Theory :At what point does a person have to cross to no longer be bound by the OGL?

[Morrus]

The compatibility license has a number of great real-world analogies.

You can claim compatibility with someone else's product with no special permission needed. Look at all those iPhone cases and chargers and things which claim compatibility with iPhones; those aren't licensed products. Same with things designed for models of car, cartridges for printers, and so on.

So simply claiming compatibility is not trademark infringement by itself.

The OGL isn't about trademarks, though. It's about copyright. Or, more to the point, it's an agreement whereby you completely circumvent copyright issues because you have permission to use certain text. You can happily use the description of a spell or a monster's statblock verbatim, and you're doing so with the property owner's blessing.

In exchange for that, you agree to a few things, none of which are particularly onerous. The most important thing you agree to is to not indicate compatibility in a way for which you don't have specific permission. In other words, you agree not to put "D&D" on the cover.

Back then, you had permission to use the d20 logo instead; not any more though. That logo permission has been rescinded.

So you can use the OGL, which gives you loads of free text you can copy as much as you want, but can't use any trademarks without permission.

Or you can indicate compatibility with trademarks without permission, but then you can't use the OGL to get access to all that free text. You have to rewrite every word yourself.

 

[Evenglare]

Thanks Morrus. This is all very interesting to know. Very helpful.

 

[delericho]

What say we take Monopoly and rename every square. Rewrite the rules so it's new wording. basically replace all the art, names, and reword everything.

Perhaps not the best example - apparently the rules for Monopoly entered public domain in the 1950s.

Or maybe it is, because people have indeed cloned Monopoly, and there have indeed been lawsuits.

Are we going to get sued by the guys who make Monopoly? it's less an OGL problem and more of a we obviously copied the game, but didn't plagiarize the words or pirate the art.

The answer may be more of a matter of what a jury can be convinced of. rather than hard rule of law. And that the guys who make Monopoly have a lot more money to hire better lawyers to argue that point of view.

Conveniently, "the guys who make Monopoly" are Hasbro. As noted, they can and have launched lawsuits against some clones, and have won some and lost some.

The legal answer seems to be that you can clone Monopoly, but that you have to be very careful in how you do it, because while the rules aren't covered by copyright (see above) there are lots of things that are protected: Hasbro own trademarks (I think) on "Community Chest" and "Go", and there are trade dress issues regarding the board.

Ultimately, it's probably possible but also more trouble than it's worth.

Oh, and most importantly: I'm not a lawyer. If you're considering going down this route, you'll need to speak to one.

 

[Wicht]

Board games are actually great examples though of how building on other people's mechanics produces better content, and how to do it. Its well understood in the board game community that rules themselves are not copyrightable and mechanics are copied all the time with board games. One game, say Dominion, makes Deck Building as a mechanic a viable way to play. Soon other games are taking that mechanic and running with it. Likewise, card drafting is made popular by 7 wonders. Suddenly Sushi Go, Among the Stars, and other games are using the mechanic in new and innovative ways. Likewise, nobody blinks when a game like King of Tokyo copies the "yahtzee" mechanics of dice rolling, or Diamonds uses trick taking as the key mechanic for its game. Its actually expected that most games will primarily use established mechanics for game-play.

What you don't want to do, though is repackage the same game, with the same theme and slap a new name on it. But sharing mechanics is a boon to everyone.

Also, back to OGL, I agree that the OGL lets you use other people's text, but that doesn't change my point that most of that text being shared is still mechanics in some fashion or other.

 

[Wicht]

That's when it becomes tricky yes?

No, not really - if you change money generation, introduced new paths, eliminated the collect $200 rule, changed estate upgrades, and introduced new resources, you would be on very safe ground as having a new game. (Assuming you also changed the art, and trademarked items).

 

[Wicht]

However, a lot of third parties didn't want to do the same. They wanted to keep their own material closed as much as possible. so they used vague open content statements that probably go against the spirit of things, essentially rendering their products unusable by other people, because they couldn't tell what was open content or not. Or made every piece of non-mechanical text product identity.

Examples of these "lot" of 3pp who didn't want to do the same and used vague open content statements, thus rendering their products unusable? My experience with OGL products (as a designer who borrows plenty of stuff from others) is that this is not in fact the case.

 

[Wicht]

That makes things much clearer Jeremy, thanks for the post. Again, I seriously am not making a game as of this point, but if I were I would not want to be subject to anything other than my own imagination and experiences of gaming. It's not a matter of using the OGL because then you can do whatever you want. It's a principle of being under ANY license like that. If I do want to make something compatible with D&D games and that ilk then I'll use the OGL. Any game I would want to build from the ground up, even though mechanics may be inspired by older games, I wouldn't want to be subjected by the OGL. Does this make it any clearer? It's not a matter of the OGL restricting what I can and can't do, it's a matter of not being under anything like this at all from a moral(ish) stand point.

I am not clear on what is immoral about the OGL? Again, do you actually know what the restrictions are for the license?

Also, why do you think that Evil Hat released their FATE system as OGL, seeing as how it was built from the ground up without any previously open content being used?

 

[The Crimson Binome]

Well that's not true at all. You are free to use, mangle, fold, rename, rework, or otherwise change any aspect of OGL material you want to work the way you want for your own product. You just have to give credit where credit is due for where you got your work.

During my last attempt to read through the OGL, my best guess at interpreting it was that you could use anything that you wanted, but had to acknowledge the changes. If I wanted to include a Tendriculos, but my whole game was d8-based instead of d20, then I'd need to point out all of the changes in the legal text. It wasn't sufficient to merely say that the flavor text for my monsters was copied from, and the stats were inspired by, the SRD.

But that's just my best guess. You can have a legal document which actually is very generous in its terms, but that's still a barrier to entry to anyone who isn't confident in their Legalese skill.

Likewise, OGL material does not have to be d20 material.

That's... not how I understood it. Within the context of this thread, as put forth by the OP, I was referring to the OGL in regards to system mechanics. If you're just borrowing flavor text, then that's another matter entirely, and it basically comes down to whether you as a less-than-professional writer can leverage the novelty of your new descriptions against the same old professionally-written text that players have been reading for fifteen years.

 

[Wicht]

During my last attempt to read through the OGL, my best guess at interpreting it was that you could use anything that you wanted, but had to acknowledge the changes. If I wanted to include a Tendriculos, but my whole game was d8-based instead of d20, then I'd need to point out all of the changes in the legal text. It wasn't sufficient to merely say that the flavor text for my monsters was copied from, and the stats were inspired by, the SRD.

Your best guess interpretation was off a bit then.

What you must do to use the OGL is firstly, include a copy of the OGL in your book.

Secondly, you must delineate, either in the license, or somewhere in the book, which parts of the book are open (this is section 8 of the license). Generally, the easiest way to do this is to say something to the effect of "All mechanics and rules in this book are designated as Open content. Any flavor text not already Open, including personalities, names or descriptions of En-World are copyrighted and may not be reproduced without permission." Flavor text is most often Closed. Mechanical text is most often Open, but you do need to check the book you are using to make sure which is which, because some publishers are more generous than others. (Again, in Creature Collection for instance, you can use the stats from the Creatures but not the names of said creatures or any of the flavor text; to use these creatures you need to rename them and put some flavor of your own on them.)

Finally, when you publish your copy of the OGL, in section 15 you must designate the source material you use. Normally this only requires you to include the section 15 from the books you are using in your section 15. The main exception to this is the Tome of Horrors which requires you to identify the actual creature used. Changes made to the creature, however do not need to be detailed.

This means that if I decide to use a monster from the Tome of Horrors, but then add on a template from the Pathfinder Bestiary and another template from Advanced Bestiary, then my section 15 needs to include the right Tome of Horror entry, the section 15 from the Pathfinder Bestiary and the Section 15 from the Advanced Bestiary. When I do mine, I go through and erase any duplicate section 15 info to make it look neat. And all of this makes it sound a lot more complicated then it is. Do it once or twice and you have it down.

Now in your case, if you want to use the Tendriculos, but not the actual mechanics, then you need to make sure the name is open. I check the d20pfsrd and see that it is. I write up whatever I want about the tendriculos, but when I do my section 15, I have to include the following: "Pathfinder Roleplaying Game Bestiary 2, © 2010, Paizo Publishing, LLC; Authors Wolfgang Baur, Jason Bulmahn, Adam Daigle, Graeme Davis, Crystal Frasier, Joshua J. Frost, Tim Hitchcock, Brandon Hodge, James Jacobs, Steve Kenson, Hal MacLean, Martin Mason, Rob McCreary, Erik Mona, Jason Nelson, Patrick Renie, Sean K Reynolds, F. Wesley Schneider, Owen K.C. Stephens, James L. Sutter, Russ Taylor, and Greg A. Vaughan, based on material by Jonathan Tweet, Monte Cook, and Skip Williams." That's it, and I'm done.

The OGL is actually easy to use. And if you want to use it, there are plenty of people who can walk you through your first attempt (which I more or less just did.)

That's... not how I understood it.

Nevertheless its true. Following the release of the d20 material, the OGL has been used for non d20 material. Again, FATE is OGL and has no obvious d20 material in it. Evil Hat created their own original system and decided to make it Open using the OGL. Anyone, at anytime, may introduce any new text and make said text OGL merely by applying the license to it. Furthermore, you are not actually required, if you use the OGL to make any new material you create OGL. You get to choose which material you create is Open and which is Closed.

What you may not do is Close off material that other people have made Open. You also may not place material into the OGL as Open which are in fact owned by someone else. (ie. I cannot take WoD material and use it in an OGL book and thus declare the material now free to use for everone).

Within the context of this thread, as put forth by the OP, I was referring to the OGL in regards to system mechanics. If you're just borrowing flavor text, then that's another matter entirely, and it basically comes down to whether you as a less-than-professional writer can leverage the novelty of your new descriptions against the same old professionally-written text that players have been reading for fifteen years.

The original question was based on some faulty assumptions, which were corrected early on.

Again, if you are going to the OGL for flavor text, you need to be very careful, because most actual flavor text in OGL books is generally closed content. If you create an OGL book, you are still, in most cases going to have to write your own flavor text. There are exceptions to this, but flavor text is an area where caution should be applied in what you copy.

 

[pemerton]

Within the context of this thread, as put forth by the OP, I was referring to the OGL in regards to system mechanics.

why do you think that Evil Hat released their FATE system as OGL, seeing as how it was built from the ground up without any previously open content being used?

A lot of discussions about OGL games and OGL publishing suffer from a degree of technical confusion.

I don't think Wicht is confused, but I think Saelorn might be.

The OGL - speaking very literally - is a piece of text: a contract, written and copyrighted by WotC. Like all contracts, it contains certain terms. In the case of the OGL, those terms regulate the distribution and copying of RPG texts.

Roughly speaking, any RPG text which is OGC ("open game content") can be distributed by anyone, without the need to pay fees or royalties, provided that that person abides by the terms of the OGL. These include rules about including a copy of the licence in the new publication, clearly identifying OGC in the new publication, and acknowledging other's copyrights in respect of OGC that the author of the new publication did not him-/herself create. They also include obligations not to use so-called "product identity" included by those prior OGC creators in their RPG texts - "product identity", roughly speaking, is story elements and trademarks.

There are two basic ways for the OGL to actually be enlivened as a contract in respect of a piece of RPG text, thereby transforming that text into OGC.

Method (i) requires an active decision: a person, who enjoys copyright in a piece of RPG text, delcares that henceforth that text may be used (ie reproduced in original or modified form) subject to the OGL.

Method (ii) is built into the terms of the OGL itself: "game mechanics . . . methods, procedures, processes and routines" in a work that is itself subject to the OGL become OGC; and a person who publishes a work subject to the OGL promises to all the world that his/her own OGC is usable under the terms of the OGL.

WotC used method (i) in respect of a piece of RPG text called the SRD ("system reference document"). Here is the relevant declaration, found in a file called "Legal.rtf" that is part of my downloaded copy of the 3.5 SRD:

Permission to copy, modify and distribute the files collectively known as the System Reference Document (“SRD”) is granted solely through the use of the Open Gaming License, Version 1.0a.

This material is being released using the Open Gaming License Version 1.0a and you should read and understand the terms of that license before using this material.

The text of the Open Gaming License itself is not Open Game Content. Instructions on using the License are provided within the License itself.

The following items are designated Product Identity, as defined in Section 1(e) of the Open Game License Version 1.0a, and are subject to the conditions set forth in Section 7 of the OGL, and are not Open Content: . . . <snip a list of names of various RPG products and well-known D&D story elements> . . .

All of the rest of the SRD is Open Game Content as described in Section 1(d) of the License.​

Evil Hat did the same thing with regard to Fate, in respect of 3 RPG texts (Fate Core System SRD, Fate Accelerated Edition SRD, Fate System Toolkit SRD). You can see the details here.

Mostly when people talk about publishing an OGL game product, they are talking publishing a RPG text that combines original text, in respect of which they own the copyright, with text in which someone else owns the copyright, but that is OGC (in virtue of either method (i) or method (ii)). Many such products (not all) incorporate RPG text that is found in the WotC's SRD (and hence is OGC via method (i)).

Because many of the RPG texts that use the OGL to reproduce OGC also generate new OGC (via Method (ii)), the amount of OGC in the world increases over time.

I seriously am not making a game as of this point, but if I were I would not want to be subject to anything other than my own imagination and experiences of gaming. It's not a matter of using the OGL because then you can do whatever you want. It's a principle of being under ANY license like that.

The OGL is another person's license. You are bound by the OGL and all the legalese that comes with it. If I were creating a game, which I'm not, but I'd rather not be subject to ANY other persons license to retain full creative control over all of my game

As others have stated upthread, you are never obliged to enter into a contract with anyone.

The flipside of this is that others, who enjoy copyright in the texts that they have written, are never obliged to let you reproduce their words. (Compulsory licences aren't relevant in the RPG context.)

In a post upthread you mentioned the recent events around C&D on character generators. If you publish material which infringes someone else's copyright, they may try and take action against you. The fact that you haven't entered into a contract with them won't help - copyright is a form of property, and so is (roughly speaking) good against all the world, whether or not you have made any promises to the copyright-holder.

I see wizards throw down and make pathguy remove his pathfinder character gen even though it complies with the OGL as is my understanding.

My understanding was that it was not published under, nor compliant with, the OGL. If it was, then WotC would have no basis for complaint, because there would have been no breach of any contract with WotC, and no use of copyrighted material or trademarks outside the terms
of the contract.