Trademarks and RPG:s

[pbrink]

Forked from: OGL 4E question

Game mechanics for roleplaying games cannot be copyrighted. As long as you don't violate any of WoTC's trademarks, and write the game in your own words, you could theoretically create a 4e-ish game with or without using the OGL. [my emphasis]

I've seen a lot of claims that WotC owns trademark rights to words and/or terms used in the D&D rules over the years and I frankly don't understand what those rights could possibly be. Someone who acts in a commercial context may assert any trademark rights he wants, but as long as those words, terms or symbols are not used as trademarks those claims are not worth a fart. So I wonder - why do people think WotC owns any trademarks related to D&D (beyond Dungeons & Dragons)?

 

[JohnRTroy]

Well, trademarks are more or less limited to what Wizards chooses to register to the US Patent and Trademark Office. They have a few terms trademarked, such as Dungeon Master, etc. But there are not many federally registered trademarks.

Technically, created creatures come under copyright, not trademark. The name Mind Flayer is not a trademark, but because that's descriptive and not part of the game, they can say you are violating their copyright of property if you write up a description of the mind flayer that is similar. If you wanted to have a similar styled creature, you could, but it can't be too similar and you shouldn't use the name Mind Flayer.

This all depends on how unique the creature or creation is. The more Wizards can prove that the existence started with its own writers, the more protection they have. Dragons are from loads of fiction, but though the Drow are named after other fictions, the "spider-goddess-worshiping elves who live underground with a matriarchal society" would be off limits. Vampires are from mythology and Stoker, but the Warforged are from Eberron's creators and thus property of Wizards.

You can get around it by making sure your creation is different enough. There are a lot of Superman Pastiches (Gladiator, Hyperion, Supreme, Mr. Majestic, The Sentry) but each is significantly different. It depends on your purpose. I would suggest that if the attempt is to simply "file off the serial numbers", it's a weak protection, but if you want to use the idea while putting your own spin on things, that's more likely to be protected.

ETA--I assume monsters in a world are copyright just like individual characters are. For instance, I remember reading Peanuts books and remember reading that Peanuts characters are copyright on the day they were created, Charlie Brown in 1950, Woodstock in 1971. While I don't know how it works for a gaming world, you can assume that monster description and names (when unique) are protected by copyright.

 

[Moon-Lancer]

Technically, created creatures come under copyright, not trademark. The name Mind Flayer is not a trademark, but because that's descriptive and not part of the game, they can say you are violating their copyright of property if you write up a description of the mind flayer that is similar.

Just like Cthulhu? wizards description and visual imagery of a mind flayer is right out of Cuthulhu. The image of mind flayers are not protected but the name might.

 

[Angellis_ater]

Yeah, Mind Flayers are also used by a number of other companies, with the same descriptions (such as Square/Enix, amongst others) and style, including using a Mind Blast, so when it comes to the flayers, I think WotC is screwed. Which is why they are using the name "Illithid" more and more.

 

[pbrink]

Well, trademarks are more or less limited to what Wizards chooses to register to the US Patent and Trademark Office. They have a few terms trademarked, such as Dungeon Master, etc. But there are not many federally registered trademarks.

WotC do have quite a few registered trademarks (in the US) but none of those has anything to do with the terms used in the game D&D. Which is no surprise, since the terms of a game cannot really be protected as trademarks. They are bound to be either generic or descriptive. What surprises me is that quite a lot of people seem to think that, even outside the scope of OGL/GSL, they aren't able to use terms such as "Armour Class" or "Hit Dice" or other terms related to the rules of D&D (or other RPG:s) in their own publications.

Technically, created creatures come under copyright, not trademark. The name Mind Flayer is not a trademark, but because that's descriptive and not part of the game, they can say you are violating their copyright of property if you write up a description of the mind flayer that is similar. If you wanted to have a similar styled creature, you could, but it can't be too similar and you shouldn't use the name Mind Flayer.

This all depends on how unique the creature or creation is. The more Wizards can prove that the existence started with its own writers, the more protection they have. Dragons are from loads of fiction, but though the Drow are named after other fictions, the "spider-goddess-worshiping elves who live underground with a matriarchal society" would be off limits. Vampires are from mythology and Stoker, but the Warforged are from Eberron's creators and thus property of Wizards.

This is a highly exaggerated claim IMHO. The concept of "spider-goddess-worshiping elves who live underground with a matriarchal society" lacks copyright protection. The expression of that concept, as published by WotC, is copyright protected, but anyone can write their own version. Whether literary characters are protected, as such, is not settled yet. In Germany, for example, such claims have been rejected.

I must say that a lot of the discussions on this particular board (OGF/4eGSL-L) strikes me as rather odd at times. All IPR are first and foremost designed to maximize the interest of society as a whole. We offer copyrights and trademark rights because we want authors to create and be able to live of their creations and we want consumers to be able to accurately identify the source of goods and services. We don't need companies that tries to build fences around ideas, concepts, terms and methods, nor do we have any reason to accept that companies try to monopolize markets, claiming "ownership" over "their" consumers and tries to stop other companies from doing fair and free business.

The RPG market is quite interesting in this perspective. It's an example of a market where consumers can effectively "compete" with the producers. I've seen fan-publications available for free on the net that outshines commercial products by miles. It's also a market where, I'm sad to say, companies makes wildly unfounded claims about their own rights and gets into conflicts with their own consumers over IPR:s. The producers of Palladium is a good example .

From a consumer perspective I would think that it would be much more constructive to discuss what we can do with the contents of RPG:s and how to find arguments that knocks down useless (from the POW of the rest of society) assertions of IPR:s.

 

[JohnRTroy]

This is a highly exaggerated claim IMHO. The concept of "spider-goddess-worshiping elves who live underground with a matriarchal society" lacks copyright protection. The expression of that concept, as published by WotC, is copyright protected, but anyone can write their own version.

Ideas can't be copyright, yes, but the combination of several features of ideas is protected enough that you would be sued for copying things.

Put it this way, the Mind Flayer example is a good one. While the characters were inspired by other creations, it was made unique in D&D. Now, if you wanted to create a mind-flayer in another game, it might work, but you should work your butt off to make it a LOT different, not just a little. Drow is an old term for elf. If your dark elves live underground, that's a little closer. If they worship a spider-goddess, have noble houses, are "chaotic evil"--the closer it seems to products written by TSR and WoTC, the worse protection you would have.

Think of it this way--if it would fail a plagiarism test if you were writing a novel instead of a game supplement, that's the line you don't want to cross. I can have a comic strip with an intelligent dog but if I start having him sleep on the top of a doghouse and imagine him being a veteran of World War I I'm sure the Schulz estate and United Features Syndicate would send me a warning.

TSR got in trouble in the beginning and had to make sure they didn't use the terms Barlog, Hobbit, or Ent.

We don't need companies that tries to build fences around ideas, concepts, terms and methods, nor do we have any reason to accept that companies try to monopolize markets, claiming "ownership" over "their" consumers and tries to stop other companies from doing fair and free business.

I think it's a question of whether or not you are ripping off another's creation. Basically, you should be creating something that has your own theme. Unless it's really licensed, released under the public domain or creative commons, etc, you don't want to rip off other's work--I'm not speaking from a legal perspective, but as a creative type who would not want to just copy other's work.

I might want to have clockwork creations in a campaign setting, but I wouldn't try to copy the Warforged wholesale, and I would try to put my own spin on things to make sure it is different.

This is also why I think WoTC have done things like make their halflings more like Kender without the quirks and work on making their creations more distinctive. They don't want to be accused of "ripping off" Tolkien, not just from a legal perspective, but they want their stuff to be more unique.

And this is also why gamers might want to create different terms. Why should every game be like D&D and have AC and hp and other terms. It might simply be a case of creators not wanting to use common (or overused) terminology.

 

[pbrink]

Think of it this way--if it would fail a plagiarism test if you were writing a novel instead of a game supplement, that's the line you don't want to cross.

Ah, but plagiarism is not the same thing as a derivative work. Or to put it differently, a work may seem like a plagiarism without even being a derivative work. Plagiarism is when you "borrow" someone else's style of expressing himself and his ideas, but neither of those are protected by copyright law.

And here I will get a bit esoteric and probably a bit OT for this board, but since questions like this intrigues me... and they do have a bit of relevance to OGL/GSL.

There's a trap here, a logical error that I've even seen courts do, and that is to mix up the underlying idea with it's expression and assume that if work B is an expression of idea A and one an only learn of A and it's properties through B (that is B is the only known expression of A) then if someone expresses the idea A in the new work C, C must then be a derivative work of B. Not true. You are free to derive from A as much as you want since A is just an idea, a concept. If A can only be studied through B, then by necessity some parts of B must also be merged with A and therefore lack copyright protection. In particular the facts about A, even though they may be fictional, lacks copyright protection.

Obviously we have now entered the realm of legal science and of course the solution to the problem at hand will be solved differently in different nations.

The point I'm trying to make is that there is no reason to accept over exaggerated claims of copyright. The case law is not so firm that one might think, fans in particular ought not feel restrained when creating and publishing their spin-offs of ideas and themes found in RPG:s.

I realise that this all sounds a bit idealistic and that in the end people make economic assessments of the risks involved and stay well out of the way of aggressive litigators. But that also means that we accept abuse of the legal system and it's exactly that kind of abuse that has created the file sharing mind set.

I can have a comic strip with an intelligent dog but if I start having him sleep on the top of a doghouse and imagine him being a veteran of World War I I'm sure the Schulz estate and United Features Syndicate would send me a warning.

Possibly but, from a theoretical and moral point of view, they are wrong. You are, and should be free to create your own version of a WW1 veteran dog sleeping on the top of a dog house.

I think it's a question of whether or not you are ripping off another's creation. Basically, you should be creating something that has your own theme. Unless it's really licensed, released under the public domain or creative commons, etc, you don't want to rip off other's work--I'm not speaking from a legal perspective, but as a creative type who would not want to just copy other's work.

We all stand on the shoulders off giants, no one is free from influences from the past and present. Creation is, really, a matter of mixing and re-mixing. Copyright law is not designed to prevent this re-mixing. While I can understand how you feel about this, from a legislative point of view, it's perfectly all right if someone rewrote D&D in new words and started to compete with WotC over the customers in the D&D market. It's OK.

As a creator I would probably be a bit mad if someone exploited my ideas but if someone else could do my thing better than me - why shouldn't they be allowed to try and see how far they could go?

 

[Treebore]

WOTC very clearly declares their Trademark ownership on the first page of every one of their books. In that small print at the bottom of the page.

As for copyright law, I have been reading it a lot lately. This bit in section 102 of article 17 is pretty darn interesting:

"(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

Edit: This is US law. WOTC claims protection with the US as its place of publishing origin with regards to articles of international copyright law.

 

[pbrink]

WOTC very clearly declares their Trademark ownership on the first page of every one of their books. In that small print at the bottom of the page.

Indeed they do. The claim that: "All Wizards characters, character names, and the distinctive likenesses thereof are trademarks owned by Wizards of the Coast, Inc.".

Does such a statement has any legal value? Can you just claim ownership of a mark? No you can't. To be able to assert ownership of a mark you must use the mark as a mark. You must also use the mark in commerce. The meaning of "use" in this context is quite narrow. In the US the concept is defined in § 1127 of the U.S. Trademark Act.

The term “use in commerce” means the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark. For purposes of this chapter, a mark shall be deemed to be in use in commerce—
(1) on goods when—
(A) it is placed in any manner on the goods or their containers or the displays associated therewith or on the tags or labels affixed thereto, or if the nature of the goods makes such placement impracticable, then on documents associated with the goods or their sale, and
(B) the goods are sold or transported in commerce, and
(2) on services when it is used or displayed in the sale or advertising of services and the services are rendered in commerce, or the services are rendered in more than one State or in the United States and a foreign country and the person rendering the services is engaged in commerce in connection with the services.

Which is further refined by the language used to define "trademark":

The term “trademark” includes any word, name, symbol, or device, or any combination thereof—
(1) used by a person, or
(2) which a person has a bona fide intention to use in commerce and applies to register on the principal register established by this chapter,
to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.

All of this boils down to a requirement: WotC must use whatever they claim as a trademark as a mark with the intention that the mark will become a symbol for a link between their product and themselves. And from this usage it must be obvious to customers and competitors that the word, term or symbol is a mark. For example: you can claim that a word in a slogan is a mark by itself if the word was not set apart from the other words. Just using a term in a narrative sense is therefore not in any way sufficient. Which, btw, is the reason why game mechanic terms never becomes trademarks - regardless of how suggestive they may be. Those terms are simply never used as trademarks.

Edit: This is US law. WOTC claims protection with the US as its place of publishing origin with regards to articles of international copyright law.

Well, all IPR:s (copyrights, trademarks, patents, designs) are strictly national. They are only valid in the nation where they are registered or in the case of copyrights where they were first published. When a publisher states that his publication is published in the US that statement has no choice of law effect. If a shop in Paris where to sell unauthorized copies of D&D then that action would fall under French jurisdiction.

 

[JohnRTroy]

There's a trap here, a logical error that I've even seen courts do, and that is to mix up the underlying idea with it's expression and assume that if work B is an expression of idea A and one an only learn of A and it's properties through B (that is B is the only known expression of A) then if someone expresses the idea A in the new work C, C must then be a derivative work of B. Not true. You are free to derive from A as much as you want since A is just an idea, a concept. If A can only be studied through B, then by necessity some parts of B must also be merged with A and therefore lack copyright protection. In particular the facts about A, even though they may be fictional, lacks copyright protection.

But it depends how closely one does it. The courts decide based on these cases if one is too similar to the other. If you took your beliefs to the ultimate you could make a Harry Potter book by changing the character's name to "Henry", making a couple of plot changes but still ripping off the first novel. That would fail the test.

http://en.wikipedia.org/wiki/Copyright_infringement

The term "striking similarity" is key. (And yes, I know this is the US terms).

As a creator I would probably be a bit mad if someone exploited my ideas but if someone else could do my thing better than me - why shouldn't they be allowed to try and see how far they could go?

It depends on your intent. If all you're trying to do is publish D&D "with the serial numbers filed off", that probably wouldn't be defendable. If you're really trying to put your own spin on it, you'd create something different. As an author in general, you probably want to avoid making it look like you plagiarize simply because a lot of people don't want to read rip-offs.

I think you can create a D&D clone, and use what's become common termonology, but realistically, Drow, Warforged, etc, are the true creations of WoTC and thus you should avoid copying those items. Games are not protected by copyright, but the so-called "fluff", the background of some of the created creatures, characters, settings, etc., would be protected.