7 Things To Remember About Copyright Before You Distribute That Cool Thing You Made!

[Morrus]

With all the people making awesome homebrew stuff for D&D 5E, and WotC sending Cease & Desists to a couple of websites, I've put together a short article detailing some myths about copyright, and how not to get into trouble. Hopefully it'll help some folks making mistakes which could cause them difficulty later on.

Some of this may seem basic or obvious. Apologies if so!

I am not a lawyer. This is not legal advice. Actual lawyers (and there are many here at EN World) are more than welcome to correct or add to this. That won't be legal advice, either. For legal advice, you need to hire a lawyer.

1. Copyright applies to a specific expression of an idea. In other words, in the case of RPGs, it refers to specific text or images, though it can also refer to audio or video and other mediums. If you're copying and pasting, you're almost certainly barking up against the wrong side of copyright law.

2. It does not matter whether or not you make a profit from it. Copyright is not linked to profit, or to intention to profit, or to inability to profit. What matters is that intellectual property is being reproduced and distributed. This is for a whole host of reasons, but you're not being generous when you give away someone else's stuff.

3. It does not matter if the thing you're copying is free. It still belongs to the copyright holder. It's not your place to decide what's in their best interests, or what does them no harm; that's their decision to make. The D&D Basic Rules might be available for free, but they still belong to WotC.

4. Yes, there is such thing as "fair use". It varies a little by jurisdiction, but generally it means you can excerpts for the purpose of news reporting, parody, review, educational purposes, and a few other things. Fair use, when challenged, is usually decided on a case-by-case basis. In the UK it's known as "fair dealing" and is more restrictive than in the US.

5. Trademarks and patents are entirely different things. They are separate to copyright.

6. Ideas and processes cannot be copyrighted. This means that the common phrase "rules cannot be copyrighted" is true; however, remember that the text that tells you about the rules is copyrighted.

7. A contract or license which you agree to (i.e. the OGL, or a EULA, or a playtester agreement) can change the playing field. The OGL, for example, grants you certain freedoms in exchange for your giving up certain others. You can't sell something (in this case a right*) for a benefit then change your mind later.

*Of course, some rights can't be waived. IP-related rights aren't usually amongst those.

 

[prosfilaes]

How about

9. It's not good enough that it's old, or that someone told you it was public domain. In the US, the general rules is 95 years from publication; in the UK and EU and many other places, 70 years from death of the author; in India 60 years from death; in the largest chunk of the world (by head count) (including Canada) 50 years from death. The EU/US/Canada difference means, for example, that an American can use the early H.G. Wells works but not the late ones (all of which are in copyright now and out of copyright in 2017 in the EU), all but the last Sherlock Holmes works (which are all out of copyright in the EU) and basically nothing by C.S. Lewis (who is out of copyright in Canada but not the EU.) Note that many of the things you can't use are by authors who have been dead for decades.

(Note also that the US had a complex copyright renewal system that in 1996 had foreign works restored to copyright. The German silent Metropolis may once have been PD in the US, but it's not now. It's a Wonderful Life was once thought to be PD, but now copyright is asserted on the music and thus the movie. Things that were once PD in the US might not be anymore, and things used as if they were PD may now have people claiming copyright on them (both correctly and not).)

 

[Lindeloef]

[...] Hopefully it'll help some folks making mistakes which could cause them difficulty later on. [...]

Man, you are mean

 

[Jhaelen]

4. Yes, there is such thing as "fair use". It varies a little by jurisdiction, but generally it means you can excerpts for the purpose of news reporting, parody, review, educational purposes, and a few other things. Fair use, when challenged, is usually decided on a case-by-case basis. In the UK it's known as "fair dealing" and is more restrictive than in the US.

AFAIK, 'fair use' is something specific to the US. There's definitely nothing like it here in Germany. Here's a link to a short article I found about it: http://tmtblog.minterellison.com/blog.aspx?entry=391.
So, Australia is contemplating to implement a similar law, while there's nothing like it in the EU yet. If the copyright laws are changed at all, it will certainly take quite a while until they do so.

 

[Morrus]

7 Things To Remember About Copyright Before You Distribute That Cool Thing Yo...

AFAIK, 'fair use' is something specific to the US. There's definitely nothing like it here in Germany. Here's a link to a short article I found about it: http://tmtblog.minterellison.com/blog.aspx?entry=391.
So, Australia is contemplating to implement a similar law, while there's nothing like it in the EU yet. If the copyright laws are changed at all, it will certainly take quite a while until they do so.

Australia and NZ both have 'fair dealing' variations not dissimilar to the UK ones.

The other countries with allowances for fair use or fair dealing are: Canada, Singapore, India, and South Africa.

Wherever you are, though, fair use does not let you copy a game and distribute it, whether in the form of spell cards or a website, etc. At its most generous it allows for excerpts for certain uses. It's not really applicable relevant when distributing RPG accessories and stuff.

One thing to remember is that personal use is not the same thing as distribution. You can make stuff for yourself at home.

 

[Janx]

On #5, ideas/processes are not copyrightable:

however, they are PATENTABLE. Which is effectively a similar protection (albeit with different duration, requirements, etc).

I don't know of any "entire" game rules that were actually patented, but parts of games sometimes are, like Tapping from Wizards of the Coast or the Combat Dial from WizKids.

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as a non-lawyer, one concept I am baffled that people don't get is that if you think you've found a loophole, or hear some cautionary advice that says you "shouldn't do that", you should always assume the most conservative, safest for you interpretation, which usually means "don't do it" and "consult a lawyer before trying".

If you're not a lawyer, and you ask the internet "is this clever thing I want to do legal?" and a bunch of people say "no!" then don't do it.

I've seen too many discussions (on this very forum even), where somebody's got an idea that they can do something, they refuse to actually consult a real lawyer, and they get several pointers from people who know a thing or two (like lawyers), and they refuse to listen.

Don't be that stupid guy who thinks he's found the magic exception.

 

[Umbran]

Yes, we did need such a post. Thanks, Morrus!

 

[Morrus]

On #5, ideas/processes are not copyrightable:

That's #6.

however, they are PATENTABLE. Which is effectively a similar protection (albeit with different duration, requirements, etc).

Which is #5.

Don't be that stupid guy who thinks he's found the magic exception.

You should see it on physics forums where folks think they've disproven relativity without even learning an equation.

 

[sgtscott658]

Hi-

So if I wanted to design an adventure based in the Forgotten realms and designing NPC's/ monsters from the MM and PHB, that would be a No Go?

Scott

 

[Dannyalcatraz]

Not if you want to sell it without a license to do so. And even a non-commercial release could get you in trouble. (Depends largely on how vigorously the owner defends their copyright in general.)