TSR TSR3.5 Launches IndieGogo Campaign to "Stop" WotC

The latest in the TSR3 saga, which has gone quiet for a while, is a new IndieGoGo campaign launched to "stop Wizards of the Coast". They cite wrongful bullying of TSR, and refusal to answer requests that WotC show TSR "proof of their claims" (although the campaign page doesn't mention what those claims are).

The IndieGoGo campaign was launched yesterday and has so far raised $675 (at the time of writing).

The action TSR seeks is a "Trademark Declaratory Judgement of Ownership" which is a court declaration about the status of something in dispute.

TSR has launched a campaign to stop Wizards of the Coast

Become a Champion of TSR and Support TSR’s campaign against Wizards of the Coast!

TSR is taking a stand against Wizards of the Coast (“WOTC”) and its wrongful bullying of TSR, our trademarks, and its public libeling and slander of all those who helped create TSR based Dungeons & Dragons and products.

Wizards of the Coast has continually bullied TSR regarding TSR’s legally owned Trademarks. Wizards of the Coast has refused to answer all of TSR's repeated requests that they show any proof of their claims. Wizards of the Coast has the vast resources behind them and is implying to bring them to bear down on TSR.

The new TSR suffered widespread pushback when it launched, which they blamed on WotC, claiming that they were under a "coordinated assault across various channels being mounted.... by [WotC]" The company announced itself earlier this year, having acquired the TSR trademark after the previous holder accidentally let it lapse. It was run by Ernie Gygax, Justin LaNasa, and Stephen Dinehart. After several weeks of controversy, the company split into two -- Wonderfilled (Stephen Dinehart), and TSR (Ernie Gygax and Justin LaNasa).

TSR - TSR3 Blames Widespread Pushback On WotC

In an unexpected turn of events, the primary individuals behind TSR3 have claimed the pushback they've received on social media and elsewhere was orchestrated by .... D&D publisher Wizards of the Coast (a company which has thus far remained completely silent on recent events). TSR3 is run by...

www.enworld.org

The page also indicates an intention to "fight to have WotC's legacy product disclaimer removed" from older products (that's the disclaimer on the older books available on DMs Guild which indicates that those books are products of their time) by claiming that the disclaimer portrays the creators of those older products as "as supporting those alleged prejudices, stereotypes and bigotry, wrongfully claimed to be part of those products".

TSR will also Fight to Have the WOTC Legacy Disclaimer Removed

TSR is suing WOTC for Trademark Declaratory Judgement of Ownership . TSR will also pursue in the near future having WOTC remove the legacy content disclaimer placed on TSR based Dungeons & Dragons and other products, and retractions of any other libel and slander which alleges that racism and other heinous beliefs are incorporated into those products.

This disclaimer attempts to make a statement of fact argument, and therefore paints all of the writers, editors, artists and consumers of those products as supporting those alleged prejudices, stereotypes and bigotry, wrongfully claimed to be part of those products. This statement by Wizards of the Coast opens the possibility for the producers and players of these "Legacy Products" to face ridicule, and face the labeling as "bigots", "racists", "misogynists", and worse Cyber & Physical Attacks!

Wizards of the Coast legacy content disclaimer.

"We (Wizards) recognize that some of the legacy content available on this website does not reflect the values of the Dungeons & Dragons franchise today. Some older content may reflect ethnic, racial, and gender prejudice that were commonplace in American society at that time. These depictions were wrong then and are wrong today. This content is presented as it was originally created, because to do otherwise would be the same as claiming these prejudices never existed. Dungeons & Dragons teaches that diversity is a strength, and we strive to make our D&D products as welcoming and inclusive as possible. This part of our work will never end".

TSR3's Justin LaNasa spoke about the campaign in a YouTube video.

TSR - Companies & Freelancers Distance Themselves From The New TSR

The new TSR (which I refer to as TSR3 to avoid confusion) has doubled down on its stance--which has been widely condemned online--via an ongoing series of tweets and replies from its TSR Games, Giantlands, and Dungeon Hobby Museum social media accounts (possibly operated by Justin LaNasa) in an...

www.enworld.org

 

[Staffan]

Also, the agreement you make with one bookshelf is super easy to find. Literally everyone (including me) who sells things there has seen the agreement because we all agree to it. Demanding WoTC provide the agreement is even dumber, because it's freely accessible to all.

WoTC was using a vendor to sell their products with those marks. End stop. Happens ALL THE TIME with companies. It makes zero sense to try to argue that WoTC wasn't selling it but OB. When you sell something on Etsy or eBay, it's still you selling it.

I remember looking at the contract provided for selling things on the DM's Guild, and I remember it talking about the payout to the writer being in the form of royalties. I don't know if it's the same on the regular sites or if that's a particular construct for the DM's Guild, and I can't get to the publisher agreement without signing up as a publisher. But at least to me, royalties indicate something different than the traditional sales model. Royalties sounds to me like OBS is the formal creator/publisher of the thing, and they're paying the actual creator for the privilege of publishing it. In the traditional sales model, a publisher makes a thing, sells it to a distributor who sells it to a retailer, and eventually it gets sold to a customer (hopefully). It sounds like that might be the angle TSR is going for.

 

[Nikosandros]

I remember looking at the contract provided for selling things on the DM's Guild, and I remember it talking about the payout to the writer being in the form of royalties. I don't know if it's the same on the regular sites or if that's a particular construct for the DM's Guild, and I can't get to the publisher agreement without signing up as a publisher. But at least to me, royalties indicate something different than the traditional sales model. Royalties sounds to me like OBS is the formal creator/publisher of the thing, and they're paying the actual creator for the privilege of publishing it. In the traditional sales model, a publisher makes a thing, sells it to a distributor who sells it to a retailer, and eventually it gets sold to a customer (hopefully). It sounds like that might be the angle TSR is going for.

The kind of deal that a third party has with DM's Guild is completely different form the deal that WotC has. WotC owns all the IP, while a third party makes a deal in which they can use that IP.

 

[Weiley31]

I don't know if they have a Kraken. They might be able to scare up a Karen. Will that do?

Depends on if they chose that Patron for their Warlock character that was rolled up.

 

[Morrus]

I remember looking at the contract provided for selling things on the DM's Guild, and I remember it talking about the payout to the writer being in the form of royalties. I don't know if it's the same on the regular sites or if that's a particular construct for the DM's Guild, and I can't get to the publisher agreement without signing up as a publisher. But at least to me, royalties indicate something different than the traditional sales model. Royalties sounds to me like OBS is the formal creator/publisher of the thing, and they're paying the actual creator for the privilege of publishing it. In the traditional sales model, a publisher makes a thing, sells it to a distributor who sells it to a retailer, and eventually it gets sold to a customer (hopefully). It sounds like that might be the angle TSR is going for.

It is weirdly phrased, yes, but the royalties are on sales. DTRPG is the store selling the thing and paying the publisher royalties on those sales. Selling it and publishing it aren't the same thing, though -- EN Publishing is publishing WOIN, Level Up, ACE!, Judge Dredd, etc., and DTRPG is one outlet selling those books. There is no suggestion that DTRPG publishes all those tens of thousands of books it sells, and more than any other store does.

 

[Weiley31]

I'm confused about the continued anger over the inclusion of the legacy product disclaimer acknowledging them as products of their time.

The great majority of people had opinions/beliefs at times that coincided with general cultural/societal beliefs that are no longer in style, and in some cases are now known to be wrong. As long as we're willing to understand that we can have once held those beliefs, but no longer do and are working to be better, it doesn't mean you're a terrible person. These disclaimers are not calling any of these authors terrible people, but some are taking it as saying such.

Give it a decade or two, we'll likely realize other things that are "products of their time" now that we'll have grown past.

The disclaimer is the most reasonable and unintrusive way to acknowledge that and keeping the original work complete and unaltered.

Yeah I find their (TSR) anger over it stupid. If I/people want to buy legacy content knowing full well what's in it, then I/people will. Better than having it scrubbed away in oblivion where it's removed from the Internet or the headache of dealing with scalpers. Ultimately people can vote with their wallet. And then people can also take what they like that's good and ignore what's negative in there.

 

[Weiley31]

It's not just if you hold those beliefs. For a lot of people, any bad light shining on the things you embraced when you were younger or maybe even got you through some tough times in adolescence is like a bad light shining on you. You should see how people freaked out about the disclaimers on old episodes of Sesame Street when they were run on streaming media. And those weren't even about old attitudes as much as they were about old teaching methodologies. (A lot of people don't know that Sesame Street, from the beginning, involved a lot of planning and use of researched teaching methods - still does.)
People often look back on these things with nostalgia and fondness - and now these upstart new generations are saying there's something wrong with them?!? So yeah, a lot of people get defensive about that even if they're not personally particularly racist, sexist, homophobic, etc. It can be a bit like someone criticizing your mother. I may know she's cantankerous and grouchy, but complain to me that she is and my gut reaction is to be kind of pissed off. It may not be rational, but that rational part has to keep that gut reaction under control in order for me to be more constructive about someone taking a pot shot at my mother... or sticking a content disclaimer on the things I loved as a kid.

Especially if you're on Enworlds. (*It's the best site for DND news and stuff for me, but man some of the heated topics on here that I've read on here made me go to myself "Man, I must be a terrible person just cuz I like cheesecake, or I like my samurai asthetics Hobgoblins.)

 

[pemerton]

I remember looking at the contract provided for selling things on the DM's Guild, and I remember it talking about the payout to the writer being in the form of royalties.

<snip>

Royalties sounds to me like OBS is the formal creator/publisher of the thing, and they're paying the actual creator for the privilege of publishing it. In the traditional sales model, a publisher makes a thing, sells it to a distributor who sells it to a retailer, and eventually it gets sold to a customer (hopefully). It sounds like that might be the angle TSR is going for.

WotC owns all the IP, while a third party makes a deal in which they can use that IP.

It seems to me that both these things I've quoted are correct.

The proprietary and hence contractual structure of physical books sales, and that of PDF/POD sales, are different. With physical books, goods are sold by the publisher to the wholesaler/distributor to the retailer to the customer. In relation to any IP: none of the purchasers gains permission to copy or reproduce any copyright works (other than bits, like character sheets, that are expressly labelled with such permissions, or bits that are implicitly licensed as part of the play of the game - eg reproducing weapon tables on your PC sheet); and the wholesaler and retailer (typically) do not present themselves, and are not permitted to present themselves, as being affiliated with the publisher.

But with PDFs/POID, DriveThru is being licensed to reproduce copyright works (electronic files and text) and to reproduce and further distribute those files under trademarks. The consumer, similarly, does not acquire a physical object (a book) that once belonged to the publisher. If downloading a PDF, they themselves reproduce a copyrighted file/text pursuant to a licence; if buying a POD book, they are buying something from DriveThru which it printed under licence from the holder of the copyright in the file/text.

I think this is the underlying rationale of the TSR3 vs WotC lawsuit - that it is DriveThru, not WotC, that has been trading under the relevant trademarks; and that, in fact, DriveThru was not doing so under licence from WotC. I don't know if that's a plausible argument - my instinct is that it's not, but I don't know either the commercial or the legal details. I also don't know how that argument is reconciled with TSR3's claim that the trademarks are available for registration by it, but maybe they are going to argue that the trademarks have not distinguished DriveThru's good or services in the course of trade? Again, I'm not enough of an IP lawyer to try and conjecture these arguments.

Maybe it's worth adding that legal arguments can be put together by a competent firm, and be coherent at a surface level, while ultimately being very weak. The firm ultimately can't do any better than what its client's circumstances permit. And sometimes a client's circumstances are terrible, but they insist on going ahead with their claim.

 

[Snarf Zagyg]

It seems to me that both these things I've quoted are correct.

The proprietary and hence contractual structure of physical books sales, and that of PDF/POD sales, are different. With physical books, goods are sold by the publisher to the wholesaler/distributor to the retailer to the customer. In relation to any IP: none of the purchasers gains permission to copy or reproduce any copyright works (other than bits, like character sheets, that are expressly labelled with such permissions, or bits that are implicitly licensed as part of the play of the game - eg reproducing weapon tables on your PC sheet); and the wholesaler and retailer (typically) do not present themselves, and are not permitted to present themselves, as being affiliated with the publisher.

But with PDFs/POID, DriveThru is being licensed to reproduce copyright works (electronic files and text) and to reproduce and further distribute those files under trademarks. The consumer, similarly, does not acquire a physical object (a book) that once belonged to the publisher. If downloading a PDF, they themselves reproduce a copyrighted file/text pursuant to a licence; if buying a POD book, they are buying something from DriveThru which it printed under licence from the holder of the copyright in the file/text.

I think this is the underlying rationale of the TSR3 vs WotC lawsuit - that it is DriveThru, not WotC, that has been trading under the relevant trademarks; and that, in fact, DriveThru was not doing so under licence from WotC. I don't know if that's a plausible argument - my instinct is that it's not, but I don't know either the commercial or the legal details. I also don't know how that argument is reconciled with TSR3's claim that the trademarks are available for registration by it, but maybe they are going to argue that the trademarks have not distinguished DriveThru's good or services in the course of trade? Again, I'm not enough of an IP lawyer to try and conjecture these arguments.

Maybe it's worth adding that legal arguments can be put together by a competent firm, and be coherent at a surface level, while ultimately being very weak. The firm ultimately can't do any better than what its client's circumstances permit. And sometimes a client's circumstances are terrible, but they insist on going ahead with their claim.

Except that none of this is how trademarks work.

It is not sufficient to say, “IP” when discussing these issues. Marks (trade and service) present very different issues than copyright or patent.

To make a simple analogy- if A has a mark, and B prints it on a T-shirt for them, and C sells that T-shirt in their on-line store, A does not lose the mark. Because the mark is associated with A and A’s product, not the printer or the seller.

Further, unlike other IP, in America marks have both statutory (federal and state) and common law protection.

 

[Nikosandros]

I don't think that there is a license from WotC. I think that WotC is selling the products through a storefront that takes a cut from the sales.

 

[pemerton]

Except that none of this is how trademarks work.

It is not sufficient to say, “IP” when discussing these issues. Marks (trade and service) present very different issues than copyright or patent.

To make a simple analogy- if A has a mark, and B prints it on a T-shirt for them, and C sells that T-shirt in their on-line store, A does not lose the mark. Because the mark is associated with A and A’s product, not the printer or the seller.

Further, unlike other IP, in America marks have both statutory (federal and state) and common law protection.

I'm aware of all the above. I mentioned or alluded to it in my post.

But what is being traded, and who is the trader? The relationship between WotC and DriveThru seems, to me, to have as much in common with the relationship between a franchisor and a franchisee as it does with the relationship between the Coca Cola company and a corner shop with a drinks fridge. Because DriveThru is not purchasing any goods from WotC and then selling them on. It is providing its own services (software services) and selling goods that it produced (POD books) under licence from WotC.

If WotC had been selling - via traditional distribution networks - Star Frontiers books that it had had printed, with the TSR logo on them, then I'm 100% confident that the TSR3 pleadings would not look like they do.

As I also posted, I am not making any comment on the strength of TSR3's argument. But I'm responding to some posts upthread that have been confused by the reference, in the pleadings, to licence relationships.