WotC Unveils Draft of New Open Gaming License

As promised earlier this week, WotC has posted the draft OGL v.1.2 license for the community to see.

A survey will be going live tomorrow for feedback.

Starting the OGL ‘Playtest’

In this article, you can review a draft of OGL 1.2, submit feedback via survey, and learn about a Creative Commons license that puts D&D's core mech...

www.dndbeyond.com

The current iteration contains clauses which prohibit offensive content, applies only to TTRPG books and PDFs, no right of ownership going to WotC, and an optional creator content badge for your products.

One important element, the ability for WotC to change the license at-will has also been addressed, allowing the only two specific changes they can make -- how you cite WotC in your work, and contact details.

This license will be irrevocable.

The OGL v1.0a is still being 'de-authorized'.

 

[Haplo781]

IANAL, and hopefully one of the people posting here who are lawyers will chime in and clarify, but it should be noted there are big differences between copyrights and trademarks. Trademarks can be lost if you don't defend them; copyrights can't. Also, copyrights are automatic (though there are benefits to officially registering them); trademarks have to be specifically registered, and each name, brand, or logo has to be trademarked separately. As far as I know, WotC never tried to trademark specific monster names like "gnoll" or "treant", but if they did, their use in EverQuest certainly could cause them problems. However, that would have no effect on their copyright—you don't lose copyrights by not defending them.

AFAIK, names aren't protectable by copyright.

 

[Jerik]

AFAIK, names aren't protectable by copyright.

No, they're not, but I don't think that necessarily allows you to just use names from a copyrighted work willy-nilly. I'd think a case could still be made that you're creating a derivative work.

For instance, according to a search I just did on the U.S. Patent and Trademark Office website, the name "Anakin Skywalker" is currently trademarked for use in "men's, women's, and children's clothing and athletic wear" and "toys, games, and playthings", but not, oddly, for use in books or movies. (Another difference between trademarks and copyrights is that you have to register trademarks for specific purposes; they're not general purpose like copyrights. "Anakin Skywalker" was previously trademarked for use in books, but that trademark expired in 2009; apparently now that there are no current movies being made or books being published about the character it was decided it wasn't worth paying the fee to renew the trademark.) Does that mean you could write a book about a space wizard named Anakin Skywalker (and maybe also use the names of other Star Wars characters who aren't currently trademarked for use in books), as long as you didn't explicitly use any trademarked Star Wars IP? Almost certainly not; Disney would take you to court and claim your book was a derivative work of Star Wars, and unless you could somehow make a very convincing case that you had never heard of Star Wars and coincidentally came up with the name on your own, you'd likely lose.

Are names like "gnoll" and "treant" distinctive enough that Wizards of the Coast could make a case that any other game using them was a derivative work? Ehhhh... maybe not, but I doubt it would be so clear-cut that it couldn't at least go to court.

(Again, though, IANAL, so take all this for what it's worth.)

 

[Haplo781]

No, they're not, but I don't think that necessarily allows you to just use names from a copyrighted work willy-nilly. I'd think a case could still be made that you're creating a derivative work.

For instance, according to a search I just did on the U.S. Patent and Trademark Office website, the name "Anakin Skywalker" is currently trademarked for use in "men's, women's, and children's clothing and athletic wear" and "toys, games, and playthings", but not, oddly, for use in books or movies. (Another difference between trademarks and copyrights is that you have to register trademarks for specific purposes; they're not general purpose like copyrights.) Does that mean you could write a book about a space wizard named Anakin Skywalker, as long as you didn't explicitly use any trademarked Star Wars IP? Almost certainly not; Disney would take you to court and claim your book was a derivative work of Star Wars, and unless you could somehow make a very convincing case that you had never heard of Star Wars and coincidentally came up with the name on your own, you'd likely lose.

Are the names "gnoll" and "treant" distinctive enough that Wizards of the Coast could make a case that any other game using them was a derivative work? Ehhhh... maybe not, but I doubt it would be so clear-cut that it wouldn't at least go to court.

(Again, though, IANAL, so take all this for what it's worth.)

Clearly the solution is for Daybreak Games to provide a license to use their copyrighted monsters in tabletop RPGs at a reasonable price point.

 

[pemerton]

IANAL, and hopefully one of the people posting here who are lawyers will chime in and clarify, but it should be noted there are big differences between copyrights and trademarks. Trademarks can be lost if you don't defend them; copyrights can't. Also, copyrights are automatic (though there are benefits to officially registering them); trademarks have to be specifically registered, and each name, brand, or logo has to be trademarked separately. As far as I know, WotC never tried to trademark specific monster names like "gnoll" or "treant", but if they did, their use in EverQuest certainly could cause them problems. However, that would have no effect on their copyright—you don't lose copyrights by not defending them.

I think the US will be similar to Australia in that trademarks can arise and be defended without being registered.

The US has legal principles around "trade dress" that I think may be different (more expansive) than Australian law. (Australian law does have some recognition of "get up", I believe, so perhaps the differences are narrower than I think. It's not really my field.)

What difference widespread use of similar ideas for fantasy creatures makes to possible WotC copyright claims I don't really know. It may make it harder to show that any particular future work was copied from or derived from WotC work. That said, if the allegedly infringing work is in a clear line of succession from a previous work that mentioned WotC's SRD in a section 15 copyright statement, then the fact that there is other similar stuff around may be less important.

 

[pemerton]

No, they're not, but I don't think that necessarily allows you to just use names from a copyrighted work willy-nilly. I'd think a case could still be made that you're creating a derivative work.

<snip>

Are names like "gnoll" and "treant" distinctive enough that Wizards of the Coast could make a case that any other game using them was a derivative work? Ehhhh... maybe not, but I doubt it would be so clear-cut that it couldn't at least go to court.

I'm an academic lawyer but not an IP specialist. My understanding of copyright law is that the focus is on the protection of creative expression. The name "gnoll" is probably not protected. But a work about hyena-headed, demon-worshipping beings that are called gnolls might get closer.

Torchbearer is a non-licensed RPG that includes owlbears, and demon-worshipping hyena-headed gnolls; its authors and publishers are presumably confident that they're not infringing. But Torchbearer has fairly focused statblocks and eschews elaborate story.

 

[demoss]

(Deleted post, stuff already pointed out and answered.)

 

[wingsandsword]

I'd imagine that Sony Online Entertainment knew what it was doing when it made EverQuest, with regards to copying/derivative things from D&D and what someone could get away with copying versus what they couldn't copy.

Besides it being the (then) biggest MMORPG ever so presumably they had some level of legal review over content, they were oddly careful to avoid exactly copying certain monsters. . .the creatures that WotC would later claim to be "product identity" when the SRD would come out a year after EverQuest came out.

There are no illithid/mind flayers, for example. The closest you get are the thought horrors in The Deep (the zone that's basically their version of the Underdark). . .and they're green skinned humanoids with four long tentacles. . .coming out of the side of their heads, not the front of their face. Also in The Deep, they don't have Umber Hulks, another "product identity" creature, but they do have Under Bulks. . .which just happen to look somewhat similar.

They don't have beholders, they have "evil eyes" that are literally floating eyeballs with an optic-nerve like tendril trailing behind them (the zone they appear in is referenced in some internal documentation as "Beholder's Maze", but the term "beholder" isn't used in the game itself).

 

[occam]

IANAL, and hopefully one of the people posting here who are lawyers will chime in and clarify, but it should be noted there are big differences between copyrights and trademarks. Trademarks can be lost if you don't defend them; copyrights can't. Also, copyrights are automatic (though there are benefits to officially registering them); trademarks have to be specifically registered, and each name, brand, or logo has to be trademarked separately. As far as I know, WotC never tried to trademark specific monster names like "gnoll" or "treant", but if they did, their use in EverQuest certainly could cause them problems. However, that would have no effect on their copyright—you don't lose copyrights by not defending them.

Both copyright and trademark protection are automatic; trademarks can be registered, which can make them easier to defend. Copyright protection is for creative works—books, stories, artwork, music, film, etc.—and has a limited lifetime (decades, with details being jurisdiction-dependent). Trademark protection is for distinctive identifiers of marketplace actors—names, logos, designs, etc.—and can be maintained indefinitely, if it's defended. But as you note, protection for trademarks can be lost if not defended, which has arguably happened for a lot of things that TSR/WotC could've conceivably claimed as such.

 

[Dausuul]

This is hitting where it hurts the most for WoTC right now. People working on every piece of "IP" they think they have and breaking it down to myths and older references, so it eventually becomes clear for anyone what really is public domain and what is not, also providing easier references for any future litigation WoTC could try (of course, this would be reference, not legal advise or anything similar).
I've seen another post breaking down gnomes to it myths and such.

I'd be wary of leaning too hard on this approach. If I write a novel retelling the story of Snow White, it doesn't become public domain just because Snow White is a pre-existing story. Even if you can trace back every element of my novel to some other source, the selection of those elements and the way I assemble them matters.

 

[pemerton]

I'd be wary of leaning too hard on this approach. If I write a novel retelling the story of Snow White, it doesn't become public domain just because Snow White is a pre-existing story. Even if you can trace back every element of my novel to some other source, the selection of those elements and the way I assemble them matters.

Another way to look at it: I would expect Disney to have a plausible claim to copyright in respect of its fairy tale scripts as well as its fairy tale moving pictures.