Are fan-created works bound by the OGL now?

[Hardhead]

This was first brought up in the (now locked) PCGen thread on the publishers' board, and though I'm not trying to revive it here somthing was mentioned there that got me interested.

Many publishers there were insisting that PCGen *should* run under the OGL (as it soon will do). But my question is: is fan-created material bound by the OGL? Should it be? If I decide to post some of my characters online, and they have feats from T&B, am I violating copyright? In the past, Wizards has allowed fans to do whatever they want as long as they don't use WotC logos or characters, or try to make money off of it.

PCGen, though, was doing none of those things, and WotC requested that they remove all non-SRD material, even dice rolling. Is this a harbinger of a change in Wizard's relation to it's fans? Are they becoming more like TSR in their draconian practicies of not letting fans use thier products for fun (and NOT profit)?

And even if Wizards is changing the rule so that it's just programs that have to follow the OGL, then why are programs like Jame's Buick's and many others not being hobbled by WotC has they are doing to PCGen?

Personally, I thought WotC was doing a lot better than TSR by allowing fans to use WotC work that wasn't SRD, but that seems to be changing.

 

[jmucchiello]

Many publishers there were insisting that PCGen *should* run under the OGL (as it soon will do). But my question is: is fan-created material bound by the OGL? Should it be? If I decide to post some of my characters online, and they have feats from T&B, am I violating copyright? In the past, Wizards has allowed fans to do whatever they want as long as they don't use WotC logos or characters, or try to make money off of it.

The short answer is Yes, you are violating copyright. (See disclamer below)

The long answer sparks endless debate. For the most part, a fansite with just some characters on it probably falls under fair use rights. Fair use is not a right to infringe, it is a defense against infringement. What does that mean? It means that you are still violating the copyright but that if WotC bothered to take you to court, the court should rule in your favor because of the fair use defense. This assumes WotC doesn't crush you in lawyer's fees of course.

PCGEN is a different kettle of fish. The makers of PCGEN distribute it. And while it is not done for profit, it is still considered commerce. As a commercial interest, they have a harder time using fair use as a defense. So, in order to get around the copyright violations, they were advised to become OGL compliant.

I'm not going to explain the OGL.

Disclaimer: I'm also not a lawyer. This is not legal advice. If you need legal advice contact a lawyer in your jurisdiction who is familiar with Intellectual Property law and Contract law.

Joe Mucchiello
Throwing Dice Games
http://www.throwingdice.com

 

[Lela]

I think they are really attacking computer base programs because they want to sell e-Tools. If they were to start attacking fan sites, Enworld would be first on their list and anger and outrage would spred rapidly across the gaming community as groups with only one player here go and tell their groups who go and tell their friends who all rant and rave.

Besides the fan stuff going around the internet is actually making people want to buy some of the suppliments. Free advertising.

Morrus gives huge amounts of advertising to WotC everyday at no cost. WotC must love him and wouldn't risk attacking him or the boards.

 

[Hardhead]

I think they are really attacking computer base programs because they want to sell e-Tools.

I think you're right, but they're only attacking PCGen, because PCGen is the best character generator program out there (including e-Tools). But IMO, if they're going to start attacking fan-made programs, then they should do it to them all. And they shouldn't wait until they have their own competing program out before they shut it down.

WotC was fine with PCGen when E-Tools wasn't out. And even though I didn't do any programing for PCGen, a lot of fans put tons of their free time into it, only to have WotC hobble it when E-Tools was released. If they have a problem with fan-created stuff, then they should say so BEFORE said fan-created stuff has been out there for TWO YEARS instead of waiting to attack it when they had a competing project.

In short, the way I see it WotC let PCGen exist when it suited their purposes and a good character generator was needed. Now, after fans have spent years polishing it up, they're smacking it down because they have a program of their own out now. And maybe they're legally in their right to do so - they probably are, I don't know - but it sure does suck, and it's a mean thing to do.

 

[jmucchiello]

In short, the way I see it WotC let PCGen exist when it suited their purposes and a good character generator was needed. Now, after fans have spent years polishing it up, they're smacking it down because they have a program of their own out now. And maybe they're legally in their right to do so - they probably are, I don't know - but it sure does suck, and it's a mean thing to do.

They are completely within their rights. The PCGEN team was told to get compliant by many of the d20 publishers. It's not like this comes from out of the blue.

Mean thing to do? Businesses always act in their own self-interest. It may not be nice or fair but it is how the world is. Remember, Wizards could demand that PCGEN stop shipping entirely. Or they could sue the programmers. That would put PCGEN completely out of existence.

Disclaimer: I'm still not a lawyer. Yada yada.

Joe Mucchiello
Throwing Dice Games
http://www.throwingdice.com

 

[Hardhead]

They are completely within their rights. The PCGEN team was told to get compliant by many of the d20 publishers. It's not like this comes from out of the blue.

They were never told this by WotC until GenCON, and though many third party publishers felt they should be OGL-compliant, I'm not really sure what that has to do with the relationship between WotC and it's fans. PCGen is not a comercial product, it has never claimed (to my knowledge - again, I don't work on PCGen) to be anything but a work by fan programers for the rest of us fans. Indeed, the way I understand it, Ryan Dancy (when he was with WotC) told them that they were OK for precisely this reason.

The semi-official compact between WotC and it's fans has always been that as long as we stay within the bounds I mentioned in a previous post (which PCGen did and is still doing), we don't have to be OGL complaint. PCGen does it. James Buick does it. I'd wager that almost everyone here has violated WotC copyright at some point, because we're not doing it for profit. Why should PCGen be OGL compliant when no other fan-created works have to be?

I think it's underhanded to let us (as in "us the fans," like I said, I don't work on PCGen - I'm not a programer) put our time into our fan-created work, get the OK from WotC, and then at some later point get told to stop and that we weren't allowed to distribute our work (for free) anymore because it violates copyright. AFTER we've worked on it for YEARS.

Now, is it legal for them to do so? Yes, it probably is from what I can tell (I'm not a copyright lawyer either!), but is it also an underhanded thing to do? Yes, at least in my opinion.

Anyway, I didn't mean for this thread to focus on PCGen so much, as the other thread did. I think the basic problem is that WotC doesn't have clear guidelines for what we, as fans, are allowed to do. They've laid down informal guidelines before, but they've come down on PCGen despite the fact that PCGen did not break said guidelines. As a fan (and a frequent user of fan-created stuff, including PCGen), that upsets me. WotC needs to lay down, in writing, what we fans can do without attracting legal-team ire. They've always said before that as long as we kept clear of WotC trademarks, characters, and didn't make any money, we were in the clear. But apparently, that's not the case anymore. So what *is* OK?

 

[Tiefling]

This was first brought up in the (now locked) PCGen thread on the publishers' board, and though I'm not trying to revive it here...

Heh heh heh heh hoo hoo A HA HA HA HA HAAAA!!! Foolish mortal! You are too late!

 

[jmucchiello]

Anyway, I didn't mean for this thread to focus on PCGen so much, as the other thread did.

Well, in that case there is little to discuss.

• Fan based creations are violations of copyright law. There is no doubt about that.
• Fair use can be used as a defense in a lawsuit claiming copyright violation, provided you have enough money to get to a courtroom before you are lawyer feed to death
• If you put a d20 logo on your website you better be OGL compliant.
• Under no circumstances can you use WotC non-OGC sourced material with the OGL. If you have a character on a website with a Tome&Blood feat don't put a d20 logo on the site.

Is there really any confusion on any of these points?

Disclaimer: IANAL. TINLA.

Joe Mucchiello
Throwing Dice Games
http://www.throwingdice.com

 

[Fast Learner]

• Fan based creations are violations of copyright law. There is no doubt about that.

<SNIP>
Is there really any confusion on any of these points?

Yes, there is. To clarify, no, fan based creations are not violations of copyright law. Not in the least.

Distributing fan based creations might be a violation of copyright law if the contents aren't (a) OGL-compliant and released under the OGL, (b) don't fall within WotC's fan site license, and (c) aren't within the realm of fair use.

The first is fairly easy to figure out, since if the creation doesn't say that it's released that way, doesn't include the license, and doesn't comply with the license, it's not released under the license.

The second would be fairly easy to figure out if I could remember where that information could be found. It was pretty broad, IIRC, but it absolutely absolves fans of copyright violations in specific areas.

The third is quite complex, but a lot of material released would, in fact, fall under fair use. Unfortunately whether or not something actually does fall under fair use has to be decided by a court, so it's always hard to tell. There's no question that some fans have pushed fair use far beyond what it allows, but that doesn't mean fair use doesn't cover some of the material.

 

[myrdden]

Is there an official document outlining WotC policy on fan-sites and work?

Myrdden