@doctorbadwolf
This court case seems relevant to your question: DaVinci Editrice S.R.L. v. ZiKo Games, LLC
This court case seems relevant to your question: DaVinci Editrice S.R.L. v. ZiKo Games, LLC
D&D General What Actually Is Copyright Protected In The SRD?
- Thread starter doctorbadwolf
- Start date
doctorbadwolf
Heretic of The Seventh Circle
That is very interesting! Thank you!
FrogReaver
The most respectful and polite poster ever
Lol. Probably. But also, judging by all the different lawyer's reactions and thoughts I've seen on the topic, you've probably got about as good a chance picking one of us non-lawyers and us being right as you do with picking one lawyer and having his opinion be right.
teitan
Legend
Wizards already defined what was IP and what wasn’t and trademarked what was in 2000 and the years since. They’ve pulled a Kleenex in my opinion.
Kleenex used to be a trademark and it no longer is because the Kleenex corporation failed to defend the trademark for so long that when another company launched calling their brand of tissue paper Kleenexes and they tried to sue the Kleenex corporation lost and could not enforce their rights to the name or use it in their logo etc.
Wizards failed to enforce their claim to their IP, in fact, they gave it away in the SRD with the OGL and Re-enforced it with the lack of a System Trademark License for 5e and by just using the OGL and adding some 5e terms to the SRD. It’s arguable in court that when they released the material included in the SRD and did not identify it as IP that they allowed it into fair use as it is therein defined. Only allowing for the specific names, characters, campaign settings for example, to remain IP and the limited monsters that define D&D like Beholders and Mind Flayers also remaining in their control by virtue of not being in the SRD. Their recorded stance for 22 years has been that they couldn’t revoke the OGL and it was structured and written to be forever so that the game will always exist.
Pathfinder is an example of just this exact thing and it does not in any way violate Wizard’s IP. Castles & Crusades is another example, it can be argued that Wizards yanked their Seige engine (not OGC) for their save & proficiency system, possibly violating their IP. The list goes on and on of the OGL enabling this aspect of the stated intent by Wizards and their development team and their legal statements in that regard for 22 years.
Now they’re claiming that people are making a profit of their IP. No, no, no, no. There is no IP in the SRD or allowed in usage by OGL. If someone is making a profit of their IP through 3pp then it’s a violation of the OGL and Wizards is at fault as well because… Wizards is ignorant of their own Open license, as evidenced by the leaked 1.1.
The term OGL has been profanely used to vulgarly, and I don’t mean in the perverse or religious sense, gosh, to refer to a string of licenses that WOtC offered and long time members of these boards know what I mean. The OGL is just a one page text defining how Open Gaming under that particular license works and how to define it vs IP and publish with the license. It has come to mean 3pp for D&D during the 5e era.
Where Wizards has shot themselves on this in my opinion is that they didn’t take the care that they did with 3.x. In 3.x they had the OGL and the System Trademark License. If you wanted to publish content advertised as compatible or for use with D&D you had to use both licenses. The OGL to indicate use of the SRD and what was OGC and what was you IP in the product and the STL to indicate compatibility and use with D&D and the STL was more restrictive in its use. Closer to the 1.1 leak and it protected Wizards from liability and harm from less than reputable 3pp while not demanding royalties, registration and essentially things that harm the rest of the industry. For some reason, when returning to using the OGL for 3pp they did not create a compatibility license and logo so any Tom, Dick and Harry could create content for 5e and less knowledgeable or caring folk were definitely using Wizards IP as well since they could just pull out a Monster Manual and ASSUME it was fair game. Wizards wasn’t careful with 5e and 3pp so the last 10 years the cat has been shredding the license and it’s their own fault and their legal team hasn’t a clue what their going on about because they’ve obviously mixed all these things up and assumed OGL=D&D and not Fate, Star Wars (good luck Hasbro, you’re going to have a hard time fighting that one), Dragon Age (first game was built off KOTOR engine, OGL and SRD derived), Year Zero Engine and all the other games that have been released under the license that Wizards assured everyone for 22 years would not end and that their IP was protected. Oops.
Kleenex used to be a trademark and it no longer is because the Kleenex corporation failed to defend the trademark for so long that when another company launched calling their brand of tissue paper Kleenexes and they tried to sue the Kleenex corporation lost and could not enforce their rights to the name or use it in their logo etc.
Wizards failed to enforce their claim to their IP, in fact, they gave it away in the SRD with the OGL and Re-enforced it with the lack of a System Trademark License for 5e and by just using the OGL and adding some 5e terms to the SRD. It’s arguable in court that when they released the material included in the SRD and did not identify it as IP that they allowed it into fair use as it is therein defined. Only allowing for the specific names, characters, campaign settings for example, to remain IP and the limited monsters that define D&D like Beholders and Mind Flayers also remaining in their control by virtue of not being in the SRD. Their recorded stance for 22 years has been that they couldn’t revoke the OGL and it was structured and written to be forever so that the game will always exist.
Pathfinder is an example of just this exact thing and it does not in any way violate Wizard’s IP. Castles & Crusades is another example, it can be argued that Wizards yanked their Seige engine (not OGC) for their save & proficiency system, possibly violating their IP. The list goes on and on of the OGL enabling this aspect of the stated intent by Wizards and their development team and their legal statements in that regard for 22 years.
Now they’re claiming that people are making a profit of their IP. No, no, no, no. There is no IP in the SRD or allowed in usage by OGL. If someone is making a profit of their IP through 3pp then it’s a violation of the OGL and Wizards is at fault as well because… Wizards is ignorant of their own Open license, as evidenced by the leaked 1.1.
The term OGL has been profanely used to vulgarly, and I don’t mean in the perverse or religious sense, gosh, to refer to a string of licenses that WOtC offered and long time members of these boards know what I mean. The OGL is just a one page text defining how Open Gaming under that particular license works and how to define it vs IP and publish with the license. It has come to mean 3pp for D&D during the 5e era.
Where Wizards has shot themselves on this in my opinion is that they didn’t take the care that they did with 3.x. In 3.x they had the OGL and the System Trademark License. If you wanted to publish content advertised as compatible or for use with D&D you had to use both licenses. The OGL to indicate use of the SRD and what was OGC and what was you IP in the product and the STL to indicate compatibility and use with D&D and the STL was more restrictive in its use. Closer to the 1.1 leak and it protected Wizards from liability and harm from less than reputable 3pp while not demanding royalties, registration and essentially things that harm the rest of the industry. For some reason, when returning to using the OGL for 3pp they did not create a compatibility license and logo so any Tom, Dick and Harry could create content for 5e and less knowledgeable or caring folk were definitely using Wizards IP as well since they could just pull out a Monster Manual and ASSUME it was fair game. Wizards wasn’t careful with 5e and 3pp so the last 10 years the cat has been shredding the license and it’s their own fault and their legal team hasn’t a clue what their going on about because they’ve obviously mixed all these things up and assumed OGL=D&D and not Fate, Star Wars (good luck Hasbro, you’re going to have a hard time fighting that one), Dragon Age (first game was built off KOTOR engine, OGL and SRD derived), Year Zero Engine and all the other games that have been released under the license that Wizards assured everyone for 22 years would not end and that their IP was protected. Oops.
FrogReaver
The most respectful and polite poster ever
Yea, i do wonder whether deauthorizing the OGL (assuming it's a total deauthorization) opens up WOTC to claims of Fraud from many of those companies you mention.
This isn't arguable. WotC haven't failed to enforce their claims to their IP - they have constantly asserted it, and nearly everyone who has published a D&D-related product in the past 20 years has included a section 15 statement expressly acknowledging WotC's copyright in their SRD.
These publishers used the OGL. They expressly acknowledged WotC's IP, and were licensed by WotC to reproduce their copyrighted text.
I don't know of any evidence that WotC has failed to protect their trademarks since they revoked the D20 system licence. They are currently suing another company and associated persons in order to protect some of their trademarks.
Why would anyone sue for fraud? They want IP permissions, not damages (I assume) and the same evidence that would suggest fraud would probably establish an estoppel which would give them what they want.
FrogReaver
The most respectful and polite poster ever
That's fair, but more importantly, why didn't you answer my question?
Paul Farquhar
Legend
What I think it really means is the answer to your question is "how good is your lawyer?" I only know that because I was playing AD&D and Traveller at the time and have a fairly good memory.
You mean "whether deauthorizing the OGL (assuming it's a total deauthorization) opens up WOTC to claims of Fraud from many of those companies you mention"?
I don't know much about the tort of fraud in US jurisdictions. I also don't know what "total deauthorisation" means - if you are talking about WotC exercising a legal power that it enjoys, then that can't be fraudulent unless it raises an estoppel or similar sort of claim. This is one of the thoughts that underpinned my reply just upthread.
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