He would then need to establish a section 15 statement which incorporates the copyright for everyone's contributions.
Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.
Dias Ex Machina
Publisher / Game Designer
What is stopping someone from creating a new OGL titled 5.75 and establishing new rules based on OSR that people all find familiar but have enough proper names changed in order to skirt copyright, and then offer that up to everyone for free...
Dias Ex Machina
Publisher / Game Designer
Another point to consider, back in 2008, when 4E released the GSL, few companies signed on, but one of the few that did was Goodman Games. I was working with them back then, and one of the stipulations about the GSL was a moratorium on releasing adventures. I think you couldn't release books until November of 2008. But Goodman, wanting to release product immediately, published a series of 4E-compatible adventures. I own all of these--NONE of them have any OGL dialogue at all within their pages. They just say 4E-Compatible, and that was it. Only one of three featured a copy of the original 2000 OGL within their pages.
Yes, there was quite a lot of publishing for 4e by 3PPs early on that did not use any licence. It's very doable, especially if you have legal knowledge of IP (copyright & trademark) law, as I think Goodman does. Indeed you can legally do stuff like put "Compatible with D&D. TM used without authorisation" on your work, that is forbidden under the OGL.
OSR rules are based on works for which WoTC hold the copyright. In the absence of a licence, something like OSE or S&W probably infringes a copyright held by WoTC.
Now there are also OSR games like White Star published under the OGL that probably do not include any WotC-owned IP. They use D&D based mechanics, but the mechanics alone are probably not protectable. I think Stars Without Number et al don't even use the OGL, for this reason. I could imagine a licence based off the rules mechanics of SWN. But since those mechanics are non-protectable, you don't really need a licence anyway.
I guess you could create a genericised fantasy game that uses D&D style game mechanics, but no protectable copyright material, and then licence it under an OGL. Getting the balance right would be tricky, and you would need to be ready to defend a civil action/lawsuit from WoTC to establish that your work was non-infringing. I think it (forking D&D like this) is doable, but tricky. Get it wrong and you get squashed.
Conversely, it is legally much easier to create D&D-compatible adventures, campaign sourcebooks etc without a licence, and without infringing copyright. I'd think that was the obvious way to go.
mhd
Adventurer
Last year, Germany had a very cheap public transport ticket for a few months, where you just paid 9 Euros once and could use most trains, subways etc.; People weren't happy when this period ended, and so one group formed where you could basically pay the same as a monthly contribution, and if you were caught taking trains illegally, they paid your fine. I think something similar has been going on somewhere in Scandiwegia for years.
Now what about doing that for game authors? Some kind of 'self-defense union' where you try to do that "compatible without licensing" deal, pay $1 monthly, get a neat logo to put on your books/PDFs, a decent FAQ, training for compliance editors, and some friendly lawyers stand ready to swoop in if a C&D letter arises, you're blocked on DT or something like that. Countering the implied terror of WotCs lawyers.
I mean, it might be easy/legal enough to publish "compatible" documents, but the industry still remembers the early TSR and later Palladium threats and thus isn't very keen on risking things.
Now what about doing that for game authors? Some kind of 'self-defense union' where you try to do that "compatible without licensing" deal, pay $1 monthly, get a neat logo to put on your books/PDFs, a decent FAQ, training for compliance editors, and some friendly lawyers stand ready to swoop in if a C&D letter arises, you're blocked on DT or something like that. Countering the implied terror of WotCs lawyers.
I mean, it might be easy/legal enough to publish "compatible" documents, but the industry still remembers the early TSR and later Palladium threats and thus isn't very keen on risking things.
Can you say a bit more about why this is so?
A retro-clone game is taking a substantial part of WoTC's copyright work in their game. A partial clone may be, too. An adventure or campaign setting that happens to be D&D compatible probably is not.
The issue is whether a "substantial part" of the copyright work is taken. Something like the Primeval Thule Campaign Setting's non-rules-specific material pretty clearly is not taking from a WoTC copyright work. Nor are generic fantasy settings; even if they share some common Tolkien DNA with eg Forgotten Realms.
Do you think the amount of statted-up material in the adventure or setting would make a meaningful difference here?
Statted up material taken from another work, yes. You can't include an owlbear stat block (IMO) without the OGL. Whether you can include the word Owlbear - as in "2 owlbears live here" - is iffier. I think you probably can, but it's not 100% guaranteed a judge would agree. Safer not to include any unique D&D monsters. If you have Dark Elves, don't make them Drow. You can have trolls and ogres and giants and goblins and dragons and elves and dwarves and giant evil wolves. You can have orcs too, else TSR would have been in trouble.
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