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Frylock's Gaming & Geekery Challenges WotC's Copyright Claims

Morrus

Well, that was fun
Staff member
Frylock, of Frylock's Gaming & Geekery, is a lawyer. He recently received an email from WotC requesting that he take down his one-stop stat blocks, a request with which he has chosen not to comply. He has put together the first of three blog posts outlining the legal situation.

at-oreillys.jpg

In the first, he outlines some basic copyright law concepts. His next one will look at spell descriptions, and the third one will "expose the true nature of the Open Gaming License".

The email from WotC seems fairly benign (they’ve sent me much sterner emails in the past!) It’s fairly friendly, and framed as a request. I don’t know what the tone of his response to them was like.

He opens with the statement that "WotC has a history of taking advantage of gamers’ ignorance of contract and intellectual property law and lack of wealth when making similar demands, thus harming the gaming community and industry, so it’s time those issues are addressed."

His essay goes into some depth, and is an interesting read. But here's his conclusion: "If stat blocks don’t go beyond the traditional description of the traits of a mythological creature, or how those traits are expressed properly within the context of 5th edition mechanics, then the game designers have no right, nor should they, to forbid them from being republished by a third party. Drawing that line can be difficult, but even if there’s an arbitrary choice being made in a stat block, it still may be safe to republish, as that choice must represent a modicum of creativity to warrant protection. A stick figure is creative in nature and thus copyrightable subject matter, but most of them aren’t creative enough in practice to warrant a copyright. Some are. For the vast majority of stat blocks, the analysis is easy, and you should be able to republish them. Just keep in mind that large companies are better able to finance a lawsuit than you are."

It's not legal advice, and I'm not enough of an expert to evaluate it in any way, but it's certainly interesting.
 
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Nagol

Unimportant
From some of the public after-action reports over the decades, it wasn't so much taking advantage of others' ignorance as being ignorant themselves.
Lack of wealth though; that is a thing. Litigation is expensive and stressful.
 

Paul Farquhar

Explorer
If stat blocks don’t go beyond the traditional description of the traits of a mythological creature, or how those traits are expressed properly within the context of 5th edition mechanics
This is going to get ripped to shreds. There is no "proper" way to express the traits of a mythological creature. Last time I read the Odyssey it made no mention of Polyphemus' AC.
 

EthanSental

Explorer
Maybe the first thing he should have done is have an example of each, his one shot stat block and WoTC. Never heard of the guy, bought anything but in this day and social media age, the I’ve got 1326 followers on Instagram so my opinion of myself might be inflated on my impact to something....like his statement WoTC owes a lot of their sales to my involvement in the community and his Con back in 2011/2012. You lost me there...your involvement at the end of a dying edition probably meant 21 PHB sales if that so stop implying your a force inside the gaming community. Yeah I probably should get a cup of coffee when I wake up so I don’t fire off the cuff in the morning :)

In the end, do I care. Not really as I don’t try and sale stuff like this, just and Dm and player for 32 years....but this isn’t a David vs Goliath situation so if WoTC ban roll lawyer team stretches this out and small time lawyer guy can’t stand the expense and he caves...I’m not surprised.
 

Rhianni32

Explorer
I'm not fully convinced he is is in the right.
He makes the case of stat blocks and mythical creatures. He uses the cyclops from public domain as an example. And of using logic about the strengths and weaknesses of a cyclops for his selection of abilities in his stat block. Great and I agree. WOTC probably agrees because how many homebrews are out there on reddit, homebrewery, for free on drivethrurpg and DMsGuild that aren't getting take down notices?
Yeah the stat block itself isn't the problem.

In another of his posts, WOTC gives details.
"It looks like you’ve basically copied the text from our books, added check boxes and spell descriptions, and then placed your own copyright notice on the bottom. "

Additionally, hismonsters are not limited to the open content but specific printed books like Volos and Tales of the Yawning Portal.
I cannot find any of those to download. Probably were removed while this is being sorted out. However.... if he is in the right as he is saying why take them down? If I missed them somewhere someone point out where to grab these copies I'm curious to what extent they were copied or rephrased.

If he is copying word for word out of the PHB on specific spells like Otto or Mordenkainen that are IP specific and taking monster stats from copyrighted books, then placing his copyright on the work.... yeah they have a legitimate beef with him. And his copyright is what is confusing. He goes to great length that this can't be copyrighted.... but why did he do it then? Again I cannot find them anymore and did not see the actual copyright of his. Just going off WOTC comment above so I could be wrong here.

I'm by no means a lawyer and it looks like he has other lawyers reading and reviewing his material. Its certainly an interesting topic and I'm looking forward to his 2 other articles.
 
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Matrix Sorcica

Explorer
I fear this will end in WotC shutting down homebrew on reddit and multiple other sites, no matter who's in the right. Corporate logic.
So I hope this Frylock character packs his stuff before upper level WotC/Hasbro takes serious notice.
 

Dausuul

Legend
Based on my limited understanding of copyright law, he's correct in his claims, but he's also walking a very fine line in an area without a lot of legal precedent. The point of the OGL was to give us non-lawyers a way to create D&D-compatible material without having to navigate the legal hazards in taking Frylock's approach. We accept the restrictions in the OGL, and in exchange we are allowed to use WotC's rules text as-is, without having to worry about whether a given block of text is sufficiently "creative" that we must rewrite it before we can use it.

He may well succeed in his legal fight, but most of us are not equipped to do what he's doing.
 

Charlaquin

Goblin Queen
Based on my limited understanding of copyright law, he's correct in his claims, but he's also walking a very fine line in an area without a lot of legal precedent.
It seems like that’s kind of the point. Based on his opening statement about WotC “taking advantage of gamers’ (...) lack of wealth,” it seems like part of his aim is to get some precedent set.
 

Parmandur

Adventurer
His essay goes into some depth, and is worth the read. But here's his conclusion: "If stat blocks don’t go beyond the traditional description of the traits of a mythological creature, or how those traits are expressed properly within the context of 5th edition mechanics, then the game designers have no right, nor should they, to forbid them from being republished by a third party. Drawing that line can be difficult, but even if there’s an arbitrary choice being made in a stat block, it still may be safe to republish, as that choice must represent a modicum of creativity to warrant protection. A stick figure is creative in nature and thus copyrightable subject matter, but most of them aren’t creative enough in practice to warrant a copyright. Some are. For the vast majority of stat blocks, the analysis is easy, and you should be able to republish them. Just keep in mind that large companies are better able to finance a lawsuit than you are."
I've watched Mike Mearls create monster stat blocks: arbitrary decisions abound. This will not hold up in court.
 

lowkey13

Exterminate all rational thought
Based on my limited understanding of copyright law, he's correct in his claims, but he's also walking a very fine line in an area without a lot of legal precedent.
Eh. Look, here's the slight leap he takes that I don't know that I agree with.

It's a truism that you can't copyright something with no creativity. Say, a phone number. And a collection of things you cannot copyright cannot be copyrighted. So, a database of phone numbers (for example) cannot be copyrighted.

Here's where he loses me. He then makes the leap to saying that monster stat blocks cannot be copyrighted because they are obvious expressions of what the monster "is", you know, like you can't copyright the distance to Jupiter. ....but ..... that's not true. He uses the example of the Cyclops, as if it is obvious that the Cyclops would have particular stats and attacks and so on.

There is creativity in converting monsters into 5e. And giving them stats. Otherwise, there would be some platonic ideal stat block that could be understood independently and without creativity; put another way, he is copying WoTC shamelessly because he HAS TO, and because there is creativity in those stat blocks.

Who knows? Maybe he'll set a new precedent, but I don't think his logic is either airtight or particularly sound.
 
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lowkey13

Exterminate all rational thought
Oh. So I found this earlier post by him-


Ouch. A lawyer who represents himself has a fool for a client.

If this is how he reacts to a relatively benign email (this is about the most pleasant copyright demand letter I have seen in a long time) by promising to expose WotC's conduct over the past "10-15 years," I'd hate to see what happens when there is real adversity.


EDIT- I should add that while I am sympathetic to anyone dealing with a large company, sometimes you don't need to take it to 11.
 
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Parmandur

Adventurer
Oh. So I found this earlier post by him-


Ouch. A lawyer who represents himself has a fool for a client.

If this is how he reacts to a relatively benign email (this is about the most pleasant copyright demand letter I have seen in a long time) by promising to expose WotC's conduct over the past "10-15 years," I'd hate to see what happens when there is real adversity.


EDIT- I should add that while I am sympathetic to anyone dealing with a large company, sometimes you don't need to take it to 11.
WotC is actually supremely gentle about fair use, given their rights under the law. This is way out of proportion.
 

neobolts

Explorer
The idea that stat blocks for established creatures are self-evident doesn't hold up. If I gave Frylock and a WotC staffer identical narrative information on a previously un-stated creature in the public domain, they would not generate 100% identical stat blocks. There would be real notable variance.

Side note, is it odd that lawyer is blogging details and legal strategy for a case where he is the defendant? I would think staying silent and saving it for court would be a better choice.
 

Morrus

Well, that was fun
Staff member
The idea that stat blocks for established creatures are self-evident doesn't hold up. If I gave Frylock and a WotC staffer identical narrative information on a previously un-stated creature in the public domain, they would not generate 100% identical stat blocks. There would be real notable variance.

Side note, is it odd that lawyer is blogging details and legal strategy for a case where he is the defendant? I would think staying silent and saving it for court would be a better choice.
It’s not a case, and he’s not a defendant. It’s just a (fairly polite) email from WotC at this point.
 

AriochQ

Explorer
It's a truism that you can't copyright something with no creativity. Say, a phone number. And a collection of things you cannot copyright cannot be copyrighted. So, a database of phone numbers (for example) cannot be copyrighted.

Here's where he loses me. He then makes the leap to saying that monster stat blocks cannot be copyrighted because they are obvious expressions of what the monster "is", you know, like you can't copyright the distance to Jupiter. ....but ..... that's not true. He uses the example of the Cyclops, as if it is obvious that the Cyclops would have particular stats and attacks and so on.

There is creativity in converting monsters into 5e. And giving them stats. Otherwise, there would be some platonic ideal stat block that could be understood independently and without creativity; put another way, he is copying WoTC shamelessly because he HAS TO, and because there is creativity in those stat blocks.
I believe his argument is that since concepts like "Hit Points" and "Rock" can't be copyrighted, the underlying values need to have a sufficient amount of "creativity". Simply assigning a value to "hit points" is not creative enough. Hence, it is not copyrightable, and he can just duplicate it. The same would hold true for the rest of the stat block. The information is either not copyrightable or is insufficiently creative.
 
Never heard of this guy before, but in my experience there’s a massive difference in lawyers. Not sure what kind Frylock is, but I can pretty much guarantee some small-potatoes lawyer (I suspect any lawyer part of a larger firm would avoid this sort of legally-inadvisable showboating and hyperbole) isn’t going to be successful in taking on a major corporation's legal team.
 

lowkey13

Exterminate all rational thought
I believe his argument is that since concepts like "Hit Points" and "Rock" can't be copyrighted, the underlying values need to have a sufficient amount of "creativity". Simply assigning a value to "hit points" is not creative enough. Hence, it is not copyrightable, and he can just duplicate it. The same would hold true for the rest of the stat block. The information is either not copyrightable or is insufficiently creative.
I grok the argument. I just think that it is, at best, a serious stretch, and at worst, completely wrong.

But hey- he's an attorney, so he knows that if it's a registered copyright, there are statutory damages and prevailing party attorney's fees. I'm sure he'll have fun with it if he wants to take it that far.
 

Parmandur

Adventurer
I believe his argument is that since concepts like "Hit Points" and "Rock" can't be copyrighted, the underlying values need to have a sufficient amount of "creativity". Simply assigning a value to "hit points" is not creative enough. Hence, it is not copyrightable, and he can just duplicate it. The same would hold true for the rest of the stat block. The information is either not copyrightable or is insufficiently creative.
his argument won't hold up in court, full stop. It's a bad argument.
 

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