D&D General What Actually Is Copyright Protected In The SRD?

[clearstream]

I concur with your learned opinion, m'lud.

WoTC might someday claim that Umber Hulk is an unregistered trade mark, but it's never been used as a badge of origin by them so I think such a claim would be very weak.

It's quite possible that the Umber Hulk as a detailed concept (not the bare phrase) has copyright protection under US law. Certainly Umber Hulk artistic depiction will. But the idea of "a giant tunnelling insect-headed monster with hypnotic eyes" is not itself copyright protectable IMO.

(For anyone new: I teach IP law and contract in England)

If @teitan's point is that - restating slightly - copyright doesn't protect mechanics: then that is correct. On the other hand, copyrights are very much an example of IP. The exact wording of rules can be IP. The working of rules may - but is unlikely to be - a protected IP.

"Umber Hulk", I don't really know about. They don't need to have registered it to be able to claim a trademark (although in some territories they would need to have claimed it as a trademark.)

 

[clearstream]

@doctorbadwolf

This court case seems relevant to your question: DaVinci Editrice S.R.L. v. ZiKo Games, LLC

What I find bemusing about that case is this...

The summary judgement:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

The court's reasoning:

The court points out that “Unlike a book or movie plot, the rules and procedures, including the winning conditions, that make up a card-game system of play do not themselves produce the artistic or literary content that is the hallmark of protectable expression.”

Yes, quite right. There's no artistry to crafting game mechanics. It is an aesthetically dead act. Nothing of the designer - certainly nothing artistic - is therein expressed.

 

[Burt Baccara]

D&D 1974

Basically if it's in an edition of D&D it might not be safe at least in expression.

The 6 ability bscores might be safe but +1 at 12/13, +2 at 14/15 etc might not be.

If the IGL goes away if it's in an edition of D&D it might bit be safe beyond basic names. Copying any specific mechanic or expression of it could be messy.

Playing it safe I wouldn't make it class based.

Based on the above, using the OGL for the 3.x SDR never actually not allowed cloning of earlier content.

The theory of clone designers (if I understand correctly), is that the OGL for the 3.x SDR gave access to certain phrasings that remained from the earlier editions to 3.x, and the mechanics like "+1 at 12/13, +2 at 14/15" were fair game as they are game mechanics and part of the game system, both of which are not protected.

 

[Zardnaar]

Based on the above, using the OGL for the 3.x SDR never actually not allowed cloning of earlier content.

The theory of clone designers (if I understand correctly), is that the OGL for the 3.x SDR gave access to certain phrasings that remained from the earlier editions to 3.x, and the mechanics like "+1 at 12/13, +2 at 14/15" were fair game as they are game mechanics and part of the game system, both of which are not protected.

And if the OGL goes away they may not be able to do that or fight a cease and desist in court.

Can't copyright mechanics isn't as absolute as people here think apparently.

And since things like Pathfinder have copied concepts from 3.0 wholesale they could conceivably be nuked.

OSR has also lifted things while from older editions. OGL goes away......

 

[Burt Baccara]

Can't copyright mechanics isn't as absolute as people here think apparently.

Based on what? Is there a specific U.S. game copyright case?

 

[Zardnaar]

Based on what? Is there a specific U.S. game copyright case?

No it's never been tested beyond basic level stuff. You can't copyright basic mechanics eg rolling dice, shuffling cards.

Eg I can make a tcg tomorrow but I can't clone MtG.

You can copyright expressions of mechanics but there's no legal definition of that.

Pathfinder 2 for example still uses microfeats and the 3.0 ability score system. OGL goes away well WotC decides to claim that's their IP. There's no OGL it's right there in the 3.0 phb they invented that expression of mechanics.

Who's to say they can't make that stick? And even if you're right can you afford to prove it?

That's the threat/danger.

So it of these ideas to make a new cline might not realize anything from 3.0 and 5E might be off the table.

Pathfinder didn't have to worry about that in 2009.

 

[pemerton]

Based on what? Is there a specific U.S. game copyright case?

No it's never been tested beyond basic level stuff. You can't copyright basic mechanics eg rolling dice, shuffling cards.

This is not really accurate:

@doctorbadwolf

This court case seems relevant to your question: DaVinci Editrice S.R.L. v. ZiKo Games, LLC

 

[Zardnaar]

This is not really accurate:

I'm not saying they can't win but it's not absolute. WotC can theoretically win a case. So can you.

Even if they don't how many can afford to fight it out in court.

Even if you win and can afford it they can also lock you out of their VTT and 6E.

 

[teitan]

If @teitan's point is that - restating slightly - copyright doesn't protect mechanics: then that is correct. On the other hand, copyrights are very much an example of IP. The exact wording of rules can be IP. The working of rules may - but is unlikely to be - a protected IP.

"Umber Hulk", I don't really know about. They don't need to have registered it to be able to claim a trademark (although in some territories they would need to have claimed it as a trademark.)

Yes that is my point.

 

[Burt Baccara]

The catching point seems to be not only the line between “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied” and "expression," but also "product identy."

The U.S. Copyright Office's circular 33, "Works Not Protected by Copyright" is fairly clear (or perhaps deceptively seem to be, like a mimic waiting to spring on a non-lawyer or a lawyer who fails their check) on what is not covered by copyright and points to patents and trademarks where needed. Though, the to this layperson, the concept of "product identiy" is perhaps the most confusing.

It seem, again from this layperson's understanding so far which is likely not correct, that "product identity"seems like a grey area between copyright and trademark. Copyright protection today is automatic, yet copyright does not cover "
Names, Titles, Short Phrases" including "The name of a character." And trademarks have an application process that included showing current use or intent to use, and a view process. Yet it seems a company can simply say, "oh that? that is totally product identity, and it is because...er...because it is." Doing a quick TESS search for US Trademarks shows, "Mind Flayer," "Displacer Beast," even Mordenkainen, look to have never been registred. And yet, all thress are claimed as "product identity."

Is "product identity" part of copyright or trademark law? How does one create "product identity?" Is this really meant to cover creaters and character names?