic fantasy world." Anthony Valterra, Valar Project, Inc.

This one seems much more clear cut to me. Whether or not this is technically part of the press release proper or not, Anthony Valterra has released a statement to the press that his product is "compatible with the best selling Dungeons & Dragons roleplaying game." This statement seems, to me, to be clearly in contradiction to the OGL. Again, of course, I could be wrong, but it seems clear to me.

EDIT: Morrus' post cleared up that Damon White didn't actually generate any of that comment, so this one is also a problem:

Valar Project, Inc. to release the “Book of Erotic Fantasy” in October 2003 - the first roleplaying game, compatible with the best selling Dungeons & Dragons ™ fantasy roleplaying game, that deals directly with sex and sexuality.

 

[kenjib]

On my lawyerly analysis, the press release is not released under the OGL (there would be no reason to do so, plus as has been noted one of the terms of the OGL is that you include it with material released under it) and therefore its terms do not apply to the press release. The normal rules of US copyright & trademark law (including fair use provisions) therefore apply to the press release.

Edit: The OGL is a unilateral contract, you agree to its terms & a work becomes bound by it when you include it with that work, which gains the benefits and disbenefits of the OGL. The OGL is not included in the press release, and the press release therefore neither benefits nor disbenefits from the OGL.

The emphasis below is mine:

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.

Okay, so the Press Release is not currently a violation, but the moment they release the book, it becomes one. It looks to me that the very act of publishing the book under the license now creates a breach of the license. So, because of this press release there is now no legal authority for the publishing of this book.

How do you interpret this angle? Am I just off my rocker?

 

[Bendris Noulg]

Interesting what is said and not said here.

First, what is said...

Wizards of the Coast is in no way associated with the product, "The Book of Erotic Fantasy," referenced recently on Gamingreport.com. We find the subject matter distasteful and inappropriate and do not endorse, condone, or approve of its use with the Dungeons & Dragons game. While the OGL license allows anyone, even our employees, to produce products that are compatible with Dungeons & Dragons, Wizards does not approve or control the theme of any third-party D20 product.

What isn't said is that VP didn't have permission. Nor has VP issued a retraction, correction, or any other such statement. Indeed, they present a pdf download of the same press release on their website; This was made available after WotC issued their response.

Amidst all the controversy, AV hasn't made any statements despite this being a significant "in the air" issue. And why would he? The longer this is in the air, the more people will talk about it.

Tellin' ya, this is the just about the most hillarious stunt since someone started a rumor that Marilyn Manson commited suicide and, upon hearing about it, MM instructed his record label not to confirm or deny for something like 2 weeks.

Is this the alt.label that Anthony mentioned 2-3 weeks back? Perhaps. Maybe not. But the fact is, nothing is present to indicate that permission does not exist, and nothing has been released that would require an official statement of licensing to be presented to the public.

 

[The Sigil]

Edit: Kenjib beat me to the punch.

Again, at issue is NOT whether or not the Press Release is done under the OGL.

The issue is, "if the book itself is done under the OGL," do the rules governing indication of applicability (Section 7 of the OGL) apply to press releases about that book, regardless of whether the press release is released under the OGL?

Again, I don't speak "legalese" fluently, but the phrase, "in conjunction with" tells me that the restriction to not touching trademarks applies not just to the book itself, but to advertisements, press releases, store displays, etc.. In other words, does the OGL extend to include these even if the ads, et al themselves do not contain OGC and are not published under the OGL. My interpretation is "yes, they are not covered by the OGL in their entirety, but they ARE subject to the restrictions of Section 7" because Section 7 restricts what you can do not only IN an OGL work but IN CONJUNCTION WITH an OGL work, regardless of whether or not the stuff done IN CONJUCTION WITH the work is released under the OGL or not.

Since you do appear to speak legalese, please educate me. (That's not being sarcastic, I honestly want to know what the lawyerly definition of "in conjunction with" is - how far does it reach?)

--The Sigil

 

[Morrus]

Whether or not this is technically part of the press release proper or not, Anthony Valterra has released a statement to the press that his product is "compatible with the best selling Dungeons & Dragons roleplaying game."

Exactly. Whether or not something is labelled as a "press release" is irrelevant. What's the difference between a press release and any other announcement made by a company? Only whether or not they put the words "press release" at the top. The "Tip Sheet" is part of the "press release" despite the words "Tip Sheet" to be found halfway down that press release.

Not that it would matter if there was a difference. Where in the OGL does it state that there are different rules for items specifically designated as press release and items that are not?

Anyway - AV knows the rules better than most of us here (he's the guy who enforces them!) I'm sure that what he's doing is OK, even if it's because he has permission from WotC but they haven't told us about it.

 

[Utrecht]

I have to wonder why this is even important to us as general fans other than being the topic de jour.

I can see where puchlishers and authors would be curious - but for me as a fan, I really could care less if a product - and even less so a marketing release is OGL.

So, I have to ask - why is this a big deal for the public at large?

 

[Cedric]

I actually wouldn't be surprised if WoTC has a blanket "gentleman's" agreement that projects completed by or involving their staff are allowed to reference Dungeons and Dragons. It would make sense really...

And if they didn't specifically give permission for this and help orchestrate the press spin...then I bet that this is a policy they will be revising in the future.

Cedric

 

[The Sigil]

Wizards of the Coast is in no way associated with the product, "The Book of Erotic Fantasy," referenced recently on Gamingreport.com. We find the subject matter distasteful and inappropriate and do not endorse, condone, or approve of its use with the Dungeons & Dragons game. While the OGL license allows anyone, even our employees, to produce products that are compatible with Dungeons & Dragons, Wizards does not approve or control the theme of any third-party D20 product.

Emphasis mine, this time.

If WotC does not endorse, condone, or approve of its use with the D&D game, is that not tantamount to saying that he did not have approval to use the D&D brand name?

I hate legalese. Speak ENGLISH! LOL

By Bendris Noulg
What isn't said is that VP didn't have permission. Nor has VP issued a retraction, correction, or any other such statement. Indeed, they present a pdf download of the same press release on their website; This was made available after WotC issued their response.

snip

But the fact is, nothing is present to indicate that permission does not exist, and nothing has been released that would require an official statement of licensing to be presented to the public.

An interesting point, to be sure.

I would say that it is implied in the phrase "do not approve of its use with the D&D game" that permission does not exist. But then, as I mentioned, I do not read lawyer.

If he *DID* get WotC's permission to use the D&D trademark, though, I imagine there will be a lot of publishers asking WotC for permission - and upset when they don't get it... it smacks of "favoritism" to me if Valar is truly independent of WotC - unless Valar PAID for the license. And if it is not truly independent, it raises a whole host of issues.

Basically, this is going to raise a lot of d20 publishers' hackles no matter what...

1.) If it's in violation of the OGL, the d20 publishing community will be exceedingly upset and will accuse AV of a double standard. People will flaunt the OGL with (more) impunity, and point back to this as a precedent.
2.) If it's allowed by the OGL, expect every publisher to start doing it, watering down the D&D brand.
3.) If there exists a separate agreement and AV did not pay for it, there will be accusations of favoritism.
4.) If there exists a separate agreement and AV did pay for it (and I can't imagine the cost would've been too high, considering he's with a startup), other publishers will demand the same deal.
5.) If they are a "mature label" for WotC, there will be a lot of eyebrows raised towards WotC's press release and towards Hasbro in general.

In other words, there is no scenario that doesn't cause massive problems in the d20 community.

That's why I think it's incumbent upon AV to speak up and clear the air immediately - his not doing so is, IMO, more than a bit cowardly - because he knows once he does, one of the above poopstorms will hit the fan. I don't see it as funny at all.

--The Sigil

 

[mkarol]

its [OGL] terms do not apply to the press release. The normal rules of US copyright & trademark law (including fair use provisions) therefore apply to the press release.

Im gonna throw my lawylery hat in the same rink and say that the Press Release would be covered by fair use and that 'in conjunction with' probalby would be construed to on the surface of the products and maybe in catalogs and so forth.

(While IAAL, i do not concentrate on TM law and really am speculating based on stuff i learned in law school and the purpose of this is for information purposes only; no legal representation or warranty is implied, granted, given, or gotten.)

 

[Bendris Noulg]

So, I have to ask - why is this a big deal for the public at large?

While WotC tends to be a tad more leniant with fan websites (except for blatent violations), technically they are under the same rules as the OGL and the d20 license (although the later is voluntary). For instance, my own site pushes for OGL compliancy (but not d20STL). In addition, we have direct permission from WotC to reference* material in all of the splat books, OA, FRCS, Magic of Faerun, MotP and BoVD (with the DDG and ELH going SRD in a month or three, we didn't ask for those), but we still are not allowed to utter the words "Dungeons & Dragons" within the material.

*Reference means just that; We can't reprint it, only refer back to the book. While numerous fan sites make such references without permission, and presumably without getting in trouble, we decided that our project was too extensive to risk it.