Scribe
Legend
On whose dime?
D&D General So what about the SRDs?
- Thread starter overgeeked
- Start date
On whose dime?
The Sigil
Mr. 3000 (Words per post)
I am not a lawyer. This is not legal advice. I am using US terms here as that is where I am based; other legal systems likely have analogous but not identical terms (in the UK, I believe they use the term "Fair Dealing" where the U.S. uses "Fair Use").
The issue is that while you cannot copyright mathematical functions or game mechanics, a particular expression of those things (i.e., the words used to describe them) CAN be copyrighted.
Whether or not you replicate text word for word, if you base something you are writing on someone else's particular copyrighted expression of those uncopyrightable concepts, your work may be considered a "derivative work" and thus infringing upon copyright.
I said "may be" - but the salient question you probably should be asking is "who determines if my work is a derivative work?"
The answer is: "Not you." Now, you may not think your work is derivative. But if a copyright holder disagrees, they have the power to sue you and compel you to come to court. What you think doesn't matter. What they think doesn't matter. The real answer is "courts decide if a work is derivative."
If your work is found to be derivative, the burden of proof shifts to you (or more likely, your lawyer) and you must raise a defense of why your derivative work is not infringing (if it is both derivative AND infringing, you can be held liable for monetary damages). You have to prove one of the following is true:
1. The copyright of the work of which your derivative work is derivative has expired and that work has entered the public domain (does not apply in this case as the 2024 5E rules are 90+ years away from expiry).
2. Your use of the work is covered by the doctrine of Fair Use. (This is not likely for most monster supplements for reasons I won't get into here)
3. You have explicit (written) permission from the copyright holder to create a derivative work (usually in the form of a license)
4. "Estoppel" applies - that is, you received assurances from WotC that you would not be sued for your use - they can't later come back and change their mind (this is probably the Fan Content Policy Fan Content Policy | Wizards of the Coast ) - in this case the work is still technically "infringing" but you cannot be held liable for it so I would probably lump this in with #3
To come back to your original question, "what is the between me using the 3.5 SRD under OGL, the A5E SRD under ORC, the 5.1 SRD under CC, or no SRD at all and just not replicating [any] text?" the answer is:
A. Using the 3.5 SRD under OGL, the A5E SRD under ORC, the 5.1 SRD under CC allows you to point to explicit permission (under the terms of the license) as an affirmative defense for why your derivative work is not infringing. This means you will not be in danger of being liable for paying monetary damages (and/or be subject to court-ordered sanctions).
B. [Using] no SRD at all and just not replicating [any] text does NOT allow you to point to explicit permission as an affirmative defense for why your derivative work is not infringing. In this case you must hope to rely on Fair Use doctrine or hope the copyright is expired or point to a statement that they wouldn't sue you to invoke estoppel (all very unlikely) or be liable for paying monetary damages (and/or be subject to court-ordered sanctions).
In short (maybe not so short):
Under Option A, you publish your monster sourcebook with little worry as it will be trivially easy for a lawyer to defend you if you are ever sued, and such a defense is likely to be relatively inexpensive as the outcome of the case will be obvious to a judge and you may be able to get a summary judgement. This is a very-low risk, low-liability (assuming you adhere to the license terms) exercise.
Under Option B, you publish your monster sourcebook with a huge legal cloud hanging over your head. If you are sued, you are likely to have a very large legal expense for some combination of your defense lawyer, a pre-trial settlement with your accuser, and/or liability damages after you lose the suit. This is a potentially high-risk, high-liability exercise. The amount of risk and liability you invoke in this case is based on several factors, including how successful your book is (i.e., if the copyright holder notices you) and how litigious the copyright holder might be (and not just when they discover your book, but at any later time in for the entire duration of the copyright if the copyright changes hands - including a leadership change at a corporate copyright holder). If you release your monster book in 2025, you have opened the possibility for expensive litigation through about 2120 (at least in the US, where copyright terms for a corporate entity like WotC are 95 years from publication and my MM copy says the first printing was in February 2025).
Your appetite for risk and legal trouble will likely determine whether or not you see Option B as a significant deterrent.
Given most 3rd-party publishers opt for Option A, it should be self-evident how they view the risk of Option B.
Last edited:
Alzrius
The EN World kitten
I suspect everyone would, since then the gaming community would have a much more concrete answer for a number of salient questions surrounding this topic.
But then the question becomes who would bell the cat.
I'm honestly not trying to be difficult. I am trying to understand how you can use the 5.1 SRD to produce legally protected works for other editions of D&D, and what the limits are. I get that a derivative work can re-define elements in the SRD to "revert" them to their 3.5 definition. What I am confused about is how you could add things explicitly not in the 5.1 SRD but in another edition. Can you, for example, make a 4E retroclone? If so, could you release THAT into CC?
Just look at the OSR movement for your answer. Hundreds of retroclones and spin-offs and adventures and sourcebooks for pre-3E versions of D&D. They've been doing it for years.
Alzrius
The EN World kitten
The answer is "it depends," largely on what edition you're trying to reproduce.
For instance, most pre-3E editions didn't have quite the mechanical intricacy of 3E, so it wasn't that hard for enterprising members of the OSR to go back and re-tool what was in the 3.5 SRD for various other purposes. But even then, some creative work had to be done. For instance, For Gold & Glory (an AD&D 2E retroclone) has a mechanic called THACO ("To Hit A Combat Opponent") because they can't use THAC0 ("To Hit Armor Class 0").
The problem is that the 5.1 SRD is quite a bit thinner than what's in the 3.5 SRD. You could probably still use it to reproduce something like Original (i.e. 1974) D&D just fine, and maybe even AD&D 1E, but in the latter case certain things (e.g. proficiencies, psionics, etc.) might be a bit awkward (which isn't to say they couldn't be done, but they'd probably be at least slightly different, a la the THACO/THAC0 difference given above).
4E, however, is a particularly bad example, as the game seems to have been designed in a way to frustrate being easily recreated in this manner (e.g. the use of small symbols to indicate things like monster types). Again, that doesn't mean it can't be done (just look at Orcus), but it's a lot more work to stay away from potentially actionable areas.
What exactly are people intending on making that they think their product is more likely to get them sued by WotC that none of the other thousands of products that have been released since 2000 and the initial OGL/SRD getting released? I mean heck... if WotC didn't throw up cease-and-desists against like Mutants and Masterminds or anything from Malhavoc Press (products designed and published by one of the people who actually worked on 3E in the first place)... what are any of you going to make now using terms from the 3E or 5E SRDs and the CC / OGL / ORC that is going to suddenly send their attorneys running?
As far as I can remember... there has not been a single lawsuit ever brought by WotC against any creator of paper-based product that was released under the OGL or used an SRD. Shouldn't that say something and alleviate a couple fears? And even if it doesn't... well, then just wait for the 5.2 SRD! What do any of you have written currently for the 5E24 game that you're just sitting on feeling unable to publish it because WotC hasn't released the 5.2 SRD yet? And why does waiting another month / two months / six months for WotC to get off their duff really matter then?
As far as I can remember... there has not been a single lawsuit ever brought by WotC against any creator of paper-based product that was released under the OGL or used an SRD. Shouldn't that say something and alleviate a couple fears? And even if it doesn't... well, then just wait for the 5.2 SRD! What do any of you have written currently for the 5E24 game that you're just sitting on feeling unable to publish it because WotC hasn't released the 5.2 SRD yet? And why does waiting another month / two months / six months for WotC to get off their duff really matter then?
The retroclones are largely subtractive -- that is, there is less in old editions of D&D than in 3.5, so it seems easier. The 5.1 SRD is missing a bunch of stuff from 3.5, so it seems like you would have to play silly games like using different but similar terminology (the THAC0 >> THACO example is an interesting one).
Tangentially related: has Paizo said anything about the possibility of release PF1E material into CC if WotC does end up releasing the 3.5 SRD into CC. Because that (the 3.5 SRD releasing in CC, to be clear) would be necessary, right?
Paizo is very invested in the ORC license to the best of my knowledge but I have no insight into their plans
Alzrius
The EN World kitten
That does sum it up, yes.
You're right in that Paizo would need to wait for the 3.5 SRD to be added to the Creative Commons before they could release anything for PF1 into it (with the requisite disclaimer that "anything" refers to the game mechanics; I suppose they could release only flavor text for things like Golarion into the CC if they wanted to). But the funny thing is, the 3.5 SRD alone wouldn't be enough. Look at what's in the Section 15 for the Pathfinder Core Rulebook:
Notice those last two entries, which say that the PF1 rules rely not just on the SRD, but also on The Book of Experimental Might and the Tome of Horrors, meaning that those would also have to be released under the Creative Commons license also (once the 3E SRD is) since Pathfinder uses material from them. And that strikes me as not being very likely.
Similar Threads
