D&D General Frylock on the ‘Ineffectual OGL’

[S'mon]

Contracts are bargaining- offer and acceptance.

Hey, I thought we weren't supposed to discuss offer & acceptance?!

 

[S'mon]

And now I wonder, if Fyrlock published one of his stat blocks for such IP considered monsters as the Githyanki, Mind Flayer, etc. The only question is, and perhaps that is what he is counting on in case the affair goes to court, if those IP "protected" monsters are really covered by some copyright or IP laws and are really the IP of WotC (thanks S´mon for the remark about that).

To be clear, WoTC certainly owns a copyright in pages 158-161 of the Monster Manual, and adaptations/derivative works thereof. They may not own copyright in the original White Dwarf text (& picture) describing the Githyanki, this will depend on the contracts between Charles Stross (UK), Games Workshop (UK), and TSR or TSR UK. Copyrights are not free standing concepts like patents or Trademarks, certainly not in English Law, and in the circumstances effecting a successful transfer of (c) in the original published work from Stross to TSR under the pre-1988 Copyright law would have been very tricky. Especially as Stross still held full copyright at time of publication (GW only received a licence to print and reprint once, under their own standard form contract of the era, which I saw when I submitted something to them). And I suspect that TSR was less than fully aware of the intricacies of UK copyright law.

So I suspect it is likely that one could create work derived from the original appearance of the Githyanki and that this would only risk infringing Stross' copyright as author. But this depends on the contracts. NB however if you use the OGL then you cannot do this because Githyanki are 'PI', and the OGL contract says you agree not to use WoTC-designated PI.

 

[Dausuul]

My basic stance is that, in terms of the intent of copyright law, it seems pretty clear that a module that uses the D&D terminology to refer to the D&D rules, but does not reproduce those rules, and does not use the Named Characters And Settings, is not actually infringing on anything, and is only "derivative" of the stuff that is absolutely not protected -- the rules-as-abstraction, not the text of the rules. And thus, there's no need for anyone to make a special agreement that "entitles" them to make such a thing, and the agreement exists only to fast-talk people into agreeing to arbitrary restrictions, some of which would not apply otherwise, some of which probably would.

People can and do publish D&D sourcebooks without using the OGL. Kingdoms of Kalamar, by KenzerCo, is probably the most well-known example. But, not coincidentally, David Kenzer is an expert in copyright law. That's the problem: If you're going to go the "fair use" route, you are walking a minefield and you need an expert to steer you along the safe path. Most designers lack that expertise and can't afford to pay for it.

The OGL provides a map. It marks off certain areas (which could in theory be navigated) and says "Look, just don't go here." It charts a path through other areas and says "The mines in these areas are deactivated"--even if you walk right over one, it won't go off. If you don't need the map, don't use it, but lots of folks benefit tremendously from that clarity. And it does give you rights you would not otherwise possess, like the right to copy-paste big sections of the SRD.

Obviously Dancey was going way over the line claiming that Wizards held a copyright on the word "strength," but that doesn't mean the OGL itself is a con.

 

[darjr]

Wait, could he ruin the OGL?! I think I’m going to kinda dislike him for that.

 

[Morrus]

Wait, could he ruin the OGL?! I think I’m going to kinda dislike him for that.

No. He’s not using the OGL. The OGL discussion is a sideshow to his actual situation.

 

[Flexor the Mighty!]

Ok, so gimme a summary. If he is right what is the outcome?

 

[Deleted member 7015506]

@S'mon
I agree fully with you, that there are certain copyrights regarding the background/history of the Gith race that belong to TSR/WotC. No doubt about that, since their history changed/evolved a lot from those humble beginnings. But let's assume, that there is a) either a contract between GW and TSR (UK) from that time defining the transfer/licensing of copyrights regarding AD&D material in that case or b) there was no formal contract for this case (very unlikely I would assume).
So in case a) with the contract, GW would automatically concede any copyright for such material to TSR once published (if it would comply with the contract between the original author (Stross) and GW!). I am sure you have better insight into that, and the publication of mentioned material would transfer the copyrights to TSR (no matter if UK or US since I would assume both are basically the same company for this purpose). Therefore the copyright for the Gith race for example is with TSR = WotC nowadays (WotC is the legal successor to TSR AFAIK = buying all rights and obligations). So no valid point for any kind of copyright infringement as Fyrlock mentioned in this case.
But in case b) if GW didn´t gain the copyright for an entry beyond the case you mentioned (as I read it one time licensing/publishing), the copyright (to certain points taking newer court cases into account) remains with the designer/author.
And since I remember that Fyrlock mentioned in one of his posts that at least in two cases WotC infringed/misused copyright, I think he is building his case on the GW/TSR (UK) subject you mentioned. Now if he takes that as an example for TSR/WotC misuse of copyright in the past, he can perhaps claim, that this misuse is a kind of "marketing" strategy from TSR/WotC, that goes on for a prolonged time = try to convince, that the claimed copyright/IP/PI by WotC is not valid and therefore justify his own claim of copyright.
I know that this idea is pretty wild, but perhaps a US lawyer on here can shed some light on such a probable case.

 

[S'mon]

Therefore the copyright for the Gith race for example is with TSR = WotC

The problem here is that in UK law there is no "copyright in the Gith race", there can only be copyright in literary musical artistic & dramatic works. There is a copyright in the words Stross wrote (literary work) that were published under licence in White Dwarf. TSR think they 'acquired the rights' to Githyanki and the other Fiend Factory creatures, and the authors (Stross included) presumably signed off on something - the question is what that something said, and what its legal effect would be under the governing law, presumably English law. It is pretty hard to transfer copyright in an already published work under US law and my feeling is it is/was a good deal harder under UK law. And I have interacted enough with TSR lawyers to know they would not have had the competency to do this. But it's conceivable GW or TSR UK might have hired specialists in London with the ability to actually do this. I kinda doubt it though. Copyright was a really minor field ca 1980, GW was a small company, TSR was a mid sized US company not a a major media conglomerate. Even judges of the time deciding IP cases tended not to know IP law. Very few lawyers would have.

 

[teounagodem]

The really important thing is our money will be for the original creators and not for pirates. We aren't not only players, but also collectors. We will buy books because later these will become our threasure.

 

[S'mon]

I'm not familiar with the concept of "copyright misuse", I don't think it exists in UK law, so not going to comment on that.

 

[Deleted member 7015506]

@S'mon
thanks for replying my post. Deeply appreciated
I think (and totally subjective here), that back in those days (and yes, I got my first copies of The White Dwarf and Dragon magazine around those times arrived for an outraging prize (not mentioning GW minis, rule books and modules in general, etc,)) people thought of copyright was different than it actually was (no internet folks!). So publishing anything based on something a company "invented" and published was certainly off limits (at least we thought back then and were perhaps right).
But let´s spin my thought further: If Stross didn´t sign anything that states, that his copyright passed to GW at this time and GW assumed! that any work on AD&D would be ultimately be the copyright of TSR back then, then wouldn´t it be a point/base for making a case I mentioned regarding laws/jurisdiction in the US (again US lawyers question here).
My whole point at this time is, that Frylock is making up something (hopefully backed by some of my assumptions/understandings by reading his posts), that perhaps TSR/WotC was infringig copyright laws from a very early start and continues this mode of operation by issuing their OGL/SRD ergo misusing copyright laws = winning the case.
My whole concern is, since I am writing for the last 2 years on a OSR clone, that the OGL might be rewoked in a way or the other based on such imbecile (excuse the term here please) attempts to fight a war, that is (IMHO) unlikely base of being won (for whatever reason Frylock may have, and may it only be on the base of free speech).
but one thing you mentioned: dramatic work. RPG say something about role playing. Can* taht be considered dramatic work equalling acting?

 

[S'mon]

but one thing you mentioned: dramatic work. RPG say something about role playing. Can* taht be considered dramatic work equalling acting?

UK law (the 1988 Copyright Designs & Patents Act) doesn't really define 'dramatic work' other than that it includes works of dance or mime, and works capable of being performed before a live audience. If it were true that Critical Role were a 'fake', a (semi) scripted performance, then it could be a Dramatic Work under UK law. But a sports match is not a copyright work under UK law and I don't think a (real) RPG session would be considered one, either.

(But this is actually a really complicated issue; in the Norowzian v Arks case the court held that a film was a dramatic work even though films are a separate category under the CDPA, because they wanted to give films the full protection due to 'Primary' works. This could well apply to RPG Podcasts too, I suspect. Without that they only get the much more limited Broadcast Right.)

 

[Deleted member 7015506]

Thanks for replying again S'mon. I know that EU/UK laws are a lot different than US, and its interpretation (no idea if this is the correct term) is also very different (especially, when you take your knowledge/understanding from public media like I do). Like I stated my basic concern already, I have a funny feeling, that this thing is bigger than it implies at first look. I hope it just doesn´t kill the OSR movement (and yes even that term can be contested nowadays with that oh-so great split everybody talks about nowadays).
I only hope that WotC is keeping up their good-faith towards those small companies that publish OSR style material and tht not one of those Hasbro guys take the whole thing as an excuse to fhigt the OGL (to say) and try to revoke it for the idea of loosing a couple of bucks due to Joe Averages publishing splendid material based on D&D.

 

[Twiggly the Gnome]

UK law (the 1988 Copyright Designs & Patents Act) doesn't really define 'dramatic work' other than that it includes works of dance or mime, and works capable of being performed before a live audience. If it were true that Critical Role were a 'fake', a (semi) scripted performance, then it could be a Dramatic Work under UK law. But a sports match is not a copyright work under UK law and I don't think a (real) RPG session would be considered one, either.

(But this is actually a really complicated issue; in the Norowzian v Arks case the court held that a film was a dramatic work even though films are a separate category under the CDPA, because they wanted to give films the full protection due to 'Primary' works. This could well apply to RPG Podcasts too, I suspect. Without that they only get the much more limited Broadcast Right.)

Is there any laws regarding improvisational comedy? That seems the most directly analogous example, at least more so than sport.

 

[Dausuul]

Thanks for replying again S'mon. I know that EU/UK laws are a lot different than US, and its interpretation (no idea if this is the correct term) is also very different (especially, when you take your knowledge/understanding from public media like I do). Like I stated my basic concern already, I have a funny feeling, that this thing is bigger than it implies at first look. I hope it just doesn´t kill the OSR movement (and yes even that term can be contested nowadays with that oh-so great split everybody talks about nowadays).
I only hope that WotC is keeping up their good-faith towards those small companies that publish OSR style material and tht not one of those Hasbro guys take the whole thing as an excuse to fhigt the OGL (to say) and try to revoke it for the idea of loosing a couple of bucks due to Joe Averages publishing splendid material based on D&D.

This whole thing seems to me like one guy who got a bug up his butt and has just enough knowledge of copyright law to get himself into trouble. I'll be surprised if this ever sees the inside of a courtroom.

As for Hasbro, we all like to dump on big corporations, but they've seemed generally willing to let WotC run their own show as long as the money keeps coming in, which it is. The most they've interfered was when they told Wizards in the run-up to 4E that the D&D division needed to show more of a profit--and given the size of their staff back then, Hasbro had a point. Even then, they didn't tell WotC how to go about juicing profits, just told them it needed to happen. And since 5E came out, they surely have nothing to complain of in that regard.

If they didn't go after Paizo over Pathfinder--which looked like a real threat to D&D for a while there--I don't see them changing their approach over one rather mundane case of copyright infringement. The lawyers can handle it.

 

[LordEntrails]

Ok, so gimme a summary. If he is right what is the outcome?

Ha! Depends who you ask.

Frylock is saying that if he is right then just about every creature, ability, feature, class, race and it's defining characteristics are public domain or at least not copyrightable. Meaning anyone could re-publish just about everything from the PHB and MM (and much of the other D&D products) except artwork.

Other more conservative (?) folks simple thinks if Frylock is right then the OGL would be null and useless and every D&D supplement would be on its own navigating IP law.

About all that can be definitely stated is that if Frylock is right lots of things might change. Or they might not.

 

[Beleriphon]

bout all that can be definitely stated is that if Frylock is right lots of things might change. Or they might not.

The other thing, assuming this particular claim is correct, is that WotC has engaged in Copyright Misuses by claiming copyright they don't have and stopping people from exercising their legal rights. Which means for the length of time they have been doing so they cannot get damages for copyright infringement even if there was actual copyright infringement going on. Not that it matters at whole lot, since the only thing that WotC can copyright is effectively artwork.

I can't comment on that much more than what I just posted, because 1) not a lawyer and 2) not American.

 

[Ovinomancer]

The other thing, assuming this particular claim is correct, is that WotC has engaged in Copyright Misuses by claiming copyright they don't have and stopping people from exercising their legal rights. Which means for the length of time they have been doing so they cannot get damages for copyright infringement even if there was actual copyright infringement going on. Not that it matters at whole lot, since the only thing that WotC can copyright is effectively artwork.

I can't comment on that much more than what I just posted, because 1) not a lawyer and 2) not American.

This is almost entirely incorrect. I say almost because I'm willing to concede the last sentence.

 

[Beleriphon]

This is almost entirely incorrect. I say almost because I'm willing to concede the last sentence.

Oh, I tend to agree since even my rather cursory understanding of American copyright law suggests Frylock has composed most of his argument from BS and Horse Hockey.

 

[Deleted member 7015506]

@Dausuul
There is certainly a point in your reply, but one point to consider is, that perhaps in the past PF was already scanned/investigated by Hasbro's/WotC lawyers and perhaps they decided/concluded, that PF was playing all along the lines of the OGL/SRD = no infringement of copyright or enough possibilities to make a good base for a court case in their view back then. Just an assumption by me, but who knows?
But perhaps this time they decided otherwise and sent Frylock that initial e-mail. And I don´t think they just send it and then do nothing else and let the whole affair remain unsettled. IMHO this would be an unwise decision, since it would state to the public, that their will to enforce their copyrights is more than lax. Certainly not an approach that any serious company would like to give.
And coming back to PF: They certainly realized, that PF is a strong competitor to D&D. Therefore if they were not able to stop competition by (more or less) a product based on their own back then, then there might be a chance for another competitor arising. Alas this time they will do something, especially when the reaction by Frylock is so harsh and to a certain point aggressive.
I am sure, that this affair will see a courtroom to be settled. And if not, which is also a possibility, since Hasbro might say, that the costs are too high for the possible gain, well then I am eager to hear their reactions, since the djinni is already out of the bottle. One point to let it remain unsettled might be a fear of damaging their changed positive approach/reputation towards their fan base in comparison to TSR and not changing back into a bad big company that some might see in them (or other large corporations for that matter). Bad reputation also damages sales as we all know. But like said I think the affair is too widely known already to just put a blanket of silence over it. And the reaction will take some time, since I think if Hasbro/WotC is going to court over this, then they will certainly gather the best resources you can expect.
Just assumptions by me I know, but the future will tell what happens.