Licensing, OGL and Getting D&D Compatible Publishers Involved

[Nellisir]

Well, the answer to your question is "no". Numenera is not open, but it does have a recently published community use policy.

Thanks.

Well, this might be an interesting test of how far name brand (to go back to Wicht's comment) will get you with a closed system. Monte's fan use policy is clearly spelled out (good job!), but I am not sure that it does anything over and above conventional fan use policies, with the possible exception of allowing some artwork reuse. There's certainly no chance of a 3rd party market evolving around it (the policy explicitly disallows products for sale).

 

[Wicht]

Numenera does provide a good test case. Cook has the name recognition, which will give it the initial sales, but I do have to believe OGL brands, especially the OGL engines, are going to have the longevity.

If I was a wagering man (which I am not) I would wager that of the three: FATE, Savage Worlds, or Numenera; in five years FATE and Savage Worlds will still be in print in one form or another, but Numenera will not. For Monte Cook's sake I would like to be wrong, and I wish him success. But in my experience, it seems stand alone systems (especially ones tied to a particular setting rather than to a particular engine) have an initial burst of enthusiasm which tapers off when the next new shiny hits. There are exceptions, Call of Cthulhu being the premier of these (though even there, Chaosium is very generous in letting others use both their setting and their engine), so I guess we shall see.

 

[Nellisir]

it seems stand alone systems (especially ones tied to a particular setting rather than to a particular engine)

That's the main reason I'm not prepared to really call it a great test case. It's in a niche environment of RPG settings & systems, and a kinda uncommon niche at that. I'd be happier if it was straight-up fantasy, sci-fi, or superheros - that would make for easier comparisons to D&D, Mutants & Masterminds, GURPS, etc.

I'm trying to think of other game systems that have come up in since 3e and survived. Hackmaster seems to still be a going concern. Warhammer Fantasy? Lot5R? Deadlands? Dragon Age? Is there a notable difference between games that were established pre-2000 and survive as closed systems vs newer games that are more recent and closed?

Didn't Mutants & Masterminds become DC Heroes or something? How is the OGL handled in those books?

 

[pemerton]

rules cannot be trademarked or copyrighted. Putting rules under the trademarked name of Dungeons and Dragons is not the same as trademarking those rules

A trademark is (by definition) a sign. A (representation of a) rule is also a sign (or collection of signs eg E = MC^2). I don't see any reason in principle why the expression of a rule by a sign couldn't be used as a trademark - WotC's d20 logo is getting pretty close to this, for instance.

Well, in the Tetris case they copied the whole game, AFAIK, inasmuch as the end user was concerned.

Knowing nothing more of the case that was has been posted on this thread, what you have said here give me the impression that the publisher of the infringing game was using different code - and thereby trying to avoid copyright infringement - while delivering an identical play experience to the end user. Is that correct? And if so, is the idea of "look and feel" in the case then related to this contrast - which arises in the computing case - between code and end user experience?

I see no bright line between what is a rule, and what is a look and feel, when things like "number of game pieces" and " the way pieces moved in the playing field" is a look and feel and also a rule.

If the Tetris decision is related to peculariaties of computing - and the contrast between code and user experience - then it's not clear to me what, if any, its implications would be for very different modes of gaming in which the end users themselves apply the rules. Hence my question above to S'mon.

Bloody common law.

Isn't copyright law, in the US at least, predominantly a statutory body of law? I assume that we are talking about judicial interpretation of a copyright statute, rather than common law.

using 3d6 to generate stats STR DEX CON INT WIS CHA very probably would not be infringing.

A precise reproduction of the 1e AD&D saving throw tables would, I think, likely be infringing

<snip>

The general idea of a saving throw table is not protectable though, nor (AFAICT) are any elements derived from a formula, such as "+1 every 3 levels". So the formula-derived 3e saving throw tables might not be protectable whereas the 'messy' 1e tables probably would be.

Your ability scores are both rules and look/feel. Hit points are both rules and look/feel. Armor Class is both rules and look/feel. Alignment is both rules and look/feel. Move rate is both rules and look/feel. There is no realistic distinguishing line between being a rule and also being look/feel.

For what it's worth, my intuition is that armour class, hit points and movement rate as numerical representations of hardness, toughness and distance per unit of time would be like the non-copyrightable examples that S'mon gives. But that having AC 9 or AC 10 = unarmoured, and AC 3 = plate mail, etc, might be closer to the example of "number of game pieces" and hence copyrightable.

My feeling is that the description of a human being as characterised by six stats STR INT WIS DEX CON CHA might be in a similar category.

And the D&D alignment system strikes me as not just "look and feel" but itself a substantive story element from which similar game elements in other games could be fairly said to have been derived. (The idea of alignment wouldn't be like this, but I would have thought you would have to use different alignments.)

S'mon, any thoughts on how far off target I am in the above?

 

[pemerton]

Didn't Goodman publish for 4e without using the GSL. I don't remember them getting sued, so I am not convinced the danger of litigation is as great as some might think it is.

What Goodman games did clearly wasn't infringing because wotc would have been required to go after them or give up certain rights, right? Could wotc have just ignored it and still gone after others?

Darjr, WotC can ignore some copyright infringements while pursing others. The situation can be different for trademarks - my simplistic understanding is that a trademark diluted is a trademark lost - but I would be surprised if Goodman was purporting to use any WotC trademarks to identify its products.

As for the issue of infringement - I think there's a big difference between publishing an adventure containing original story elements (NPCs, monsters, events etc) and the only reproduction of WotC's material is using certain keywords without defining those keywords, and trying to write something which can be used in place of WotC's rulebooks to deliver the same gaming experience.

The latter is what the retroclones do, and what PF does, and they are reliant on the OGL for doing so. (And I'm personally not 100% sure that all the retroclones are compliant with the OGL, but that's really a matter between those publishers and WotC.)

 

[GravyFingerz]

Isn't copyright law, in the US at least, predominantly a statutory body of law? I assume that we are talking about judicial interpretation of a copyright statute, rather than common law.

I have to be honest, I don't even know what I really said.

 

[Wicht]

A trademark is (by definition) a sign. A (representation of a) rule is also a sign (or collection of signs eg E = MC^2). I don't see any reason in principle why the expression of a rule by a sign couldn't be used as a trademark - WotC's d20 logo is getting pretty close to this, for instance.

I am not a lawyer, but it seems to me that E=MC^2 is of itself not going to be easily trademarked as a generic sort of sign. Now if one made a fancy graphic utilizing it, then I am pretty sure that the graphic in and of itself would be able to be trademarked. The word "Cola" for instance, is not able to be trademarked of itself as its a generic word, but put it in a swirly sort of font similar to what Coke uses and you have crossed a line.

With D20, the utilization of the phrase in a book is not going to be trademark infringement if its used as an expression to indicate a type of dice, as it commonly is, and it will be able to be shown that d20 is a common gamer expression. Again, put it in a fancy logo as a product identification and then you can call trademark on it.

 

[Nellisir]

Darjr, WotC can ignore some copyright infringements while pursing others. The situation can be different for trademarks - my simplistic understanding is that a trademark diluted is a trademark lost - but I would be surprised if Goodman was purporting to use any WotC trademarks to identify its products.

Trademark and copyright are very different things. A trademark has to be registered and defended. Copyright is (now) automatic and cannot be abandoned without intent. (IANAL) A trademark represents a company, brand, or product - it's a symbol. A copyright applies to a creative work. Dungeons & Dragons is a trademarkable phrase; the entirety of the Player's Handbook is not.

You probably couldn't trademark E=MC^2 on it's own, because it's a pretty common equation. You might trademark "E=MC^2 Foot Lotion", however. (Just a guess - I'm thinking "Axe Body Spray", for example.)

From wikipedia:

Abandonment of copyright: Abandonment is recognized as the explicit release of material by a copyright holder into the public domain. However, statutory abandonment is legally a tricky issue which has little relevant case precedent to establish how an artist can abandon their copyright during their lifetime. The more common approach is to license work under a scheme that provides for public use rather than strictly abandoning copyright.
Copyright protection attaches to a work as soon as it is fixed in a tangible medium, whether the copyright holder desires this protection or not. Before the Copyright Act of 1976 an artist could abandon or forfeit their copyright by neglecting to comply with the relevant formalities. Difficulty arises when one tries to apply the doctrine of abandonment to present-day concerns regarding the abandonment or gifting of a digitized work to the public domain. The abandonment of a work is difficult to prove in court, though Learned Hand stated proposed a test which parallels other forms of abandonment law wherein an author or copyrightholder could abandon their work if they intend to abandon it and commit an overt act to make public that intention.Despite this test, the current legal environment towards protectionism is so strong that a court might disregard an author’s statements regarding their intent.

Abandonment of trademark: Abandonment of trademark is understood to happen when a trademark is not used for three or more years, or when it is deliberately discontinued; trademark law protects only trademarks being actively used and defended.

 

[Nellisir]

I am not a lawyer, but it seems to me that E=MC^2 is of itself not going to be easily trademarked as a generic sort of sign. Now if one made a fancy graphic utilizing it, then I am pretty sure that the graphic in and of itself would be able to be trademarked. The word "Cola" for instance, is not able to be trademarked of itself as its a generic word, but put it in a swirly sort of font similar to what Coke uses and you have crossed a line.

With D20, the utilization of the phrase in a book is not going to be trademark infringement if its used as an expression to indicate a type of dice, as it commonly is, and it will be able to be shown that d20 is a common gamer expression. Again, put it in a fancy logo as a product identification and then you can call trademark on it.

That agrees with my interpretation. A trademark is often text + graphics, and the text alone does not necessarily constitute a trademark.

 

[Mistwell]

And the D&D alignment system strikes me as not just "look and feel" but itself a substantive story element from which similar game elements in other games could be fairly said to have been derived. (The idea of alignment wouldn't be like this, but I would have thought you would have to use different alignments.)

S'mon, any thoughts on how far off target I am in the above?

Why are you asking the guy in the UK about American IP law when you're talking to an American attorney who represents some of the very RPG companies we're discussing?