Congratulations to the 2015 ENnies Nominees!

Dahak · Jun 30, 2015

Steve Conan Trustrum said:
You can also find out the same way I did.

Now that I've seen which publishers directly benefited from the removal, and which publishers commented, I've been able to make an informed decision. Thank you for the assist.

Steve Conan Trustrum · Jun 30, 2015

Dahak said:
Now that I've seen which publishers directly benefited from the removal, and which publishers commented, I've been able to make an informed decision. Thank you for the assist.

Despite what you think, it wasn't about "hey, this guy's product is so awesome it could beat us so we need to get it disqualified!" Most of the publishers that submitted are, after all, veterans of doing so and are used to not winning in all (or any) of the categories they go after. It's more about the market drawing wrong conclusions if the publishers so much as say anything that could be be taken to mean something unintended, be it about the IP standing of this particular work or something else, thereby eliciting the sort of reaction you just displayed.

Putting fan content against for-profit content is simply one big minefield for companies that actually have a financial stake in both their products and their branding versus people who do not. The more the ENnies move away from being a venue of benefits for for-profit publishers versus the possibility of such risks arising, the less incentive they have to participate. No finer way could have been presented to prove that than your quoted response.

Jester David · Jun 30, 2015

Steve Conan Trustrum said:
Here's where I actually think Don runs into some major trouble with this particular product, putting aside future issues with "fan" original works applying for the ENnies. There is a very big difference between Average Joe Gamer putting together content on a website or in a downloadable text, Word, or PDF having never worked in the industry and someone with 20 years of professional experience doing so. The grey area Don's professional experience brings into the mix in this regard is one of the things EA/Bioware could have very easily used against him in a suit regarding the unapproved use of their IP. If people are legitimately asking "how can we not call this professional?" the (he believed) safe harbour Don was trying to operate from regarding this work is clearly not so safe as he thought.

I doubt EA cares what the resume is of the trademark violator. That's not going to matter.

Steve Conan Trustrum said:
It's not QUITE the same, but they can very easily be tied together when one also happens to be a professional in the industry the "fan" material was made for. And, based on how Don's work was presented to the public, it would be an incredibly easy argument to make. He didn't help himself by hosting the game on a website for which he's registered a domain that includes the IP owner's trademark. It also didn't help that he entered his work into multiple awards processes dominated by for-profit peers, quite literally releasing and promoting in his work in competition with for-profit equivalents. This fact makes it pretty difficult for him to argue any case for Fair Use protection, and the fact he's included images, trademarks, and other copyrights he admits he doesn't own and are immediately recognizable and associated with the video game means any hope of claiming his work is not derivative, as defined by copyright law, is out the window.

Right, he's very clearly in the wrong legally in terms of trademark violation. He's totally in the wrong in the eyes of the law, just as if he had plagiarized the actual rules text. And that should very much remove his entry from consideration from the ENnies. If only because the awards cannot be seen to promote copyright and trademark infringement and and IP theft.

But does that make his work "unprofessional"? That's the interesting part of the debate for me. And should fan work be considered for ENnies?

A PDF hosted on a blogger that makes use of the OGL is very clearly a fan work even though - unlike this product - it's licensed.
But what if that PDF is laid out in a professional manner? What if that product is sold as a PDF? What if it's sold as a Print on Demand book? What if it's Kickstarted? What if it's sold as a hardback book found in stores?
When does it transition from "fan work" to "professional"?

Jester David · Jun 30, 2015

Nylanfs said:
I have a question more about the art from Deviant Art that is used through out the PDF. Granted it looks like they have a pretty big attribute list, but if the artists didn't know it seems a bit shady.

DeviantArt works are often Creative Commons, so the artists don't need to be paid just attributed. So that seems on the level, especially if it's a big list.
They should be notified though, usually in a comment below the piece, but some don't add that rider.

Perram · Jun 30, 2015

Jester Canuck said:
I doubt EA cares what the resume is of the trademark violator. That's not going to matter.

Right, he's very clearly in the wrong legally in terms of trademark violation. He's totally in the wrong in the eyes of the law, just as if he had plagiarized the actual rules text. And that should very much remove his entry from consideration from the ENnies. If only because the awards cannot be seen to promote copyright and trademark infringement and and IP theft.

But does that make his work "unprofessional"? That's the interesting part of the debate for me. And should fan work be considered for ENnies?

A PDF hosted on a blogger that makes use of the OGL is very clearly a fan work even though - unlike this product - it's licensed.
But what if that PDF is laid out in a professional manner? What if that product is sold as a PDF? What if it's sold as a Print on Demand book? What if it's Kickstarted? What if it's sold as a hardback book found in stores?
When does it transition from "fan work" to "professional"?

I don't really think there is a question. A "Fan Work" is a "Professional" work when it is presented for sale or marketed to compete with other products at that level. It should also be a legal work, for all the reasons we've said above.

Once you're asking money, it is professional work... though it might not be GOOD professional work. But our industry is already filled with bad professional work, so that doesn't change much.

Dahak · Jun 30, 2015

Steve Conan Trustrum said:
Despite what you think, it wasn't about "hey, this guy's product is so awesome it could beat us so we need to get it disqualified!" Most of the publishers that submitted are, after all, veterans of doing so and are used to not winning in all (or any) of the categories they go after. It's more about the market drawing wrong conclusions if the publishers so much as say anything that could be be taken to mean something unintended, be it about the IP standing of this particular work or something else, thereby eliciting the sort of reaction you just displayed.

Putting fan content against for-profit content is simply one big minefield for companies that actually have a financial stake in both their products and their branding versus people who do not. The more the ENnies move away from being a venue of benefits for for-profit publishers versus the possibility of such risks arising, the less incentive they have to participate. No finer way could have been presented to prove that than your quoted response.

I'm glad you feel you've proved a point. Awards are about ego strokes to some degree, so why not message board posts? I have no point to prove, no ax to grind, merely coin to spend elsewhere. Again, you helped me come to that decision, whether it was your intended purpose or not does not change the result. You have my gratitude just the same.

Abulia · Jun 30, 2015

Just a bit of housekeeping but I made a statement in the update thread to tidy things up.

The statement was made to me that the ENnies does not distinguish between fan and published works. I take that to mean, IP and licensing issues aside, that I was a valid final entrant for Product of the Year. So that's something, I suppose.

Perram · Jun 30, 2015

Abulia said:
Just a bit of housekeeping but I made a statement in the update thread to tidy things up.

The statement was made to me that the ENnies does not distinguish between fan and published works. I take that to mean, IP and licensing issues aside, that I was a valid final entrant for Product of the Year. So that's something, I suppose.

It is obviously a fantastic product. I was impressed myself. Clearly we need a 'Fan Product' awards in this industry so that we can acknowledge these things without legal issues getting in the way.

Steve Conan Trustrum · Jun 30, 2015

Jester Canuck said:
I doubt EA cares what the resume is of the trademark violator. That's not going to matter.

You think that, given dilution of the copyright / trademark's commercial value is one of the more common ways Fair Use claims are shot down, his status as a professional in the relevant industry won't be relevant? You honestly think the context is the same as though he had no published credits to his name and was a car mechanic?

Defending copyright infringement based on Fair Use is all about convincing the judge or mediator about how the copyrights are perceived. There are no actual percentages or stated thresholds of pass/fail in this section of copyright law. It's VERY subjective. That being so, I imagine EA's lawyer would probably disagree with you about the relevancy of Don's status as an industry professional when Don's defense would be founded on his work being provided in a not-for profit, fan-based capacity.

But does that make his work "unprofessional"? That's the interesting part of the debate for me. And should fan work be considered for ENnies?

From all accounts, his work was VERY professional in terms of its quality. If you want to be entirely true to the term, yes it was professional because Don is a professional at creating games -- he gets paid for doing so. The question is perhaps best asked in terms of "should the general ENnie award categories be about COMMERCIAL products or all products?" to avoid confusion in the case of fan made material that is also made by professionals, such as Don. I'm not a fan of people using "professional" as a synonym for "commercial."

Jester David · Jun 30, 2015

Perram said:
I don't really think there is a question. A "Fan Work" is a "Professional" work when it is presented for sale or marketed to compete with other products at that level. It should also be a legal work, for all the reasons we've said above.

Once you're asking money, it is professional work... though it might not be GOOD professional work. But our industry is already filled with bad professional work, so that doesn't change much.

The paywall argument is tricky since the difference between something I host on my blog and something I throw on CreateSpace or DriveThruRPG is minor and really a matter of time and energy.

Arguably, Pathfinder is free as the rules are part of the PRD. And it's a copy of an established game that borrows much of the IP. You could make a case that Pathfinder is "fan work".
And Fate - both regular and accelerated - are "pay what you want" on DriveThru, so they're as close to free as you can get. It's like a "donate" button or a Patreon link.

Speaking of Patreon, what about the ENworld articles: En5sider and Trailseeker? They're for-profit and paid for by Patreon. However, the Pathfinder one is done under licence (probably) while the 5e one just skirts at the edge of copyright. Is one professional while the other a fan work?

Congratulations to the 2015 ENnies Nominees!

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