D&D General Frylock on the ‘Ineffectual OGL’
To be clear, WoTC certainly owns a copyright in pages 158-161 of the Monster Manual, and adaptations/derivative works thereof. They may not own copyright in the original White Dwarf text (& picture) describing the Githyanki, this will depend on the contracts between Charles Stross (UK), Games Workshop (UK), and TSR or TSR UK. Copyrights are not free standing concepts like patents or Trademarks, certainly not in English Law, and in the circumstances effecting a successful transfer of (c) in the original published work from Stross to TSR under the pre-1988 Copyright law would have been very tricky. Especially as Stross still held full copyright at time of publication (GW only received a licence to print and reprint once, under their own standard form contract of the era, which I saw when I submitted something to them). And I suspect that TSR was less than fully aware of the intricacies of UK copyright law.
So I suspect it is likely that one could create work derived from the original appearance of the Githyanki and that this would only risk infringing Stross' copyright as author. But this depends on the contracts. NB however if you use the OGL then you cannot do this because Githyanki are 'PI', and the OGL contract says you agree not to use WoTC-designated PI.
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People can and do publish D&D sourcebooks without using the OGL. Kingdoms of Kalamar, by KenzerCo, is probably the most well-known example. But, not coincidentally, David Kenzer is an expert in copyright law. That's the problem: If you're going to go the "fair use" route, you are walking a minefield and you need an expert to steer you along the safe path. Most designers lack that expertise and can't afford to pay for it.
The OGL provides a map. It marks off certain areas (which could in theory be navigated) and says "Look, just don't go here." It charts a path through other areas and says "The mines in these areas are deactivated"--even if you walk right over one, it won't go off. If you don't need the map, don't use it, but lots of folks benefit tremendously from that clarity. And it does give you rights you would not otherwise possess, like the right to copy-paste big sections of the SRD.
Obviously Dancey was going way over the line claiming that Wizards held a copyright on the word "strength," but that doesn't mean the OGL itself is a con.
No. He’s not using the OGL. The OGL discussion is a sideshow to his actual situation.
Flexor the Mighty!
18/100 Strength!
Ok, so gimme a summary. If he is right what is the outcome?
D
Deleted member 7015506
Guest
@S'mon
I agree fully with you, that there are certain copyrights regarding the background/history of the Gith race that belong to TSR/WotC. No doubt about that, since their history changed/evolved a lot from those humble beginnings. But let's assume, that there is a) either a contract between GW and TSR (UK) from that time defining the transfer/licensing of copyrights regarding AD&D material in that case or b) there was no formal contract for this case (very unlikely I would assume).
So in case a) with the contract, GW would automatically concede any copyright for such material to TSR once published (if it would comply with the contract between the original author (Stross) and GW!). I am sure you have better insight into that, and the publication of mentioned material would transfer the copyrights to TSR (no matter if UK or US since I would assume both are basically the same company for this purpose). Therefore the copyright for the Gith race for example is with TSR = WotC nowadays (WotC is the legal successor to TSR AFAIK = buying all rights and obligations). So no valid point for any kind of copyright infringement as Fyrlock mentioned in this case.
But in case b) if GW didn´t gain the copyright for an entry beyond the case you mentioned (as I read it one time licensing/publishing), the copyright (to certain points taking newer court cases into account) remains with the designer/author.
And since I remember that Fyrlock mentioned in one of his posts that at least in two cases WotC infringed/misused copyright, I think he is building his case on the GW/TSR (UK) subject you mentioned. Now if he takes that as an example for TSR/WotC misuse of copyright in the past, he can perhaps claim, that this misuse is a kind of "marketing" strategy from TSR/WotC, that goes on for a prolonged time = try to convince, that the claimed copyright/IP/PI by WotC is not valid and therefore justify his own claim of copyright.
I know that this idea is pretty wild, but perhaps a US lawyer on here can shed some light on such a probable case.
I agree fully with you, that there are certain copyrights regarding the background/history of the Gith race that belong to TSR/WotC. No doubt about that, since their history changed/evolved a lot from those humble beginnings. But let's assume, that there is a) either a contract between GW and TSR (UK) from that time defining the transfer/licensing of copyrights regarding AD&D material in that case or b) there was no formal contract for this case (very unlikely I would assume).
So in case a) with the contract, GW would automatically concede any copyright for such material to TSR once published (if it would comply with the contract between the original author (Stross) and GW!). I am sure you have better insight into that, and the publication of mentioned material would transfer the copyrights to TSR (no matter if UK or US since I would assume both are basically the same company for this purpose). Therefore the copyright for the Gith race for example is with TSR = WotC nowadays (WotC is the legal successor to TSR AFAIK = buying all rights and obligations). So no valid point for any kind of copyright infringement as Fyrlock mentioned in this case.
But in case b) if GW didn´t gain the copyright for an entry beyond the case you mentioned (as I read it one time licensing/publishing), the copyright (to certain points taking newer court cases into account) remains with the designer/author.
And since I remember that Fyrlock mentioned in one of his posts that at least in two cases WotC infringed/misused copyright, I think he is building his case on the GW/TSR (UK) subject you mentioned. Now if he takes that as an example for TSR/WotC misuse of copyright in the past, he can perhaps claim, that this misuse is a kind of "marketing" strategy from TSR/WotC, that goes on for a prolonged time = try to convince, that the claimed copyright/IP/PI by WotC is not valid and therefore justify his own claim of copyright.
I know that this idea is pretty wild, but perhaps a US lawyer on here can shed some light on such a probable case.
The problem here is that in UK law there is no "copyright in the Gith race", there can only be copyright in literary musical artistic & dramatic works. There is a copyright in the words Stross wrote (literary work) that were published under licence in White Dwarf. TSR think they 'acquired the rights' to Githyanki and the other Fiend Factory creatures, and the authors (Stross included) presumably signed off on something - the question is what that something said, and what its legal effect would be under the governing law, presumably English law. It is pretty hard to transfer copyright in an already published work under US law and my feeling is it is/was a good deal harder under UK law. And I have interacted enough with TSR lawyers to know they would not have had the competency to do this. But it's conceivable GW or TSR UK might have hired specialists in London with the ability to actually do this. I kinda doubt it though. Copyright was a really minor field ca 1980, GW was a small company, TSR was a mid sized US company not a a major media conglomerate. Even judges of the time deciding IP cases tended not to know IP law. Very few lawyers would have.
teounagodem
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The really important thing is our money will be for the original creators and not for pirates. We aren't not only players, but also collectors. We will buy books because later these will become our threasure.
