3rd Party Support: Is an OGL even necessary?

[Reynard]

I got wondering: when 5E/D&Dnext comes out, is it necessary, from a legal standpoint, for there to be an OGL type license for 3rd parties to produce adventures, settings and the like?

On one hand, if the nomenclature and core systems resemble d20 and older editions, or even OGL newer games, couldn't one simply use the OGL? And on the other hand, even if things are significantly different, aren't game mechanics essentially "open" anyway? As I understand it, they can't be copyrighted, but can they be trademarked?

I believe law and precedent says you can't put "Compatible With D&D" on the cover, but what about, "For Use With The Next Iteration of the World's Greatest FRPG"?

As an aside, isn't this true of any RPG? Assuming one stayed away from trademarks, couldn't you publish adventures or sketchbooks compatible with World of Darkness or Hackmaster Basic or HERO?

 

[Umbran]

I got wondering: when 5E/D&Dnext comes out, is it necessary, from a legal standpoint, for there to be an OGL type license for 3rd parties to produce adventures, settings and the like?

Technically, one cannot copyright mechanics. So, no, you don't *need* the thing to be under the OGL. However, producing a clone without using any of the original's intellectual property isn't easy. The logic of the rules aren't covered by copyright, but the specific expression of them is, so extracting the logic without using any of the stuff that's covered by copyright is difficult. It's a risk. And, given that failing to do so properly can result in your entire product going down the hole, likely with damages piled on top...

I would not expect any 3rd part publisher to try it for a currently active product. Cloning 1e, which WotC isn't actively selling, is one thing. Cloning their flagship RPG product is another altogether.

On one hand, if the nomenclature and core systems resemble d20 and older editions, or even OGL newer games, couldn't one simply use the OGL?

Nope. WotC actively released 3e under the OGL. If they don't actively release 5e under the OGL, then the OGL does not apply. You, using their content, don't get to choose which license is applied. They, who own the content, do.

As I understand it, they can't be copyrighted, but can they be trademarked?

I believe sets of rules and processes can be patented, though I know of no RPG company that's tried that.

As an aside, isn't this true of any RPG? Assuming one stayed away from trademarks, couldn't you publish adventures or sketchbooks compatible with World of Darkness or Hackmaster Basic or HERO?

Well, given that Hackmaster uses the fact that you don't need the thing to be released under the OGL, yes. But see the note above on how it isn't easy to do.

 

[Cadfan]

NOT LEGAL ADVICE JUST A DISCUSSION OF CONCEPTS YOU COULD LEARN ABOUT ON WIKIPEDIA

Games are protected by copyright, trademark, or by patent. No one ever buys patents. Trademark only applies to things that designate the origin of a good, which means that as long as you avoid key words and images, and use appropriate disclaimers, you're probably ok. So that leaves copyright. You can copy the content of something that's been copyrighted as long as you put it into your own words, because copyright protects expressions of ideas, not the idea itself.

Its a dangerous practice though, because you might screw up. Its surprisingly easy to err, or for someone to find a way to credibly argue that you erred, if they're willing to pay someone to over your work with a fine toothed comb.

 

[trancejeremy]

You could, Mayfair did exactly that with AD&D in the 80s. IIRC though, they had a bit of a legal tussle and so changed some of the terminology and such - the names and stats, like using "Hits to Kill" instead of hit points.

OTOH, they also put "Presented for the use with Advanced Dungeons & Dragons" on the cover, much the same way generic medicine says "Compare to Tylenol" and such.

OTOH, Palladium Games sued WOTC over their Primal Order supplement, simply because it had info for using the supplement with their games. And let's not forget how TSR harassed EGG over his Mythus game, even though it really didn't bear any similarity to D&D...

So really, the question is, are you willing to go to court over it? And can you afford it? Because while the cases might not win, they could be filed, at least.

 

[Number48]

This is a good point. Can you afford to be even right, legally, if legally contested? Just because you did nothing wrong doesn't mean it won't bankrupt you. You'd be surprised what could be argued as copywritten, plus that fact that you don't actually need to apply for copyrights. If you produce it, it is copywritten as a fact. That means if you say something kinda too similar to any wording in any product they produced, you could be up for it.

Note, however, that just because there's no OGL doesn't mean there can't be run-of-the-mill licensing. There's no reason for WotC not to license other companies to produce accepted categories of material as long as the licensing fee is right.

 

[Blacky the Blackball]

Personally, I'm hoping that even if there's no OGL for third party companies to use, there will be some kind of license so that people like me who want to produce amateur stuff for free and stick it up on the web can do so, even if there are "non-commercial" clauses built in.

Having said that, there would need to be clarity about now "non-commercial" intersects with POD. If I produce something for free, but upload it so that you pay a POD company to print a copy, would that be considered commercial or not?

 

[delericho]

Legally, WotC are under no obligation to provide an OGL (of course). As a practical matter, I'm reasonably sure they will need one in order to have any chance to "reunite the fanbase".

Depending on the specific mechanics, it may or may not be possible to support 5e using the OGL. It was possible to support 4e that way, but required some workarounds that tended to be a bit clunky. 5e will probably (but not certainly) be the same.

Ideally, I would like to see 5e be covered by the existing OGL. I can think of few better ways for WotC to signal that they want to work with the community, rather than retreating to their ivory tower. But I'm not going to hold my breath.

 

[Jan van Leyden]

And let's not forget how TSR harassed EGG over his Mythus game, even though it really didn't bear any similarity to D&D...

Not quite right, IIRC. Didn't TSR claim that EGG worked on Dangerous Journeys while he was a TSR employee? His contract would give the copyright of his work as employee to the employer. So TSR could claim that the rights belonged to them.

 

[Yora]

The thing is that on one side is the huge economic behemoth Hasbro, and on the other side is me, a single struggling student who is writing some stuff in his free time and putting it online.
Even if I am 95% sure I am allowed to do that, just the chance that there could be a legal battle is enough to scare me off and not touch anything. I don't have a legal expert who can assure me at 100% that when I get sued, I will walk away richer than before. And what if the judge is an idiot who doesn't understand the issue, and sentences me to pay thousands of dolars damage even though I have the law on my side? I got something better to do than spending years in legal and financial limbo. And I think for many small companies, it's much the same.

With an OGL in place, I know I am allowed to do, and what I am not allowed to do, and that WotC is fine with it and won't bother me if I follow the rules.
No risk for me, so publish your heart out.

Having said that, there would need to be clarity about now "non-commercial" intersects with POD. If I produce something for free, but upload it so that you pay a POD company to print a copy, would that be considered commercial or not?

There have been claimed that having adds on your page makes the page commercial, since you make a tiny bit of monney when you attrackt people to visit the page. Not sure if this would hold in court, but when you get three lawyers with baseball bats at your door who say "Pay 500€ for legal bills our client had to pay to get us come here and tell you to stop, or we sue your ass to hell and back.", then you really don't want to find out what the court would be saying.

 

[IronWolf]

In my opinion they need something to let the small publisher or amateur easily release supplements (adventures, new spells, feats, etc) to the web or via PDF. They need to be able to do this without worry of take down notices and such and also without worry that when D&D 6e comes along that the rules can change and all the D&D Next stuff can be revoked.

This does not necessarily need to be the OGL, but it needs to be a license open enough to allow the community to thrive.

*Note: I understand they are under no obligation to release under a license like that, this is just what I would like to see them do.