D&D 5E Lacking a license, what constitutes fair use?

[ccooke]

(Note that I'm not actually asking for legal advice from the internet, here. I'm mostly curious as to what people think)

So I've been working on a little coding project to make my DMing a bit better/easier. I'm sure most of us have noticed the NPC statblocks at the back of the Monster Manual, as well as the bit of text that says you can apply racial features to them without changing their CR.

Given that both the games I run are in a somewhat urban setting, that made me very happy - I can easily tailor the NPCs that the party meets to the locations they're in. The city of halflings can have sneak-thieves with the Lucky trait. The guard in a High Elven city might open up a conflict with a volley of various ranged cantrips. Most amusingly, from a couple of weekends ago, the (greater) invisible mage the party were attempting to hunt down while dealing with a massive fight was a wood elf - better sneak ability and an extra five feet of movement threw off their expectations a bit (and they didn't see her closely enough before she turned invisible to identify her race).

The issue, though, is that applying a racial template is quite a bit of faff to remember. So I wrote some code that understands 5e statblocks, can generate them in Markdown and can apply templates to them. It can even do things like pick random-but-synergistic options for Half Elf/Variant Human extra skills and stat boosts.

Obviously there is no way I can ever really share the code at this point. Maybe next year, if the language in the expected free license is open enough (and I clean out anything not included). I suppose if I remove all the actual stat blocks and racial templates, put together a nice file format for allowing people to input their own and released that, it would be okay.

What I'm wondering about here is: This is a pretty in-depth implementation of an aspect of the 5e mechanics. Is this the sort of thing that a "free" license should cover? I find myself in two minds about it

As to fair use, I'm pretty sure that posting lots of stat blocks would be taking the piss utterly, but if people would like to see an example of the output, I'll post one (1).

(I guess I should probably just ask WotC about this, which is what I'll do once the code's a little more complete. Right now, I have all the races implemented and about the first three pages of NPC statblocks. The code doesn't yet scale AC automatically when DEX increases, and it doesn't know about feats or spells yet in any real sense (so it can't yet pick a feat for the Variant Human, or a cantrip for High Elves). It's doing about everything else, though.

I wrote this to make my own games a bit better, but it would be nice to be able to share it at some point.)

 

[Astrosicebear]

Until WOTC releases information on a OGL/GSL inclusion for 5e, anything outside of the free PDFs is legally off-limits.

Now, some argue that because of the wording on the original OGL, alot of stuff is still covered by the OGL, and even though you may get a C&D letter, they cant sue for damages unless you violate copyright by say releasing copyrighted material (info on certain monsters basically). They cant copyright the mechanics, so posting stat blocks would be fine. As long as those stat blocks didnt post any information content from non free sources.

So you could post Half-elf racial abilities, but not the context or data of those abilities... you could say "Half Elf Traits". and be fine...but if you went into detail, you'd be in trouble (reproducing material).

Im no expert, others here might have more insight. If you wish no money off this, you should be ok by the original OGL. It gets really iffy right now if you want to make any compensation.

 

[Sacrosanct]

Until WOTC releases information on a OGL/GSL inclusion for 5e, anything outside of the free PDFs is legally off-limits.

Now, some argue that because of the wording on the original OGL, alot of stuff is still covered by the OGL, and even though you may get a C&D letter, they cant sue for damages unless you violate copyright by say releasing copyrighted material (info on certain monsters basically). They cant copyright the mechanics, so posting stat blocks would be fine. As long as those stat blocks didnt post any information content from non free sources.

So you could post Half-elf racial abilities, but not the context or data of those abilities... you could say "Half Elf Traits". and be fine...but if you went into detail, you'd be in trouble (reproducing material).

Im no expert, others here might have more insight. If you wish no money off this, you should be ok by the original OGL. It gets really iffy right now if you want to make any compensation.

Not necessarily. There are two parts that often get overlooked.

1. Trade Dress.
2. The odds a consumer would mistake your product for an official project, leading to potential income loss by the IP holder.

So it's more convoluted besides "just don't copy word for word". When I had a lawyer look at it, that's the advice I was given. Fair Use for most part allows you to do things like, "Compatible with D&D ™ 5th Edition", so there's no need for what some people do ("Compatible with the 5th edition of your favorite fantasy game"). It does not allow you to include the same information as in the official rules. So you could do something like create your own race and list your own traits, but not make essentially a copy of the half elf traits.

Also, just because something is free, doesn't mean it's open to copy like you imply.

 

[ccooke]

Until WOTC releases information on a OGL/GSL inclusion for 5e, anything outside of the free PDFs is legally off-limits.

Now, some argue that because of the wording on the original OGL, alot of stuff is still covered by the OGL, and even though you may get a C&D letter, they cant sue for damages unless you violate copyright by say releasing copyrighted material (info on certain monsters basically). They cant copyright the mechanics, so posting stat blocks would be fine. As long as those stat blocks didnt post any information content from non free sources.

So you could post Half-elf racial abilities, but not the context or data of those abilities... you could say "Half Elf Traits". and be fine...but if you went into detail, you'd be in trouble (reproducing material).

Im no expert, others here might have more insight. If you wish no money off this, you should be ok by the original OGL. It gets really iffy right now if you want to make any compensation.

If I were to release this, I wouldn't be doing so for money. It's quite clearly a derivative work - making money from it would require a proper commercial license.

As I said, I'm not actually asking for legal advice here. I'm more noodling on what people think of situations like this, because I've been thinking about it for the last few days.

It would be nice to throw up a quick web service that people could use to generate derived statblocks for their own game ("Oh, hey, I need eight scouts from this city. So that's five wood elves, two half elves and a human"), but I'm not going to do that unless it's clear that it's legally viable, and I'm not going to actually bother determining if this idea specifically is viable until the code is basically done. My main focus right now is being able to quickly generate unique NPC stat blocks on my tablet before the next game session I need them

The weekend before last, I ran our first session for my more experienced group using the full 5e rules (PHB and MM, rather than playtest). We finally got to a big climactic battle the campaign has been leading towards for about a year, and the system worked amazingly. But that involved 25 NPCs (10 scouts, 11 guards, one priest, two veterans and a mage. The 6th level party spent an entire day planning to storm their fortress (using lots of spells and one-off resources))... and I can't help but feel that if I'd had the resources to easily generate more unique statblocks for all of those, the fight would have been even better and more interesting.

I guess I'm never satisfied; it's a clear candidate for the best session I've ever run.

 

[Mistwell]

If you have any plan to make any money from it at all, do not trust a single word of free advice from strangers on an Internet gaming board. Go pay an attorney for advice, like the other companies that have published 5e material on a for-profit basis.

On the other hand if you are looking to give it away for free, you probably have more latitude. Not on a legal basis, but more on a "WOTC is less likely to sue you" basis.

But really - don't trust free legal advice from anonymous strangers on an Internet gaming forum. It's your livelihood on the line, not theirs. Even if you seem to get a consensus answer, do not trust it. The law is not based on a consensus answer of random strangers on an Internet gaming forum. It's usually more complicated than any non-lawyers think, no matter how much they've read about it on the Internet.

 

[Boarstorm]

I'm not going to remark on the legal aspect because I have a firm enough grasp on the laws (from several courses and seminars) to know I can't speak intelligently about it.

But I will say this -- That bit of code sounds extremely useful and I hope that when 5E's version of the OGL comes out you will be able to share it.

 

[Umbran]

From the Copyright Act of 1976, 17 U.S.C. § 107:

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

• the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• the effect of the use upon the potential market for or value of the copyrighted work.

The listing is not exclusive - a court may consider other factors, but must consider at least the above.

Note that "not for profit" is not the same as "nonprofit educational" purposes. Just because you don't plan to make money, doesn't make it okay. If you're not using the quoted work for parody, criticism, or education, you're on shaky ground.

 

[Astrosicebear]

If I were to release this, I wouldn't be doing so for money. It's quite clearly a derivative work - making money from it would require a proper commercial license.

As I said, I'm not actually asking for legal advice here. I'm more noodling on what people think of situations like this, because I've been thinking about it for the last few days.

It would be nice to throw up a quick web service that people could use to generate derived statblocks for their own game ("Oh, hey, I need eight scouts from this city. So that's five wood elves, two half elves and a human"), but I'm not going to do that unless it's clear that it's legally viable, and I'm not going to actually bother determining if this idea specifically is viable until the code is basically done. My main focus right now is being able to quickly generate unique NPC stat blocks on my tablet before the next game session I need them

The weekend before last, I ran our first session for my more experienced group using the full 5e rules (PHB and MM, rather than playtest). We finally got to a big climactic battle the campaign has been leading towards for about a year, and the system worked amazingly. But that involved 25 NPCs (10 scouts, 11 guards, one priest, two veterans and a mage. The 6th level party spent an entire day planning to storm their fortress (using lots of spells and one-off resources))... and I can't help but feel that if I'd had the resources to easily generate more unique statblocks for all of those, the fight would have been even better and more interesting.

I guess I'm never satisfied; it's a clear candidate for the best session I've ever run.

There are already numerous character generators online for 5e. I don't see a monster generator as much different. There are already monster encounter generators as well. Just be sure to exclude any monster types that are specifically protected and you should be fine.

 

[Lerysh]

On the whole, rule systems can't be copyrighted. This is why there are six million Monoploly clones out there. As long as they use different artwork and call it something like Star Wars-Opoly they are safe. This is the reason why books of rules contain fluff and art.

Your safest bet is to wait for the OGL agreement, but if you want a jump start, as long as you don't copy their artwork or their TM names (Mordekinen, Drizzt, Breland, etc.) you should be ok. Stat blocks in particular can not be works of copyright is my understanding, which may be part of why they release an OGL anyway.

 

[Umbran]

Stat blocks in particular can not be works of copyright is my understanding, which may be part of why they release an OGL anyway.

The data within the stat block cannot be covered by copyright, but the formatting can. If you print/display the same data in the same format WotC uses, technically they can come down on you for it.

And, by they way, the "OGL" is a specific license. It is not a general term for a license to use their stuff. I don't expect they'll use the OGL for 5e.