What's All This About Third Party 5E Stuff?

I'm mainly writing this because every time a 5E product from someone other than WotC is announced, someone immediately asks "Huh? How can they do that?", and the entire thread gets derailed into an identical discussion on IP law rather than discussion of the product itself. Hopefully, this short article can serve as a convenient link, and those identical conversations can be avoided, and the actual products discussed. What follows is a brief - and shallow - coverage of third party products for D&D 5th Edition, and hopefully a way to help with that "How can X release products for 5E?" conversation which has cropped up daily for over a year now!

There are dozens of companies providing 5E compatible products now. From larger outfits like Necromancer Games, Goodman Games, and Kobold Press, to a myriad of smaller PDF publishers, products are coming out of the woodwork. MerricB lists well over 200 adventures since mid-2014 (at the time of my writing this article) from over 40 publishers. These are not the official contracted books from WotC (Tyranny of Dragons, Rage of Demons, etc.), these are independent third party products.

It's not just adventures, of course. Also available are things like:

And there's more! This isn't an exhaustive list, but it should give you an idea. Companies big and small are doing this, and have been for ages now.

So, you ask, how are they doing this? Do they have a special license? Nope. Well, yes. An existing license, but not a special one. Nobody really needs a special license (although they could maybe use one to allow them to use the D&D logo itself).

This is not legal advice and I am not your lawyer


What follows is a very simplistic introduction to the subject designed to just give an overview of the concepts being used. The devil is, of course, in the details, which you won't find here - there are certainly nuances to this subject, but the goal is not to provide publishing advice but to simply answer the "How are they able to do this?" question on a basic level. In other words, what's below is not sufficient information to take away and start publishing with; it's only a cursory conversational overview.

What's happening is that they are using an old license - the Open Gaming License. Back when D&D 3rd Edition (3E) launched, it was accompanied by a license which opened up the system for third parties. And third parties flocked to it and released thousands of 3E compatible products.

The thing with 5E is that most of the terms it uses existed in 3E (that's why Pathfinder exists). So you can use the existing license to access those terms, even if they work a bit differently in 5E. More explanation would require a course in IP law, but the short version is that if you know what you're doing, you can produce a book compatible with D&D by simply using existing licenses. As long as you follow the license, you'll be OK (but you should consult an IP lawyer before risking any funds).

For example - the terms "armor class" and "hit points" and such have long been made explicitly available. You can use them as much as you like, as long as you do what the OGL says (and that's a really simple license, deliberately so - it's written to be easy to use and understand).

There are terms you can't use. If you don't know what you can definitely use, it's easy to find out. There's a thing called the System Reference Document (SRD). It contains all the stuff you can safely use without challenge (that doesn't mean there isn't other stuff you can use, but that stuff is very safe to use). The answer to "Can I use X?" is simply "Is it in the SRD?" That bit you can do yourself, because it just involves looking at a thing. You can't copy trade dress (appearance, design, layout) either, which is why you see variant stat block layouts. And if you're using the OGL, you agree not to reference trademarks (including the name of the game or its books) without separate permission from the owner, which is why you see products for "Fifth Edition" or "5E".

(Technically, you can use many other game terms and words not in the SRD as long as they haven't been declared to be something called "product identity", but that's a level of detail I don't want to get into here. There is a ton of other stuff you can use not in the SRD, which has been created by third party publishers over the last 16 years, including Pathfinder material, and even material from games like Fate or WOIN. But I'm keeping this simple.)

Why?
WotC's Ryan Dancey was a supporter of a theory called "network externalities". Basically he - and WotC - held the opinion that a well supported game was a successful game, and that third parties could support it and drive sales of the core product. There was a secondary motivating factor - preserving the game. D&D (even if not under that brand name) would continue to exist forever, even in the face of what Dancey at the time referred to as "capricious actions" by the IP owner, whoever that may one day be. From that perspective, they were successful - the Pathfinder RPG is evidence of that.D&D - or some form of it - is here to stay.

So why isn't WotC shutting these down?
I keep hearing you cry. I do. I keep hearing you cry that! Because WotC's IP rights are not being infringed upon; companies are doing what WotC has given them permission - in the form of the OGL - to do. All that is being used is material that the public has deliberately been given permission to use. The OGL is irrevocable. As long as people follow the rules and just use the IP that WotC has clearly outlined as permanently available, there's nothing to shut down. This, of course, does not include the brand name or any logos (i.e. the valuable stuff which makes the big monies), or art assets, or any text not in the SRD, but it does include every word in the SRD. And the content of the SRD easily contains all the terms, phrases, and words you'd need to make 5E-compatible products, as long as you're careful.

Do I need the OGL? Of course, there's another approach. You don't need the OGL to make a compatible product, but it makes things easier. Hundreds of third-party iPhone cases do that - you can claim compatibility with a brand, but make sure you get good legal advice before you do so. The OGL makes it super-easy, super-simple, and super-clear (which is why its called a "safe harbor"); outside the OGL, you're relying on regular IP law. So you can do it without the OGL, but the OGL makes it much easier.

Hasn't WotC shut a bunch of stuff down in the last year? Yup. They've shut down online character generators, mobile apps, 3D printing templates, and websites. Many of them came back, though, once they had a dialog with WotC. Generally speaking, if you're copying and pasting the D&D 5E rules, you're committing an IP violation. There is a difference between creating compatible content, and redistributing someone else's content yourself. Even if those rules are free to obtain, they're not free to distribute and there have been spell cards and character generators shut down for those reasons. WotC has allowed some creators to copy their text - usually the free Basic Rules or some portion of them - under certain conditions; but it should be clear that this is permission, not something everyone has the right to do.

I can copy and paste the free stuff. Unfortunately, that's not how it works. The Basic Rules are "free" as in "you have our permission play this game for free", not "you can take this game and freely distribute it yourself". The price of something - whether it's $0, $10, $1,000,000 - has nothing to do with it, and neither does the price you distribute it for, whether that is $0 or $1,000.

So is a license coming?


At this point, I don't know. In November 2014, WotC's Chris Perkins said "It is our intention to bring back the OGL. We just don't know when we are going to do it yet." In October 2015, WotC's Mike Mearls said "Still no news now, but there will be news."

If a license does come, there's no way to know what form it will take, but it might make a few more verbiage assets available, or provide access to a logo or trademark. It might resemble the OGL, or it might be something completely different.

So, next time someone asks about this, simply link to this page. It'll save some repetition and allow conversations to avoid derailment!

[Edit: clarified the sentence on allowable terms].

<em>[video=youtube;ZXLBBp3YDro]https://www.youtube.com/watch?v=ZXLBBp3YDro[/video]

 
Russ Morrissey

Comments

smiteworks

Explorer
Great post. This should hopefully clear it up for a lot of people. Anyone attempting to create something in this space should make absolutely certain that they know all the rules forwards and backwards before they even think about starting something.
 

jamesjhaeck

Visitor
A great article, especially because it (hopefully) puts to rest a conversation that's been rehashed so many times now.
 

DLIMedia

Visitor
A lot of items being published continue to use the "advantage"/"disadvantage" wording simply because it's fairly generic and doesn't explicitly state what it means. Having "advantage" on a die roll could, theoretically, mean anything and is up to interpretation.

Basically, the guidelines I use:

1) Do not use any creatures that are explicitly forbidden due to them being "product identity". These monsters are listed in the 4E GSL: Balhannoth, Beholder, Carrion Crawler, Displacer Beast, Gauth, Githyanki, Githzerai, Kuo-Toa, Mind Flayer, Illithid, Slaad, Umber Hulk and Yuan-Ti. Put simply, do not use any of these creatures in any way, shape or form. If you do, god help you.

A better guideline for this is: if you've seen the monster on the cover of any recent core manual - especially the Monster Manual - don't use it.

2) Do not reference anything that's part of the D&D world that has a proper name. Do not even mention campaign settings (Forgotten Realms, Dark Sun, Eberron, etc.), geographic locations (Neverwinter, Greyhawk, Athas, etc.), NPCs (Drizzt, Elminster, Mordenkainen, etc.), deities (Corellon, Tiamat, Lolth, etc.), named monsters (Acererak, Iggwilv, Orcus, etc.) and so on.

Now, some argue "you can use Tiamat because that's a Mesopotamian deity"... Well, technically that's true, but it's not the same creature and everybody knows that. The Mesopotamian goddess and the five-headed dragon are not the same creature, and if you include it in anything that's a D&D product we all know which of the two you really mean. That being said, I highly recommend you avoid using named creatures of this nature, even if their names come from origins outside of D&D.

3) Do not use any WotC imagery, such as logos or branding. This should go without saying, and as someone who has received a C&D because I stupidly used the Gamma World logo, trust me on that.


Furthermore, if you really want to use the OGL:

1) Do not mention "D&D" at all. Say "5th Edition" and leave it at that; your readers should be smart enough to know you don't mean Shadowrun. :p

2) Do not reference the core manuals at all. You cannot say "cone of cold (see Player's Handbook, page XXX)"... Just leave it as "cone of cold".

3) I highly recommend that you create mostly new creatures, but if you use existing creatures simply present their names and do not mention their source. For example, leave it as a "gelatinous cube" but don't mention that it comes from either the Monster Manual or the Basic Rules.

4) Be very careful which spells you mention. Spells with proper names in them, such as Mordenkainen's Sword, may or may not be safe for reasons I've described above.

5) Do not make attempts to explain rules. Reference them sure, but don't explain. Say "make a Dexterity saving throw", but don't elaborate on what that means. Furthermore, do not attempt to change or amend any rules.

6) For god's sake, if you're going to publish using the OGL... ACTUALLY INCLUDE THE OGL IN THE BACK OF THE PRODUCT. I've seen several products released that say that are OGL-ed but don't actually include it. That's a catastrophic error.
 

S'mon

Legend
I'm not sure why you couldn't use the words Advantage/Disadvantage, they are not claimed as Product Identity or Trade Marks by WoTC as far as I know.

Paizo's 3e OGL products (eg Curse of the Crimson Throne, which I just finished running) did use references to WoTC books, of the kind "MM pg 27". Note that they did not use 'Monster Manual', which is a registered trade mark of WoTC. "See 5e MM pg 27" ought to be fine, no copyright, TM or OGL breach there.

You certainly can use words like Orcus and Tiamat, many 3pps do. I would recommend not using words made up by WoTC, even if they are not claimed by WotC as Product Identity. This is not itself a violation of the OGL, but regular copyright law applies - single words are never copyright protected (at least in UK, eg the Exxon case - I think USA is the same) so technically you would be ok, but if you use the word to represent a 'thing' WotC created/owns* (eg Lolth to represent the demon goddess created by Gygax) there is at least the possibility of copyright liability as a derivative work (US) or non-literal copying (UK), and the OGL won't necessarily protect you. You might get a C&D, and most likely won't want to spend money defending it, so best not to do it.
Likewise don't use "Mordenkainen's Sword" - you'll note that proper names like Mordenkainen
are not in the SRD.

*Technically in UK law you cannot 'own' - have copyright in - 'the concept of Lolth', only in the
literary, artistic etc works in which she appears, but US law is more liberal and it's an easy shorthand.

(I teach copyright law in the UK. I'm not a practicing lawyer, and am only generally familiar with
the US law.)
 
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Frylock

Explorer
The OGL doesn't license IP. By it's own terms it says it doesn't. Without saying so expressly, it licenses game rules over which WotC doesn't have the legal right to control. The OGL is not why people aren't getting sued; it's because WotC is in no legal position to stop what's been done under copyright and trademark law.

If you think the OGL is meaningful, you need to stop commenting on it as if you're an authority on the subject. You're perpetuating a terrible misconception that continues to harm the gaming community.
 

pedr

Explorer
The OGL doesn't license IP. By it's own terms it says it doesn't. Without saying so expressly, it licenses game rules over which WotC doesn't have the legal right to control. The OGL is not why people aren't getting sued; it's because WotC is in no legal position to stop what's been done under copyright and trademark law.

If you think the OGL is meaningful, you need to stop commenting on it as if you're an authority on the subject. You're perpetuating a terrible misconception that continues to harm the gaming community.
I don't understand this post. Surely the OGL provides a licence for publishers to use to license the copyright in text expressing game rules. There is copyright in that text, even if there isn't copyright in the underlying concept of the rules, and copying that text without a licence - for instance if you copy text which hasn't been licensed as open content, or if you use it outside the terms of the OGL - is infringement. Using that text within the terms of the OGL is permitted use. Which is, presumably, why companies which reprinted the D&D 3e SRD as a pocket player's handbook were not infringing and companies which incorporate the text of 5e spells into a product are.

Clearly there is less value to using the OGL for a game which hasn't had its core content released as Open Content - but the similarities between 5e and 3.5 do mean that using the OGL means that you close down the scope for WotC to argue that your use of a particular monster, or even a particular rules expression, is an infringing close copy of the text they have copyright over, so it continues to act as a safe harbour, which is what the OGL was designed to do.

If you don't accept the OGL, and are careful about how you work around the expression of rules, it is possible to create products which are designed to work with the 5e rules set - and which can even say that, due to trademark law, when the OGL products can't due to the agreement not to in the OGL itself - but surely that's a riskier proposition as you are reliant on the interpretation and operation of general copyright laws (in various jurisdictions, potentially) rather than being able to point to an agreement between you and a copyright owner which at least arguably covers the use you are making of their content.
 
Maybe there's a license in the works already?

Maybe there's a license in the works already?

From the Tome of Beasts Kickstarter:

Michael Natale on October 5
This is great, I was at the GenCon panel where you discussed the possibility of doing a book like this. Happy to plunk a few coppers down on the barrelhead for this. Two questions: I'm guessing the lack of an OGL just got too much to keep waiting and you decided to plow on...yes? Secondly, is there any risk that WotC might put the Kibosh on this project with a C&D? Just curious how you reached this decision and if this is a gamble for us backers that the buzzkills at Wizards might pee in our soup.

Creator Kobold Press on October 5
Michael Natale, I can't say very much (it's under wraps), but I think there's essentially zero chance of this project getting killed by WotC. I suspect they're (unofficially) happy to see it.
 

Evenglare

Adventurer
If people can already make all of this stuff with current OGL, why do people want a 5e one anyway? Seems like a solution to a problem that doesn't exist.
 
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S'mon

Legend
The OGL doesn't license IP. By it's own terms it says it doesn't. Without saying so expressly, it licenses game rules over which WotC doesn't have the legal right to control. The OGL is not why people aren't getting sued; it's because WotC is in no legal position to stop what's been done under copyright and trademark law.

If you think the OGL is meaningful, you need to stop commenting on it as if you're an authority on the subject. You're perpetuating a terrible misconception that continues to harm the gaming community.
It licenses use of the text of the d20 SRD - which is a copyright work. You should take your own advice!
 

Staffan

Adventurer
You certainly can use words like Orcus and Tiamat, many 3pps do.
Orcus is a bit of a special case, because of Necromancer Games' Tome of Horrors. This was a monster book released back in the 3.0 days, when Wizards were still enthusiastically supporting the OGL. They gave Necromancer Games permission to publish a book filled with the more odd-ball monsters from 1e and 2e, and release them under the OGL. This included a number of archfiends, such as Orcus.

So referring to Orcus, the Demon Prince of Undead, who lives in a bone palace in the Abyss and wields the Wand of Orcus, is OK because that is OGL. Referring to Orcus, who was once slain by the drow goddess Kiaransalee but lived on as the pseudo-divine Tenebrous, and eventually usurped the modron position of Primus in order to facilitate his resurrection, is not.
 

DLIMedia

Visitor
If people can already make all of this stuff why do people wants a 5e one anyway? Seems like a solution to a problem that doesn't exist.
I can't speak for everyone, but to me personally being able to brand my product as an "officially licensed" product and to use WotC/DnD logos on it means a lot to me. That's what the 4E GSL gave us: the ability to put the D&D logo on the cover. That may not mean a whole lot to most people, but it's very important to me in terms of marketing.

It also means that WotC openly approves of what you do, provided you meet their guidelines. Right now we just don't know how WotC feels, and they could in theory release a license that would make everything that's been released so far subject to scrutiny or cease and desist orders. Granted, it would be stupid of them to do that because it would destroy their fanbase, but right now they're within their rights to do that.
 

Morrus

Well, that was fun
Staff member
I can't speak for everyone, but to me personally being able to brand my product as an "officially licensed" product and to use WotC/DnD logos on it means a lot to me.
I agree. Being able to put the D&D logo on my stuff would be very valuable to me.
 

Morrus

Well, that was fun
Staff member
If people can already make all of this stuff why do people wants a 5e one anyway? Seems like a solution to a problem that doesn't exist.
Safe-harbor arrangements are very attractive for a number of reasons. They can grant usage of certain assets (logos, trademarks); they can minimize risk of challenge or lawsuit; they can, if managed well, inspire customer confidence (or vice versa, of course); they reduce the overheads of legal services. There's a whole bunch of reasons why folks would take that route.

Plus it's a tiny industry. People want to get along.
 
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S'mon

Legend
It also means that WotC openly approves of what you do, provided you meet their guidelines. Right now we just don't know how WotC feels, and they could in theory release a license that would make everything that's been released so far subject to scrutiny or cease and desist orders. Granted, it would be stupid of them to do that because it would destroy their fanbase, but right now they're within their rights to do that.
WoTC have no legal grounds to stop the publication of OGL-compliant material. And if they
thought the OGL was being misused they have to send a warning letter and say what the
violation is, allowing the publisher to rectify. The OGL does not depend on WotC sufferance.
It is a powerful safe harbour, that is why it's so popular.
 

Morrus

Well, that was fun
Staff member
Yeah, you can't release a new license and force people to agree to it. A license only affects you if you choose to be party to it.
 

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