Fan sites to keep the edition alive?

[pemerton]

Reaper sells an 'oxidation beast' miniature which can be used as a rust monster.

Who owns the copyright in the rust monster image? I gather that Gygax/TSR took it from a Japanese plastic toy.

 

[S'mon]

Who owns the copyright in the rust monster image? I gather that Gygax/TSR took it from a Japanese plastic toy.

Copyright only protects vs copying, and a work can be both copyright protected and copyright infringing at the same time. So a picture of a rust monster owned by TSR>WotC could infringe a Japanese company's copyright at the same time as a rust monster miniature by Reaper could infringe WotC's copyright.

 

[Jester David]

Surely WoTC just issued a breach-of-OGL notice, as required by the OGL, the target complied, and once they had complied their site could go up again. AIR by their own OGL license WotC can't sue you if
you comply with their notification order in the grace period. This was pointed out to me many
years ago by OGL users as one of the main benefits of the OGL. It means you should be able to use it without needing a lawyer.

Nope.
Link
Wizards of the Coast staff has been asked a few times why they don't just talk to people, asking for infringing material to be removed first instead of sending Cease & Desist letters and winking through lawyers. They've replied that a C&D is the minimum and least severe response they can make. Which isn't required by law so that's their corporate policy.

This is likely Hasbro policy at work. Big companies cannot personally respond to small infractions so they rely on C&D as first contacts, to weed out non-serious infractions. WotC has to do the same. Which means if a WotC has a dispute with you, you WILL need a lawyer.

 

[Jester David]

That is not a counterexample to what S'mon said, though - you're talking here about a commercial violation of WotC's IP rights.

S'mon referred to non-commercial sites. You're talking here about someone selling books. Just as with the raising of money via kickstarter, that's commercial violation of WotC's IP rights, and people who do that sort of thing (i) are taking their chances, and (ii) would be crazy to rely on opinions from a fan forum to ascertain their legal position, especially in as litigious a society as the US.

But in both cases, the material began as non-commercial ventures. The commercial violation was the result if no one stopping to question the legality of a non-profit venture.
You don't always plan to be commercial for the start. When both strips started Kickstarter wasn't even an option. Who know's what's going to happen in 5 years.

And what counts as non-commercial? If you ask for donations to maintain the site, does that count? I run a webcomic and there are ads. Does that make it a commercial venture? Even if the ads earned less than 1% the cost to host the site?

And currently it's WotC policy to only go after commercial sites. That could change. Especially if 5e is a little less successful and they start looking at fan sites as costing them sales. Or some new management has different ideas regarding sharing content.
It's an "ounce of prevention" issue.

Yes. WotC have always made it clear that they regard the yuan-ti as highly protected IP: see the definition of Product Identity in the 3.5 SRD, the absence of yuan-ti from the 4e SRD, and the prohibition on publishing derivative artwork of yuan-ti in clause 5.7 of the GSL.

Right. And if they'd asked online it would have been nice if someone had said what you just said rather than "talk to a lawyer." Or advised the author of the potential violation on their own.

 

[Jester David]

As a side comment, there are currently three posts discussing the OGL and legalities.
1 2 3
It'd be extremely annoying if the first couple posters in each just replied with "I'm not qualified to talk about that, discuss it with your lawyer."

 

[D'karr]

It'd be extremely annoying if the first couple posters in each just replied with "I'm not qualified to talk about that, discuss it with your lawyer."

Actually that would be better and way more helpful than most of the advice/opinions given by people that are not lawyers in that field. There's a lot of that "advice' going around that is simply unhelpful, misconstrued, and misleading. If people come to a forum to ask for legal advise they are already stepping in it. The best advice would be to send them to their lawyer. The conflation of copyright, trademark, service marks, trade dress and a hundred different things usually serves more to muddy the waters than a succint "I'm not a lawyer, and you should consult one."

I've seen a lot of advice that seems very authoritative, usually coming from "backroom" lawyers. This advice usually serves the purpose of making the "lawyer" seem like he/she knows what they're talking about. However, it is mostly passing incorrect information. Even when well meant that is not helpful at all.

 

[S'mon]

As a side comment, there are currently three posts discussing the OGL and legalities.
1 2 3
It'd be extremely annoying if the first couple posters in each just replied with "I'm not qualified to talk about that, discuss it with your lawyer."

I'm saying that you should talk about what you understand, and not talk about what you don't understand. eg if you have studied and understand the OGL then sure, give informal advice on it. Likewise if you don't understand something then don't attempt to advise on it. And if you're not sure, then make that clear in your comments, don't attempt to seem more authoritative than you actually are.

eg sometimes I say "Well I'm a British IP lawyer, not an American IP lawyer..." to make clear I'm not an expert on the intricacies of the Lanham Act, say. And sometimes some geezer who's not a lawyer and really knows nothing at all about IP law will say that my views should therefore be dismissed, because he's American and I'm not. Well, the geezer might have a better native intuition than me re the aggressive nature of the US courtroom and the litigious nature of US corporations, but his absence of actual knowledge of the law will still let him down when it comes to discussing how a court will actually decide a case. Bluster only gets you so far, even in the US court system.

 

[S'mon]

Actually that would be better and way more helpful than most of the advice/opinions given by people that are not lawyers in that field. There's a lot of that "advice' going around that is simply unhelpful, misconstrued, and misleading. If people come to a forum to ask for legal advise they are already stepping in it. The best advice would be to send them to their lawyer. The conflation of copyright, trademark, service marks, trade dress and a hundred different things usually serves more to muddy the waters than a succint "I'm not a lawyer, and you should consult one."

I've seen a lot of advice that seems very authoritative, usually coming from "backroom" lawyers. This advice usually serves the purpose of making the "lawyer" seem like he/she knows what they're talking about. However, it is mostly passing incorrect information. Even when well meant that is not helpful at all.

I agree. If you do actually know about something - and plenty of people who are not practicing lawyers do know something about the difference between tm and (c), or they're a games publisher with a good understanding of the OGL or GSL - then sure, talk about what you know. But if you don't understand then don't make posts that appear to claim understanding. If your advice essentially boils down to "I don't understand the law, but I think what you're doing is risky", then say that - don't post long conflations of TM/(c)/Design Right et al which are inaccurate and don't really say more than 'be careful'.

 

[S'mon]

Nope.
Link
Wizards of the Coast staff has been asked a few times why they don't just talk to people, asking for infringing material to be removed first instead of sending Cease & Desist letters and winking through lawyers.

BTW it looks to me from your link that WoTC sent exactly the breach-of-OGL notice* that the OGL says they must do before they have a right to sue; ie the OGL ties WoTC's own hands (and not only did the plushie guy not get sued, he apparently even got a license to make his plushie!). What do you think is the difference between "talking to people asking for infringing material to be removed" and "sending Cease & Desist letters and winking through lawyers"? Do you want them to have non-lawyers write to the plush toy people asking them to stop making the toy? Having non-lawyers deal with legal matters seems pretty risky for WoTC to do.

*Although it's hard to tell without seeing the text. For all I know the WoTC letter writer may have been as incompetent as the Rusty & Co guy makes out.

Edit: Actually I can't find a reference to the OGL anywhere on http://rustyandco.com/ - which makes the presence of rust monsters in the SRD completely irrelevant. It sounds as if WoTC were trying to claim an infringement of copyright, which does seem very weak especially given that the shape of rust monsters was created by a Japanese toy company, not by WoTC, and the concept "insect monster that eats rust" is not likely protectable. So yes this seems different from the Ema's character sheets type situation; there doesn't seem to have been any good reason to send that C&D letter.

 

[Anjohl]

No reason it CAN'T be here. The next big thing is always going to get more talk and traffic than the same old stuff, but there's plenty of 4e talk going on, too. Heck, my last 2 or 3 articles have been more useful for 4e players than anyone else!

Makes you wonder though, will people pine for 4th Ed after Next releases the same way that people pine for 3rd/3.5 now?