D&D General What Actually Is Copyright Protected In The SRD?

[see]

The big problem with this sort of approach is that copyright doesn't work on an atomic basis, but a holistic one, particularly when one is dealing with the question as to what counts as a "derivative work".

This isn't the 1850s, where a translation of Uncle Tom's Cabin into German didn't violate Stowe's copyright because, in the old cliches, "all translation is paraphrase" and "copyright protects expression, not ideas".

 

[LordEntrails]

I'm not sure this is a very good time or place to try to figure these types of things out. i.e. if you are serious, you probably need to hire an actual lawyer. And second, with everything going on around the possibility of an OGL 1.1, probably the best advice is to wait until it is actually published and a common legal understanding of it can be agreed upon. Or it can be determined via court cases.

 

[mamba]

For ironclad sure there's a dozen or so specific monsters that are at least name-protected (Bulette, Beholder, and Yuan-Ti are three). Some you could easily enough reinvent - I mean, part-human part-reptile creatures is a trope that's been around for ages so refluffing and renaming Yuan-Ti should be trivially easy to do - but others (e.g. Beholder) would be much harder to pull off without it being an obvious ripoff of the original.

yet there are beholder-likes out there. You can make them sufficiently distinct (or you can decide you do not really need them anyway)

 

[Dreamscape]

Are you asking about trademark protection rather than copyright? Because of that there is remarkably little, but it would take some time and effort to be sure. But if you are writing your own game from scratch without deliberately lifting mechanics or terminology from the SRD or their books it would be quite hard for you to accidentally violate WotC's copyright. Are you trying to create a D&D-alike game or something completely different?

 

[mamba]

I'm not sure this is a very good time or place to try to figure these types of things out. i.e. if you are serious, you probably need to hire an actual lawyer. And second, with everything going on around the possibility of an OGL 1.1, probably the best advice is to wait until it is actually published and a common legal understanding of it can be agreed upon. Or it can be determined via court cases.

I agree on the lawyer part, but waiting for the OGL is pointless, the whole idea is to not have to rely on it

 

[Benjamin Olson]

Ultimately there is a huge amount of the rules content of the SRD that only a court could decide on WotC's rights to stop you from using. You can get a lawyer to research and opine on the merits, but really the most meaningful advice a lawyer is likely to give you is not about what they think a court would probably decide (as that is ultimately pretty hard to predict for the majority of SRD material), but what is likely to make WotC think you are worth noticing, trying to bully with demand letters, or even making the nontrivial investment of taking to court. Games are created everyday with elements that D&D's rightsholders probably had a colorable claim to sue over (at some point in the history of the game at least), but even TSR in their most sue-happy days they generally didn't sue over use of similar mechanics (they did sue to try to stop Gygax's Dangerous Journeys and made many ludicrously aggressive claims in that action to more or less have a patent on ability scores and the like, but the reason that was targeted was fundamentally because they felt the Gygax name would cause brand confusion and because they had a vendetta with the man).

I would say that at this point ability scores, even the specific 6 D&D ones, have been used and abused in too many contexts for WotC to realistically try to pick on you specifically over their fairly dubious copyright to six English words. The same applies to the specific classes of 5e (though not the specific mechanics thereof), even if you were to use the very same 12 (which it sounds like you don't intend to). This is not saying they wouldn't bring up these similarities if they were trying to shut you down for things they have firmer grounds for, just that amongst all the panoply of games and media using these D&D concepts (along with a few other things that have gained broader cultural impact like, say, the alignment system), singling out you for a lawsuit on the basis of things they have a pretty questionable case on makes very little sense.

The specific 5e action economy, however, is pretty unique to that specific D&D system and has not really filtered out into general use. A similar system with different names is almost certainly fine because on a basic level it is pretty generic to the limited number of ways that turned-based tabletop gaming could simulate combat and not very different from some other systems, but adopting their system wholesale is asking for trouble. If a game that was also using the ability scores and some of the same classes, also used literally the same action economy that is the sort of thing WotC is likely to identify as an infringement they need to protect against. And honestly, I like the 5e system well enough for the most part but I'm betting you could do better having years of experience with it and not being beholden to maintaining it like the current WotC design team.

Spells are troublesome because some are clearly very generic (Invisibility), some were perhaps less generic when D&D adopted them, but at this point you would hardly have a game involving magic without (Fireball) some that are fairly fanciful and specific (Magnificent Mansion, even if it doesn't belong to Mordenkainen), and one that is pretty specific but that they stole from Jack Vance (Prismatic Spray, though they diminished the theft somewhat by watering it down from his superior "Excellent Prismatic Spray"). That analysis is really more on the trademark merits than the copyright merits, but the two areas of intellectual property law blend together when you get into a situation like this.

Ultimately I would err on the side of using those game elements where, upon giving it serious thought you honestly can't think of anything that suits your needs better, and making the rest up yourself. But copying the ability score system outright (if you like it) might be worth the (probably) minimal risk, since it makes your game substantially more compatible with the vast number of existing D&D and derivative modules.

 

[UngainlyTitan]

I agree on the lawyer part, but waiting for the OGL is pointless, the whole idea is to not have to rely on it

This I think is a mistake. All potential licences are just legal documents. It does not really matter as to the legal consensus until the matter is tested in court.
The legal consensus was strong around the OGL, or at least as strong as it could possibly get, and but unless some one tries to test it court it does not matter.
The same applies to another licence, you make your call and test it in court or you back down. There is no cover unless it stands up in court.

 

[jgsugden]

If you're interested in this topic there are a few good Youtube videos on it out there if you hunt for them.

My views on the topic:

There are two relevant content groupings to worry about: A.) What IP WotC/Hasbro would be able to protect in court, and B.) What they'd sue over even if they were not so sure they could win because the nuisance of suing you might get them what they want.

In terms of what they could protect in court: This is unknown. Them granting licenses to others has meant that the IP covered by the grant hasn't been under contention. Without contention, you won't know the boundaries. There are some real solid limitations on what can be protected with IP laws, and what can't - and how they work in a given environment is something that will be worked out over time once there is contention.

In terms of what they might attempt to protect that they might not be able to successfully protect in court: There is a lot of nuisance IP law suits out there, but the bang has to be worth the buck. For WotC to actually take you to court and sue you the combination of the chance and benefit of winning has to overcome the chance and detriment of losing - and both have to be balanced against the status quo of doing nothing more than a cease and desist. Some of the biggest factors in determing what would make it worthwhile in their eyes are going to depend upon their own internal plans for the future. To that extent, trying to predict what they might go after is a fools errand.

In the end, they'll want people to give them their cut, but will not want to go to court over it. To that end, I think the compromise they'll find is that the OGL will have a revenue cap. If you exceed the cap, you pay. However, if you pay, you get perks including accress to additional IP from WotC to use, cross promotion by Wotc, access to selling your product within the official WotC VTT, etc...

The big risk for WotC is that there are enough people out there with a heavy stake in having an accessible RPG that they can use as a base to sell their products against. Someone will generate the next Pathfinder that cuts D&D off at the knees by giving a similar quality of game play with greater freedom to use by 3P. I can't imagine they'd take that risk given their current position.

 

[Clint_L]

If you're interested in this topic there are a few good Youtube videos on it out there if you hunt for them.

My views on the topic:

There are two relevant content groupings to worry about: A.) What IP WotC/Hasbro would be able to protect in court, and B.) What they'd sue over even if they were not so sure they could win because the nuisance of suing you might get them what they want.

In terms of what they could protect in court: This is unknown. Them granting licenses to others has meant that the IP covered by the grant hasn't been under contention. Without contention, you won't know the boundaries. There are some real solid limitations on what can be protected with IP laws, and what can't - and how they work in a given environment is something that will be worked out over time once there is contention.

In terms of what they might attempt to protect that they might not be able to successfully protect in court: There is a lot of nuisance IP law suits out there, but the bang has to be worth the buck. For WotC to actually take you to court and sue you the combination of the chance and benefit of winning has to overcome the chance and detriment of losing - and both have to be balanced against the status quo of doing nothing more than a cease and desist. Some of the biggest factors in determing what would make it worthwhile in their eyes are going to depend upon their own internal plans for the future. To that extent, trying to predict what they might go after is a fools errand.

In the end, they'll want people to give them their cut, but will not want to go to court over it. To that end, I think the compromise they'll find is that the OGL will have a revenue cap. If you exceed the cap, you pay. However, if you pay, you get perks including accress to additional IP from WotC to use, cross promotion by Wotc, access to selling your product within the official WotC VTT, etc...

The big risk for WotC is that there are enough people out there with a heavy stake in having an accessible RPG that they can use as a base to sell their products against. Someone will generate the next Pathfinder that cuts D&D off at the knees by giving a similar quality of game play with greater freedom to use by 3P. I can't imagine they'd take that risk given their current position.

I tend to concur. I think the carrot that WotC will offer is to basically encourage more folks to effectively license from them, in exchange for getting a lot more access. I think they know they are kind of stuck with some version of the OGL and don't really care about it for Etsy businesses and small kickstarters, but they want to bring the bigger players more into their fold.

 

[doctorbadwolf]

Six ability scores: Traveller has had them since 1977, and they are somewhat similar to D&D: Strength, Dexterity, Endurance, Intelligence, Education and Social Standing.

Come to think about it, the order listed is similar to the order in modern D&D, but not the order of D&D at the time. You could argue D&D copied Traveller.

Interesting!

D&D 1974

Basically if it's in an edition of D&D it might not be safe at least in expression.

The 6 ability bscores might be safe but +1 at 12/13, +2 at 14/15 etc might not be.

If the IGL goes away if it's in an edition of D&D it might bit be safe beyond basic names. Copying any specific mechanic or expression of it could be messy.

Playing it safe I wouldn't make it class based.

Yeah my existing game has “archetypes”, but they only impact starting stuff and RP stuff, with advancement being mostly about learning things and training to better yourself (ie gaining traits and improving skills).

Are you asking about trademark protection rather than copyright? Because of that there is remarkably little, but it would take some time and effort to be sure. But if you are writing your own game from scratch without deliberately lifting mechanics or terminology from the SRD or their books it would be quite hard for you to accidentally violate WotC's copyright. Are you trying to create a D&D-alike game or something completely different?

Both. Well, completely different currently, with plans to potentially convert my D&D homebrew into a new system that feels like D&D .

Ultimately there is a huge amount of the rules content of the SRD that only a court could decide on WotC's rights to stop you from using. You can get a lawyer to research and opine on the merits, but really the most meaningful advice a lawyer is likely to give you is not about what they think a court would probably decide (as that is ultimately pretty hard to predict for the majority of SRD material), but what is likely to make WotC think you are worth noticing, trying to bully with demand letters, or even making the nontrivial investment of taking to court. Games are created everyday with elements that D&D's rightsholders probably had a colorable claim to sue over (at some point in the history of the game at least), but even TSR in their most sue-happy days they generally didn't sue over use of similar mechanics (they did sue to try to stop Gygax's Dangerous Journeys and made many ludicrously aggressive claims in that action to more or less have a patent on ability scores and the like, but the reason that was targeted was fundamentally because they felt the Gygax name would cause brand confusion and because they had a vendetta with the man).

I would say that at this point ability scores, even the specific 6 D&D ones, have been used and abused in too many contexts for WotC to realistically try to pick on you specifically over their fairly dubious copyright to six English words. The same applies to the specific classes of 5e (though not the specific mechanics thereof), even if you were to use the very same 12 (which it sounds like you don't intend to).

Yeah attributes in my game are pools like in Cypher (I had never seen a game do it until I finally looked into making characters for the Old Gods playtest. I’m always a little sad when an idea I thought was fresh ends up someone else has been doing it for years), and the archetypes are quite different. The Druid is a scholar, the Warlock a battlemage with forbidden/dangerous knowledge, the “rogue” design space is split between athlete and assassin, and those are the only “D&D class names” I can think of in the system.

This is not saying they wouldn't bring up these similarities if they were trying to shut you down for things they have firmer grounds for, just that amongst all the panoply of games and media using these D&D concepts (along with a few other things that have gained broader cultural impact like, say, the alignment system), singling out you for a lawsuit on the basis of things they have a pretty questionable case on makes very little sense.

The specific 5e action economy, however, is pretty unique to that specific D&D system and has not really filtered out into general use. A similar system with different names is almost certainly fine because on a basic level it is pretty generic to the limited number of ways that turned-based tabletop gaming could simulate combat and not very different from some other systems, but adopting their system wholesale is asking for trouble. If a game that was also using the ability scores and some of the same classes, also used literally the same action economy that is the sort of thing WotC is likely to identify as an infringement they need to protect against. And honestly, I like the 5e system well enough for the most part but I'm betting you could do better having years of experience with it and not being beholden to maintaining it like the current WotC design team.

Spells are troublesome because some are clearly very generic (Invisibility), some were perhaps less generic when D&D adopted them, but at this point you would hardly have a game involving magic without (Fireball) some that are fairly fanciful and specific (Magnificent Mansion, even if it doesn't belong to Mordenkainen), and one that is pretty specific but that they stole from Jack Vance (Prismatic Spray, though they diminished the theft somewhat by watering it down from his superior "Excellent Prismatic Spray"). That analysis is really more on the trademark merits than the copyright merits, but the two areas of intellectual property law blend together when you get into a situation like this.

Ultimately I would err on the side of using those game elements where, upon giving it serious thought you honestly can't think of anything that suits your needs better, and making the rest up yourself. But copying the ability score system outright (if you like it) might be worth the (probably) minimal risk, since it makes your game substantially more compatible with the vast number of existing D&D and derivative modules.

Yeah for a derivative game, I’d probably simplify the action economy to actions and “tricks”, which can be done alongside actions or in response to them, and you have a limit per day or something not per round. Movement would be fairly narrative, with zones rather than precise measurements, I think.

For my game that is more different from D&D, I may still renamed quick actions to “tricks” or something.