Fair Use of Treasure Generation Tables

[Mooninaut]

I just wrote a treasure generator in Javascript using the treasure tables out of the 3.5E Magic Item Compendium. I'm wondering if it's OK to post a link to it on the forums here, since the MIC tables are not part of the SRD.

The output of the generator consists of a simple table of item names, gold values and page reference numbers. I'm unsure as to whether this qualifies as fair use or not. I think it does, but I'd appreciate any helpful comments.

Fair use arguments:
Factor 1, Purpose and Character: Noncommercial use.
Factor 3, Substantiality: Only the names and gold values of the items are used.
Factor 4, Market Effect: The generator is fairly useless without the books in question, so should not harm their commercial value. In fact, it may enhance their value by making them more useful to the consumer. I am aware of no official WOTC treasure generator program that this would compete with.

 

[phloog]

Not sure if (as a non-lawyer) my comments will be that helpful, but:

I think that 'Substantiality' might be viewable as not simply volume of text, but nature ...call it 'weight' of the text used - meaning, are the few words you use from the book very important words, like names of characters?

Not familiar with the MIC (then why am I replying again?!?), but are there item names which contain IP that WOTC might wish/need to protect...is it Armlet of Wonder, or Grugg's Armlet of Wunders?

Aside from that it would SEEM (again IANAL) that a Fair Use argument could be made.

 

[tomBitonti]

It's probably better to consider whether WotC could make a product using the same information. Would your program detract from the market for the WotC product? Or, from the goodwill that WotC would engender from releasing their own (free) product that does the same? Would the program detract from the value of embedding the same function into the online content?

 

[Mooninaut]

WotC could make a similar product, but I doubt they would considering that I'm using 3.5 data.

 

[pawsplay]

It's almost definitely not fair use, as you are not simply referencing the table but using it. The question is whether the table itself is copyrightable or if only a particular presentation is. you are probably within your rights, IMO, but WotC might find it prudent to take legal action against you because it's not a very clear thing.

 

[starwed]

It's almost definitely not fair use, as you are not simply referencing the table but using it.

If he were only referencing it, he wouldn't need to worry about fair use... I'm pretty sure the legal concept of fair use only has relevance in cases where you would otherwise be infringing upon copyright.

Here's an analysis of fair use tests for non-lawyers. From what I can tell, none of the factors seem to weigh at all against you.

Obviously we're not lawyers here, but there just doesn't seem to be any reason at all for WotC to sue you in the first place. Even in the dark TSR days they'd request fan made material to be removed before resorting to lawsuits.

 

[tomBitonti]

Here's an analysis of fair use tests for non-lawyers. From what I can tell, none of the factors seem to weigh at all against you.

I'll have to disagree. (But, there may be specific issues because the information is presented in tables.)

Factor 1: Character of work: Non-commercial, but non-personal.

The work seems to be non-commercial, but also non-personal (if made available across the web). None of the extra factors (e.g., parody) are present to tilt the usage in favor of fair use. This seems to be a substitutive work, rather than a transformative one.

Factor 2: Nature of work: Creative

The elements of the table are imaginative items. The table itself, I don't know. The arrangement of items in tables seems to be a creative act (in opposition to an alphabetical listing). However, questions about tabular data may have specific precedents that would provide exact answers, at least as far as fair use of tables.

Factor 3: How much of the work will be used: More than a small amount.

Here I'd have to say "more than a small amount", especially if the program provides the entirety of the treasure tables as published.

Factor 4: Effect of widespread use: Competing

In this case, I would have to put the answer as "Competes with (takes away sales from) the original". I look to the character generator as an example, and can imagine a similar treasure generator being added to the online content.

 

[pawsplay]

If he were only referencing it, he wouldn't need to worry about fair use... I'm pretty sure the legal concept of fair use only has relevance in cases where you would otherwise be infringing upon copyright.

Here's an analysis of fair use tests for non-lawyers. From what I can tell, none of the factors seem to weigh at all against you.

Obviously we're not lawyers here, but there just doesn't seem to be any reason at all for WotC to sue you in the first place. Even in the dark TSR days they'd request fan made material to be removed before resorting to lawsuits.

"What is the character of the use?"

Useful reference works are generally protected; however, the Potter-verse unofficial encyclopedia ran afoul for basically, (in the eyes of the judge), reproducing Rowling's creative work.

Creating your own treasure table, even with the same treasure names? I'd say that's probably safe. Reproducing an existing table, even in a somewhat transformed form? Probably legal, but I would not risk it.

 

[starwed]

I feel like people are using the wrong calculus here.

If you put up a hobby product that was clearly fair use, and WotC asked you to take it down or they'd sue, would you really press the issue in court?

Ultimately the issue, as a hobbyist, isn't whether it's fair use or not, but whether WotC would simply sue you without first asking you to remove it. Does anyone know of a single case where that's happened?

 

[Mooninaut]

As to whether the tables themselves are a significant portion of the value of the Magic Item Compendium as a whole, the fact that Wizards published some of the tables on their own website for free seems to weigh against that.

I think that the descriptions of the items make up the bulk of both the commercial value and creative value of the book, not the random tables. Indeed, I created the generator to be used with the book, not to replace it. If I had wanted to replace the book, I would have included the full description of each item.

Thanks for all the feedback! Given everything I've read, the existence of another treasure generator that I just found, and the fact that sites like Crystal Keep remain online, I'm going to post the link to my generator.