WotC Frylock's Gaming & Geekery Challenges WotC's Copyright Claims

[BookBarbarian]

I just Googled and found this document which presumably is the one that all the fuss is about.

The copyright claim appears in a footer, together with a "last modified" time stamp. I assume the copyright claim is being made in respect of the copyrightable portions of the work as a whole rather than the stat blocks. For instance, it contains the following non-stat block text (which somewhat ironically I reproduce here for the purposes of review/commentary):

I made changes to several stat blocks in order to reconcile them with the table on page 274 of the Dungeon Master’s Guide, Monster Statistics by Challenge Rating. In short, monsters over CR 5 are typically underpowered with respect to how much damage their Actions do. I suspect that the reason for this is related to the fact that the Monster Manual and Dungeon Master’s Guide were released separately. While that time difference is relatively short, I suspect the two were written independently and thus aren’t in sync. I also made a few changes because I found the monsters boring.​

​

In case you want to revert these stat blocks to their original numbers and powers, here are the original stats as they appeared in the Monster Manual. Follow these instructions, and everything will be the same.​

He also has spell descriptions which clearly are different from the WotC ones - that's what makes his stat blocks "one-stop". I haven't read his blog about spell blocks yet (is it up?) and so don't know whether or not he believes that he can enjoy copyright in respect of those, or at least thinks there is a chance that he may do so.

It's been years since I've seen that. I forgot how much I liked those spell descriptions right there in the statblock.

 

[S'mon]

Of the lawyers who post on this thread the one with whom I've had the most profitable discussions about IP is @S'mon. If he has the time and inclination, I'd be curious to learn what he thinks about this.

I believe a complete stat block would be held to be copyright protected, but the information held in the stat block, divorced from its formatting, might not be held protectable. But that may well vary by jurisdiction. I think the information alone might not be regarded as a 'literary work' under UK law (Copyrights Designs & Patents Act 1988). But the formatted stat block would be, and would meet both the UK 'skill labour and effort' standard and CJEU 'author's own intellectual creation' standard. It should also meet the US Supreme Court creativity standard from Feist.

I think it's very likely that something like "Orc: AC 13 hp 15 ATT +5/d12+3 STR +3 IN -1 CO +3 DE +1"would not be held to infringe any WoTC copyright; and that is how I would present monsters in a non-OGL D&D-compatible product.

Edit: Looking at Frylock's stat block, it looks highly derivative of the WoTC 5e stat block. While I can see arguments either way, I would tend to think this is quite likely to be found to be infringing by a moderately WoTC-friendly US court. I've seen much more egregious findings, eg in GW vs Chapterhouse a judge ruled that GW owned a copyright in large shoulder pads - an artistic element they had obviously taken from 2000AD comic strips. At the very least Frylock needs a good lawyer if he's not going to use the OGL.

 

[S'mon]

His essay goes into some depth, and is an interesting read. But here's his conclusion: "If stat blocks don’t go beyond the traditional description of the traits of a mythological creature, or how those traits are expressed properly within the context of 5th edition mechanics, then the game designers have no right, nor should they, to forbid them from being republished by a third party. Drawing that line can be difficult, but even if there’s an arbitrary choice being made in a stat block, it still may be safe to republish, as that choice must represent a modicum of creativity to warrant protection. A stick figure is creative in nature and thus copyrightable subject matter, but most of them aren’t creative enough in practice to warrant a copyright. Some are. For the vast majority of stat blocks, the analysis is easy, and you should be able to republish them. Just keep in mind that large companies are better able to finance a lawsuit than you are."

It's not legal advice, and I'm not enough of an expert to evaluate it in any way, but it's certainly interesting.

I don't think this makes much sense legally. Assigning stat values to an existing mythical creature meets creativity standards under US Feist standard (or the EU Own Intellectual Creation standard) IMO - and if it does not, then assigning stat values to a made-up creature doesn't either, afaics.

There is a reasonable argument that the stat information alone - sans formatting - is not something in the nature of a copyright work, but he doesn't appear to be making that argument.

 

[AriochQ]

Not a lawyer, but even just reviewing the Wikipedia entry on Feist, it seems that stat blocks demonstrate a level of creativity that meets the very low standard set by that case. If it was readily apparent to everyone that a cyclops had 22 hit points, then there is no creativity. But, assigning a specific hit point value to a cyclops, along with attacks, special abilities, etc. seems to involve a lot of creativity. Therefore, it should be copyrightable.

Additionally, the formatting and presentation is very similar. The decisions relating to formatting are clearly creative in nature.

 

[pemerton]

I don't think this makes much sense legally. Assigning stat values to an existing mythical creature meets creativity standards under US Feist standard (or the EU Own Intellectual Creation standard) IMO - and if it does not, then assigning stat values to a made-up creature doesn't either, afaics.

There is a reasonable argument that the stat information alone - sans formatting - is not something in the nature of a copyright work, but he doesn't appear to be making that argument.

I took his argument to be something like this: there's no creativity in coming up with the idea of a tough cyclops; and assigning a hp number that reflects the toughness of a cyclops is just game rules - which (he says) are not copyrightable - used to express that idea.

So he seemed to be trying to connect the no copyright in rules idea to an argument that there is no original creatitivy because the fiction is, or is derivative of, public domain fiction.

Is there any sense in that argument?

 

[Scrivener of Doom]

I'm furious about this. It's not just that the argument is quite weak but it's the risk it poses to normal fans who like to post things online and take advantage of WotC's rather generous fan site policy.

Now he's drawn a line in the sand, WotC is going to have to respond. And they're not known for using smart lawyers - remember the clowns who pulled the PDFs years ago because they claimed it fuelled piracy? Hopefully the success of 5E means they have smarter lawyers now.

 

[S'mon]

I took his argument to be something like this: there's no creativity in coming up with the idea of a tough cyclops; and assigning a hp number that reflects the toughness of a cyclops is just game rules - which (he says) are not copyrightable - used to express that idea.

So he seemed to be trying to connect the no copyright in rules idea to an argument that there is no original creatitivy because the fiction is, or is derivative of, public domain fiction.

Is there any sense in that argument?

I don't think so, no. In Feist a Yellow Pages directory met the creativity standard through the selection and arrangement of the factual information, though a white pages alphabetical telephone listing did not.

Anyway the formatted stat block is clearly a copyright work and his version looks like a near copy of it.

If I am a WotC lawyer all I have to do is say he took our work and made a near identical copy - a derivative work. I don't need to risk an argument over whether information is copyrightable sans formatting. That looks like an easy win to me.

The idea of a tough cyclops is not a copyright work, but any particular expression of that idea can be.

 

[GreyLord]

Interesting reply of his.

Numbers themselves probably wouldn't be copyright protected, but when put in specific orders and in specific patterns, they become something that need to be defended typically, especially if someone else is slapping their own copyright notices on the owned material...IMO of course.

His response seems sort of an overboard response in relation to the notice he was given. Not sure aggravating the sleeping dragon is the wisest of moves.

I think if Hasbro wants to pursue it (and no definitive idea if they are even interested in doing so, much less would do so), from what I have seen in this thread thus far on his postings...it is not going to go the way he thinks it will.

Just remember, Katy Perry just lost a court case based on a LOT LESS of similarity than his stat blocks...which, though different mediums may not seem to pertain to this, probably have a lot more in relation than at first glance.

The worst case scenario (and hopefully not even on the horizon of thinking yet) is that due to someone acting like this, WotC acts aggressively to end a LOT of the freedom they have allowed in respect and regards to the OGL and SRD.

 

[S'mon]

BTW in EU law I think the information in the stat block would likely not be copyright protected, but could fall under the database Unauthorised Extraction right if you took a lot of it (not just one monster for a game) - there is not much that does fall under the Database Right since the CJEU pretty well excluded factual information. So as an academic lawyer quite exciting to see something that might fall into the narrow gap of not copyright but database protected!

 

[pemerton]

@S'mon - thanks for the replies which as always are clear and intelligent!