Hopefully this doesn't count as a Necro, but I have a question for the seemingly wise and knowledge people within this thread. If I were to write an adventure, a murder mystery, and within this adventure I made references to players needing to make investigation checks or medicine checks would that violate copyright? Additionally if I made references to the free D&D rules online, I.E. telling the reader they can find stats for the monsters used in the adventure there, would that be violating copyright? I want to thank anyone who responds in advance, as I am not confident in my abilities to understand how the copyright laws work in regards to writing such as this.
First of all:
I am not a lawyer. If you're concerned, consult a lawyer before proceeding. Do not rely on legal advice from an Internet forum. Now, that said, here's my take on the subject:
The question is not so much "Will it violate copyright?" as "Will it provoke legal action from WotC?"
My understanding is that what you're describing is perfectly legal; it's what KenzerCo did with "Kingdoms of Kalamar" in 4E. They put "For use with 4th Edition Dungeons and Dragons" right on the cover and Wizards didn't say boo. However, the problem with U.S. copyright law is that you have to pay for your own legal representation regardless of the outcome of the suit. That gives a big company the ability to muscle out most independent publishers even when the independent publisher is legally in the right--you may win the suit, but you'll go broke paying your lawyers, so you might as well save yourself a lot of pain and comply with WotC's demands. KenzerCo has an enormous advantage here, because Dave Kenzer, the president, just happens to be a lawyer specializing in intellectual property law. He can go toe to toe with WotC in the courtroom, and Wizards knows that. Furthermore, if Kenzer and Wizards
do slug it out in court and Kenzer wins, he'll establish a precedent that will make it a lot easier for other publishers to follow his lead. So WotC won't mess with KenzerCo unless they think they can win on the merits.
(And on the other hand, Kenzer also knows the ins and outs of the law well enough to avoid the dangers. Copyright isn't the only thing you have to worry about; there's also trademark protection to consider. You
can refer to "Dungeons and Dragons" in your adventure--that's called "nominative use" of someone else's trademark, and it's legal--but you have to be very, very careful how you do it. If a buyer could be confused into thinking your adventure was an official D&D publication, you may be infringing WotC's trademark. Likewise, if the formatting looks too WotC-like, you may be infringing their trade dress. And unlike copyright, the owner of a trademark must actively defend that trademark or risk losing it. You could inadvertently put Wizards in a position where they
have to sue you.)
So, what it boils down to is that unless you are a) rich, b) a copyright lawyer, or c) so clearly in the right that you can count on a judge dismissing the case, Wizards can probably shut you down if they want to. The question is, do they want to? If you're putting it out there as fan work and not getting money for it, and not infringing any trademarks, it's highly unlikely. Filing lawsuits against your customers makes for terrible PR, especially when your business model depends on a small, loyal, highly engaged customer base. If you're selling it for profit, they'll be looking at you more closely. That doesn't mean they'll come after you, though. It's reading tea leaves at this point. (For all the
sturm und drang around the GSL, I don't recall them suing anybody during the 4E era, and there was some third-party material published.)
At some point in the not too distant future, Mike Mearls has promised us a "program" that covers fan work and possibly third-party publishers. What that means is anyone's guess, but it will probably clarify a lot of these issues. I recommend waiting to see what we get. It may well be that your proposed adventure will be covered by a safe harbor arrangement much like the OGL, in which case you can proceed without fear. If not, go find yourself an IP lawyer and see what s/he says.
