OGL and copyright

[jmucchiello]

whats the best way to mark ogl stuff from your own? an example. You make a new race, but that race has an ability that you designed, but it also has an ablity that rests in ogl territory.

See now this I find dubious. Remember your "new ability" cannot be derivative of any OGC noted in your copy of the OGL. I would love to know what kind of race ability you could create that is not derivative of existing OGC and is compatible with D20 in general. Afterall, if your class ability has a saving throw or includes DC calculations or causes a standard effect (fatigue, paralysis, etc) then chances are that ability by nature of working with d20 is derivative of some part of the SRD. And thus you must make it OGC in your book.

Generally open content is designated by using the largest containing object: "The racial features in chapter 2 are open game content but the race descriptions are not." You see, the individual game mechanic would be hard to prove is not derivative of the existing game since it must work within the framework of the game. If the ability has a DC or duplicates an effect -- it's OGC. And you really shouldn't care about protecting the mechanic. You should care about protecting what makes the race unique -- it's description, culture, personality traits, etc. Basically you will save yourself a lot of formatting headaches if you just put the mechanics in one place "racial features" and the description (or fluff) in a seperate section and then designate which sections are or are not open content. Trying to micromanage the OGC designation will lead to an ugly book since no one wants the font face to change every other line.

 

[S'mon]

Generally speaking:

Game mechanics basically aren't copyright-protected (although the text expression of them is protectable) but they have occasionally been patented. And you don't use a game mechanic someone else patented unless you can pay a bunch of lawyers.

It's true that the OGL purports to license the use of some non-copyright-protected materials. However, if you agree to the OGL, it can still be a binding unilateral contract, because (under UK contract law) WoTC are offering valid 'consideration' - they let you do some things you legally could not dowithout infringing copyright (include chunks of the SRD in your work, say), in return for you agreeing not to do some things you legally could do (refer to Drow and other 'product identity' in your work). WotC's concept of product-identity is not a legal term, most of it is not probably protectable by copyright, but if you agree to the OGL you agree not to refer to it; and doing so would breach the contract & would let them sue you for any copyrighted material you do include.

 

[prosfilaes]

It is widely believed that game mechanics are uncopyrightable in the USA, and according to a circular on the US Copyright Office's website [3], "Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles."

Sure. That means that WotC can't sue Palladium Fantasy or Rolemaster. On the other hand, the non-mythological gods in the PHB and elsewhere are clearly copyrightable setting material. Would it let you use the stats for the dwarves? Arguably the details of the dwarves are a copyrightable part of the setting, and not game mechanics. I would feel more strongly that the different types of dragons with their distinct attacks and defenses are copyrightable setting.

I think that this is very clearly not obvious, and probably not as flexible as you'd like. The further problem with this, is that if Hasbro sues you, you have little chance unless you can get a good lawyer willing to go into the nitty-gritty of copyright law, and even then aren't guaranteed to win. Note that Palladium almost bankrupted WotC (pre-Magic) for including a half-page of pure stats in the back of "The Primal Order". I think WotC had a good chance of winning with the aforementioned good lawyer, but they couldn't afford to take it to court.

The OGL gives you much clearer lines about what you can and can't do than trying to understand how the copyright law about game mechanics interacts with roleplaying games. And I haven't heard of anyone going to court over the OGL, or even being threatened with legal action.

 

[S'mon]

"Arguably the details of the dwarves are a copyrightable part of the setting, and not game mechanics. I would feel more strongly that the different types of dragons with their distinct attacks and defenses are copyrightable setting."

You'd have a very weak case under UK copyright law (non literal copying or derivative work), and pretty well non-existent under the European copyright regimes with which I'm familiar. You might have a stronger case in US law under the most expansive views of copyright taken in some US courts of first instance, but assuming equal quality lawyers arguing each side I think it'd be a long shot.

 

[S'mon]

And I haven't heard of anyone going to court over the OGL, or even being threatened with legal action.

I think this is very important. The most important thing about the OGL & WotC is that WoTC, unlike T$R, have consistently avoided acting like jerks over their IP. They have not been threatening people, especially they have not been threatening members of the public over non-commercial use. So I think they're entitled to some good will when it comes to dealing with the OGL and their materials. For a start, the more the gaming community respects WoTC for not acting like jerks, the better the chance that they'll go on not acting like jerks.

 

[Jürgen Hubert]

whats the best way to mark ogl stuff from your own? an example. You make a new race, but that race has an ability that you designed, but it also has an ablity that rests in ogl territory. Whats the best way to protect the copyright to the race, while giving wtc the credit they deserve? Would making a list of all abilities used, and taken from the ogl and listing them at the end work?

I don't know. Though personally, I'd make all rules material OGL, both the old, derived stuff and the new. After all, coming up with new material that can be used by others is part of the whole point of the OGL.

And really, what do you have to lose by making your rules material free? Trust me, no one is going to get rich with the rules you write up - the market is too small for that.

On the other hand, you can designate the name of the race as Product Identity, and any non-rules descriptions (the "fluff") do not need to be part of the OGL at all.

Whats a good example of a 3rd party ogl book that protects their world and their characters (basicly ID) while also not breaching contract.

Not a book, but I hope my website (which features a new campaign setting) can demonstrate the concept.

Most pages do not have any OGL content at all - they contain pure setting description, which I retain all rights to. However some, such as these stock NPCs do - and here the OGL content uses a different font to distinguish it from the non-OGL content. Additionally, each such page has a link to the entire text of the OGL licence at the bottom.

 

[Glyfair]

I don't know. Though personally, I'd make all rules material OGL, both the old, derived stuff and the new. After all, coming up with new material that can be used by others is part of the whole point of the OGL.

I agree. I think some part of Freeport's popularity and use is because the early books were completely open game content. That encouraged other companies to reference the product in their works.

 

[Ourph]

As I said, I'd have to read the OGL. Glancing at it, the definition of Product Identity is rather unhelpful:


I don't see 'names of character classes' in the list, though.

First, you and Psion are right, the word "swashbuckler" isn't PI. What I meant was, if you created an NPC called a Swashbuckler, with all the same capabilities of the Swashbuckler listed, you'd be using WotC PI (class abilities are specifically listed as PI).

Second, you suggested in your first post that instead of giving the class abilities you could simply reference the book in which the class appears. Book titles are both PI and presumably trademark of WotC. Which is why you would have to seek permission.

But you're right, creating your own Swashbuckler class or just refering to an NPC as a Swashbuckler shouldn't be a problem. I think I may have been misunderstanding some of the specifics of what you were suggesting in your original post.

 

[tensen]

Other criticism is based around the part of the d20 System Trademark License which defines "Open Game Content" to include game mechanics and purports to license it. It is widely believed that game mechanics are uncopyrightable in the USA, and according to a circular on the US Copyright Office's website [3], "Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles."

From my own personal view on the situation:

The trick is to understand that yes, the statement that game mechanics are not copyrightable. But, that the text of it is. So you can rewrite normal games all you want, under those terms (though check with your lawyer for sure).

However, if you chose to use the d20 license, you have to abide by the terms and restrictions WOTC applies to it. It isn't a best of both worlds thing (at least for you... for WOTC it was intended to be).

 

[Morrus]

Friend, I must say I get a sinking feeling in my gut thinking about you starting a publishing endeavor based on this. As someone who follows copyright and gaming issues very closely, this is a highly interesting legal critique.

But the most important thing is that to date, no one has been able to uphold this principle in court against WOTC. Not any writer, not any publisher, not any company.

And there's a simple reason for that - the issue has nothing to do with copyright law. It has to do with contract law (the d20 STL is a contract). You get to use the d20 logo in exchange for agreeing not to use material wotC don't want you to. If you don't want to be bound that that, don't use the logo. Simple.