free 4E?

[FormerlyDickensC]

I'm beating a dead horse here and reiterating stuff that probably doesn't need to be, but......

I think there might be some over thinking of the issue going on.

Licenses really play no role in creating an OGL 4E surrogate. The only issue is what text WotC can claim as copyrighted, b/c it is only text and nothing but text that WOTC can claim as property....and any surrogate simply cannot use the same or similar (that is anything arguably derivative) text used by WOTC. No other issue matters.

Just don't copy copyrighted text! The problem then becomes determining what text WOTC can claim as owned and what cannot be claimed as being owned. So all previous OGL content is obviously fair game. And it would be prudent to use a non-derived surrogate term anywhere there is a question of ownership.

Just rewrite the 4E books in non-derivative language using the same ideas. Make the language as concise and specific as possible (noting conciseness and specificity are normally mutually exclusive). Avoid any extra non-absolutely-necessary-language.

WOTC doesn't own the mechanics, they only own the words. And the GSL determines how a third party can use those owned-words in their own product. But a surrogate system is NOT using those words, and the GSL plays no role.

Okay, I'm leaving the room....

 

[pbrink]

... It's bad enough that you could not use the block format used by WotC (that is certainly trade dress they would defend). But once you start modifying or substituting terms, you have problems.

Why do you belive that a stat block format could be locked up using the trade dress rules?

In Wal-Mart v. Samara the U.S. Supreme Court held that:

Design, like color, is not inherently distinctive. The attribution of inherent distinctiveness to certain categories of word marks and product packaging derives from the fact that the very purpose of attaching a particular word to a product, or encasing it in a distinctive package, is most often to identify the product’s source. Where it is not reasonable to assume consumer predisposition to take an affixed word or packaging as indication of source, inherent distinctiveness will not be found. With product design, as with color, consumers are aware of the reality that, almost invariably, that feature is intended not to identify the source, but to render the product itself more useful or more appealing.

I would say that no formating in a RPG would be able to qualify for trademark protection as trade dress.

 

[Ruis]

This is really good info to know. While I could still take more console on the issue, this post helps.

 

[pemerton]

I would say that no formating in a RPG would be able to qualify for trademark protection as trade dress.

Just out of curiosity - is that a professional opinion?

 

[jmucchiello]

Why do you belive that a stat block format could be locked up using the trade dress rules?

No, I see it as potential evidence that your work is a derivative work.

 

[Brown Jenkin]

No, I see it as potential evidence that your work is a derivative work.

I see it as being imitative and not derivative. For the same reason I see imitation food/products at the grocery store that package themselves in very similar ways. Making something similar to an established product and then marketing it in a similar fashion has a long tradition of being legal.

 

[pbrink]

I would say that no formatting in a RPG would be able to qualify for trademark protection as trade dress.

Just out of curiosity - is that a professional opinion?

Yes.

 

[FormerlyDickensC]

Yes.

Mr. Brink, I posted this in the other thread and am re-posting it here. I would like to ask you your opinion of this blurb from the US Copyright Office:

The idea for a game is not protected by copyright. The same is true of the name or title given to the game and of the method or methods for playing it.

Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form. Copyright protection does not extend to any idea, system, method, device, or trademark material involved in the development, merchandising, or playing of a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles.

Some material prepared in connection with a game may be subject to copyright if it contains a sufficient amount of literary or pictorial expression. For example, the text matter describing the rules of the game, or the pictorial matter appearing on the gameboard or container, may be registrable.

http://www.copyright.gov/fls/fl108.html

[D]hr[/D] Secondly, I would like to also advocate for the use of BOXM and BOXMII in finding usable OGL material for this surrogate system. Both books contain many ideas used in 4E and, as a bonus, were published before the 4E books. Monte Cook is the author of these books (pdfs) and was consulted during the development and play-test of 4E. Many of the inherent ideas found their way into these two OGL source books. Monte Cook may have unintentionaly saved the OGL and killed the GSL in one fell swoop.

http://www.montecook.com/cgi-bin/page.cgi?mpress_BOXM

http://www.montecook.com/cgi-bin/page.cgi?mpress_BOXM2

 

[Angellis_ater]

Unfortunately, many of the GOOD ideas in BoXM 1+2 (such as fighting domains and the breather and grace concepts) were left outside the OGC.

 

[Angellis_ater]

Alternatively, we can claim fair use from EarthDawn for some ideas, for example.