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

BookBarbarian

Expert Long Rester
I just Googled and found this document which presumably is the one that all the fuss is about.

The copyright claim appears in a footer, together with a "last modified" time stamp. I assume the copyright claim is being made in respect of the copyrightable portions of the work as a whole rather than the stat blocks. For instance, it contains the following non-stat block text (which somewhat ironically I reproduce here for the purposes of review/commentary):

I made changes to several stat blocks in order to reconcile them with the table on page 274 of the Dungeon Master’s Guide, Monster Statistics by Challenge Rating. In short, monsters over CR 5 are typically underpowered with respect to how much damage their Actions do. I suspect that the reason for this is related to the fact that the Monster Manual and Dungeon Master’s Guide were released separately. While that time difference is relatively short, I suspect the two were written independently and thus aren’t in sync. I also made a few changes because I found the monsters boring.​
In case you want to revert these stat blocks to their original numbers and powers, here are the original stats as they appeared in the Monster Manual. Follow these instructions, and everything will be the same.​

He also has spell descriptions which clearly are different from the WotC ones - that's what makes his stat blocks "one-stop". I haven't read his blog about spell blocks yet (is it up?) and so don't know whether or not he believes that he can enjoy copyright in respect of those, or at least thinks there is a chance that he may do so.
It's been years since I've seen that. I forgot how much I liked those spell descriptions right there in the statblock.
 

S'mon

Legend
Of the lawyers who post on this thread the one with whom I've had the most profitable discussions about IP is @S'mon. If he has the time and inclination, I'd be curious to learn what he thinks about this.
I believe a complete stat block would be held to be copyright protected, but the information held in the stat block, divorced from its formatting, might not be held protectable. But that may well vary by jurisdiction. I think the information alone might not be regarded as a 'literary work' under UK law (Copyrights Designs & Patents Act 1988). But the formatted stat block would be, and would meet both the UK 'skill labour and effort' standard and CJEU 'author's own intellectual creation' standard. It should also meet the US Supreme Court creativity standard from Feist.

I think it's very likely that something like "Orc: AC 13 hp 15 ATT +5/d12+3 STR +3 IN -1 CO +3 DE +1"would not be held to infringe any WoTC copyright; and that is how I would present monsters in a non-OGL D&D-compatible product.

Edit: Looking at Frylock's stat block, it looks highly derivative of the WoTC 5e stat block. While I can see arguments either way, I would tend to think this is quite likely to be found to be infringing by a moderately WoTC-friendly US court. I've seen much more egregious findings, eg in GW vs Chapterhouse a judge ruled that GW owned a copyright in large shoulder pads - an artistic element they had obviously taken from 2000AD comic strips. At the very least Frylock needs a good lawyer if he's not going to use the OGL.
 
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S'mon

Legend
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.
I don't think this makes much sense legally. Assigning stat values to an existing mythical creature meets creativity standards under US Feist standard (or the EU Own Intellectual Creation standard) IMO - and if it does not, then assigning stat values to a made-up creature doesn't either, afaics.

There is a reasonable argument that the stat information alone - sans formatting - is not something in the nature of a copyright work, but he doesn't appear to be making that argument.
 

AriochQ

Explorer
Not a lawyer, but even just reviewing the Wikipedia entry on Feist, it seems that stat blocks demonstrate a level of creativity that meets the very low standard set by that case. If it was readily apparent to everyone that a cyclops had 22 hit points, then there is no creativity. But, assigning a specific hit point value to a cyclops, along with attacks, special abilities, etc. seems to involve a lot of creativity. Therefore, it should be copyrightable.

Additionally, the formatting and presentation is very similar. The decisions relating to formatting are clearly creative in nature.
 

pemerton

Legend
I don't think this makes much sense legally. Assigning stat values to an existing mythical creature meets creativity standards under US Feist standard (or the EU Own Intellectual Creation standard) IMO - and if it does not, then assigning stat values to a made-up creature doesn't either, afaics.

There is a reasonable argument that the stat information alone - sans formatting - is not something in the nature of a copyright work, but he doesn't appear to be making that argument.
I took his argument to be something like this: there's no creativity in coming up with the idea of a tough cyclops; and assigning a hp number that reflects the toughness of a cyclops is just game rules - which (he says) are not copyrightable - used to express that idea.

So he seemed to be trying to connect the no copyright in rules idea to an argument that there is no original creatitivy because the fiction is, or is derivative of, public domain fiction.

Is there any sense in that argument?
 

Scrivener of Doom

Adventurer
I'm furious about this. It's not just that the argument is quite weak but it's the risk it poses to normal fans who like to post things online and take advantage of WotC's rather generous fan site policy.

Now he's drawn a line in the sand, WotC is going to have to respond. And they're not known for using smart lawyers - remember the clowns who pulled the PDFs years ago because they claimed it fuelled piracy? Hopefully the success of 5E means they have smarter lawyers now.
 

S'mon

Legend
I took his argument to be something like this: there's no creativity in coming up with the idea of a tough cyclops; and assigning a hp number that reflects the toughness of a cyclops is just game rules - which (he says) are not copyrightable - used to express that idea.

So he seemed to be trying to connect the no copyright in rules idea to an argument that there is no original creatitivy because the fiction is, or is derivative of, public domain fiction.

Is there any sense in that argument?
I don't think so, no. In Feist a Yellow Pages directory met the creativity standard through the selection and arrangement of the factual information, though a white pages alphabetical telephone listing did not.

Anyway the formatted stat block is clearly a copyright work and his version looks like a near copy of it.

If I am a WotC lawyer all I have to do is say he took our work and made a near identical copy - a derivative work. I don't need to risk an argument over whether information is copyrightable sans formatting. That looks like an easy win to me.

The idea of a tough cyclops is not a copyright work, but any particular expression of that idea can be.
 
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GreyLord

Adventurer
Interesting reply of his.

Numbers themselves probably wouldn't be copyright protected, but when put in specific orders and in specific patterns, they become something that need to be defended typically, especially if someone else is slapping their own copyright notices on the owned material...IMO of course.

His response seems sort of an overboard response in relation to the notice he was given. Not sure aggravating the sleeping dragon is the wisest of moves.

I think if Hasbro wants to pursue it (and no definitive idea if they are even interested in doing so, much less would do so), from what I have seen in this thread thus far on his postings...it is not going to go the way he thinks it will.

Just remember, Katy Perry just lost a court case based on a LOT LESS of similarity than his stat blocks...which, though different mediums may not seem to pertain to this, probably have a lot more in relation than at first glance.

The worst case scenario (and hopefully not even on the horizon of thinking yet) is that due to someone acting like this, WotC acts aggressively to end a LOT of the freedom they have allowed in respect and regards to the OGL and SRD.
 

S'mon

Legend
BTW in EU law I think the information in the stat block would likely not be copyright protected, but could fall under the database Unauthorised Extraction right if you took a lot of it (not just one monster for a game) - there is not much that does fall under the Database Right since the CJEU pretty well excluded factual information. So as an academic lawyer quite exciting to see something that might fall into the narrow gap of not copyright but database protected!
 

Prakriti

Hi, I'm a Mindflayer, but don't let that worry you
If there's no creativity in monster stat blocks, then why does the stat block for, say, a Unicorn differ between game systems and even between D&D editions? Wouldn't a Unicorn in 1E, 2E, 3E, 4E, 5E, 13th Age, and Pathfinder 1E and 2E essentially be the same in terms of power level, attacks, and special abilities?
 

pemerton

Legend
The worst case scenario (and hopefully not even on the horizon of thinking yet) is that due to someone acting like this, WotC acts aggressively to end a LOT of the freedom they have allowed in respect and regards to the OGL and SRD.
I'm furious about this. It's not just that the argument is quite weak but it's the risk it poses to normal fans who like to post things online and take advantage of WotC's rather generous fan site policy.

Now he's drawn a line in the sand, WotC is going to have to respond. And they're not known for using smart lawyers - remember the clowns who pulled the PDFs years ago because they claimed it fuelled piracy? Hopefully the success of 5E means they have smarter lawyers now.
I think these concerns are misplaced.

The OGL is a license that is premised on a certain view about WotC's IP rights. The fact that someone disagrees with that view and might litigate over it doesn't give any reason for WotC to change its strategy if it wins (whether through litigation or pre-litigation tactics).

And if Frylock turns out to be right (unlilkely, given what @S'mon has posted upthread) then you don't need a licence from WotC!

Likewise for fan sites. I can't see that this gives any reason to WotC to change its approach.
 

pemerton

Legend
If there's no creativity in monster stat blocks, then why does the stat block for, say, a Unicorn differ between game systems and even between D&D editions? Wouldn't a Unicorn in 1E, 2E, 3E, 4E, 5E, 13th Age, and Pathfinder 1E and 2E essentially be the same in terms of power level, attacks, and special abilities?
Well, according to the no copyright in rules idea, I could invent a chess variant in which a bishop has a different "stat block" - that is, a different set of game rules - from conventional chess. But I wouldn't enjoy copyright in my new bishop stat block qua rules.

As I understand what @S'mon has posted, part of his point is that the formatted stat block - ie the visual/aesthetic design, not the rules per se - is clearly a copyrighted work. So in the case of my chess variant it would be my rulebook - including its visual and typographical design - that would be the copyrighted work.
 

Parmandur

Legend
Well, according to the no copyright in rules idea, I could invent a chess variant in which a bishop has a different "stat block" - that is, a different set of game rules - from conventional chess. But I wouldn't enjoy copyright in my new bishop stat block qua rules.

As I understand what @S'mon has posted, part of his point is that the formatted stat block - ie the visual/aesthetic design, not the rules per se - is clearly a copyrighted work. So in the case of my chess variant it would be my rulebook - including its visual and typographical design - that would be the copyrighted work.
Also the extended fluff descriptions of actions that would not pass muster with plagiarism detecting software: that's pretty clearly creative work that he has copied rather blatantly.
 

GreyLord

Adventurer
I think these concerns are misplaced.

The OGL is a license that is premised on a certain view about WotC's IP rights. The fact that someone disagrees with that view and might litigate over it doesn't give any reason for WotC to change its strategy if it wins (whether through litigation or pre-litigation tactics).

And if Frylock turns out to be right (unlilkely, given what @S'mon has posted upthread) then you don't need a licence from WotC!

Likewise for fan sites. I can't see that this gives any reason to WotC to change its approach.
The difference between rules and what Frylock did is pretty clear. In my understanding of US law (vs Euro law).

For example, if I wanted to say you roll a D20 and if it is over a specific defensive number, you score a hit on something...that's a rule.

Or, if I say that a 25/5 +5 = 10, that's math and not under plagiarism.

HOWEVER...

If I say...

The name is Greylord.

Greylord has an Armor class of 15

Greylord has a bonus to hit of 12

Greylord has 17 Health

And list an abbreviation of Greylord - Armor: 15 - Bonus to Hit: 12 - Health - 17

That's a specific pattern. It's not math, it's specifically stated in a specific way. If someone then copies it exactly or very nearly like this so they say...

Greylord has an Armor class of 15

Greylord has a bonus to hit of 12

Greylord has 17 Health

Greylord - Armor: 15 - Bonus to Hit: 12 - Health - 17
That text that they quoted, starts getting very close to what could be plagiarism. It would be debatable.. The math and rules may not be, but once you start copying the words and numbers in the exact format or pattern they are in, that starts down the path of plagiarism

Now if the above is under the OGL specifically, then no problem as long as the OGL is included in the text somewhere.

IF IT IS SPECIFICALLY EXCLUDED...OR...if the formatting specifically includes the specific pattern found in the BOOKS but excluded from the OGL and does not use an original format or that of the OGL and spefically uses a formatting from WOTC...

It still may be foggy if it's just that short...but once he slapped his OWN copyright on it...that starts to be pretty clear cut. He would have had to delineate between what is HIS and what is NOT...but if he included the WotC formats and patterns in his own work and simply said it's copyright to him...well....not a GOOD thing from my viewpoint/opinion.

what is plagiarism

Unfortunately, this question, while understandable, isn’t very helpful when trying to understand plagiarism. Plagiarism is about citation, not duplication, and it’s possible to use passages of text verbatim without plagiarism as long as it is quoted and cited correctly.
As found at

How similar is too similar? - Plagiarism.org

One of the big problems I'm seeing here is the double slap where he did not cite the reference directly AND he then put a copyright which made it appear that he copyrighted WotC's ideas and materials as his own.
 
This is a very interesting topic. But since I am no native english speaker, several questions turned up for me while reading this whole affair (and please forgive any spelling/grammar mistakes). Hopefully I state my opinions in a way, so no misunderstandings arise.

1) As I understood, the whole argument revolves around the question if the stat blocks presented by Fyrlock are an infringement of copyright due to the fact, that

a) they were not published under the OGL (or proper 5E license), which would perhaps make
the whole affair obsolete, if the published stat blocks would not violate terms stated by said
licence(s)

b) Fyrlock did put a own copyright sign/tag for his stat blocks on the published stat blocks, which
implies in my personal view, that he made them up from scratch (at least, that is how I
understand copyright) and thereby infringing/violating copyright laws, since the original stat
blocks were the basis for his own and not his own generic work


2) If I got things right, then game mechanics and rules in general cannot be copyrighted in any way, no matter what they are, except for content that is considered Product Identity. So integrating monsters like the Mind Flayer, Beholder, Slaad and Kuo-Toa for example is an infringement of copyright, since they are Product Identity of the publishing company (in this case WotC). So my questions are:

a) Why can something be considered/treated as PI, which falls under the copyright rules and
underlying mechanics on the other side can not be copyrighted. As I personally see it, both are
creative (= unique?) works, that are not less subject for copyright protection than a fiction novel
for example.

b) Wouldn´t the original ruleset already be considered unique (= creative), since perhaps not
their different parts but the whole set/combination of them make for a unique product falling
under the copyright law? Personally spoken, if somebody talks about AC, HD and Saving
Throws, I immediately think of D&D. Therefore that is a kind of PI (at least in my opinion).

3) Is the visual presentation of game mechanics/content copyrightable or not? If the answer is yes (which I think is here the case, since the creativity behind this presentation process is unique), then a similar (albeit modified version) presentation might lead to confusion about the origin of the product in question. And this might lead unwary people to the assumption, that the product in question published by Frylock is 100% genuine and not the work of WotC in any way. In how far those modifications to the original stat block is sufficient to make it unique (= no infringement of copyright laws) would be interesting to see.

4) What is the difference between copyright and product identity? The mentioned monsters are “considered” (quote from the wikipedia entry of the Mind Flayer) PI by WotC. So as I understand it, PI is what makes a product unique/recognizable on the market. On the other hand PI can´t be copyrighted? And how do you legitimate PI (by a kind of patent act/bureaucracy, official procedure etc.). Very confusing for me (Let me make that clear at this point: No I don´t have any intention on going to war with WotC over that or question the validity of this aspect/statement or whatever you want to call it). Could the official stat block be considered PI and therefore a violation of PI be assumed? And as a side note: Game mechanics and rules can´t be copyrighted, but is a stat block a mechanic/rule or something different? Isn´t it rather a collection of creative imaginary values that may be interpreted individually (= house rules) and therefore are unique via the compilation of several more or less independent aspects into a single block?

5) If a license is published/made public it can be revoked, right? Why is the OGL considered unrevokable? As I understand it, the OGL is only viable in connection with the SRD, which results in the OSR/retro clone products being possible to be published (as long as you don´t violate mentioned PI). So if somebody violates a license in such an open and (IMHO) aggressive way (as is perhaps this case here), couldn´t that lead to the mentioned revoking of the OGL as mentioned by others, since WotC might see a possible threat to their products as a whole? Or is this unrevokable aspect based within the text of the OGL itself by not stating a kind of expiration date or procedure for revoking it in case the license publisher wishes to do so?

BTW for me the statement, that the OGL is nonsense/non-valid (no quotation here), is a very drastic statement.

6) If Frylock wouldn´t have placed his own copyright tag under the product in question and added an approbate license (OGL or 5E, whatever would be approbate here), then as I understand it, the whole affair would not have happened. So my stupid question is here: Why pose something as your own and make a big wind about it when notified about it, when there are possibilities to avoid that and still publish your work? To prove that everything in the gaming industry can be copied for free except for graphics and exact wording perhaps?

If I misinterpreted or misunderstood anything, please correct me.
 
Oh and before I forget: I consider my nickname here to be protected by TM, copyright, Product Identity and any imaginable/applicable law and regulation that is out there ;)
 

Morrus

Well, that was fun
Staff member
This is a very interesting topic. But since I am no native english speaker, several questions turned up for me while reading this whole affair (and please forgive any spelling/grammar mistakes). Hopefully I state my opinions in a way, so no misunderstandings arise.

1) As I understood, the whole argument revolves around the question if the stat blocks presented by Fyrlock are an infringement of copyright due to the fact, that

a) they were not published under the OGL (or proper 5E license), which would perhaps make
the whole affair obsolete, if the published stat blocks would not violate terms stated by said
licence(s)

b) Fyrlock did put a own copyright sign/tag for his stat blocks on the published stat blocks, which
implies in my personal view, that he made them up from scratch (at least, that is how I
understand copyright) and thereby infringing/violating copyright laws, since the original stat
blocks were the basis for his own and not his own generic work


2) If I got things right, then game mechanics and rules in general cannot be copyrighted in any way, no matter what they are, except for content that is considered Product Identity. So integrating monsters like the Mind Flayer, Beholder, Slaad and Kuo-Toa for example is an infringement of copyright, since they are Product Identity of the publishing company (in this case WotC). So my questions are:

a) Why can something be considered/treated as PI, which falls under the copyright rules and
underlying mechanics on the other side can not be copyrighted. As I personally see it, both are
creative (= unique?) works, that are not less subject for copyright protection than a fiction novel
for example.

b) Wouldn´t the original ruleset already be considered unique (= creative), since perhaps not
their different parts but the whole set/combination of them make for a unique product falling
under the copyright law? Personally spoken, if somebody talks about AC, HD and Saving
Throws, I immediately think of D&D. Therefore that is a kind of PI (at least in my opinion).

3) Is the visual presentation of game mechanics/content copyrightable or not? If the answer is yes (which I think is here the case, since the creativity behind this presentation process is unique), then a similar (albeit modified version) presentation might lead to confusion about the origin of the product in question. And this might lead unwary people to the assumption, that the product in question published by Frylock is 100% genuine and not the work of WotC in any way. In how far those modifications to the original stat block is sufficient to make it unique (= no infringement of copyright laws) would be interesting to see.

4) What is the difference between copyright and product identity? The mentioned monsters are “considered” (quote from the wikipedia entry of the Mind Flayer) PI by WotC. So as I understand it, PI is what makes a product unique/recognizable on the market. On the other hand PI can´t be copyrighted? And how do you legitimate PI (by a kind of patent act/bureaucracy, official procedure etc.). Very confusing for me (Let me make that clear at this point: No I don´t have any intention on going to war with WotC over that or question the validity of this aspect/statement or whatever you want to call it). Could the official stat block be considered PI and therefore a violation of PI be assumed? And as a side note: Game mechanics and rules can´t be copyrighted, but is a stat block a mechanic/rule or something different? Isn´t it rather a collection of creative imaginary values that may be interpreted individually (= house rules) and therefore are unique via the compilation of several more or less independent aspects into a single block?

5) If a license is published/made public it can be revoked, right? Why is the OGL considered unrevokable? As I understand it, the OGL is only viable in connection with the SRD, which results in the OSR/retro clone products being possible to be published (as long as you don´t violate mentioned PI). So if somebody violates a license in such an open and (IMHO) aggressive way (as is perhaps this case here), couldn´t that lead to the mentioned revoking of the OGL as mentioned by others, since WotC might see a possible threat to their products as a whole? Or is this unrevokable aspect based within the text of the OGL itself by not stating a kind of expiration date or procedure for revoking it in case the license publisher wishes to do so?

BTW for me the statement, that the OGL is nonsense/non-valid (no quotation here), is a very drastic statement.

6) If Frylock wouldn´t have placed his own copyright tag under the product in question and added an approbate license (OGL or 5E, whatever would be approbate here), then as I understand it, the whole affair would not have happened. So my stupid question is here: Why pose something as your own and make a big wind about it when notified about it, when there are possibilities to avoid that and still publish your work? To prove that everything in the gaming industry can be copied for free except for graphics and exact wording perhaps?

If I misinterpreted or misunderstood anything, please correct me.
‘Product Identity’ is a construct of the OGL. It only exists in so far as you agree to the incense and it’s terms. As the OGL is an agreement between two parties, PI is whatever the agreement says it is.

This issue isn’t about the OGL or PI, as Frylock is not using the OGL.

Intellectual Property (IP) on the other hand, may be what you’re thinking about?
 

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