OGL question

[Sean]

I'm wondering about something.

If someone wanted to publish a fantasy game that had spell lists with a vague resemblance to D&D's, but without any of the names ('Leomund's', etc., which are IP), why would that person bother to use the OGL as opposed to just publishing the game as a stand-alone object? Is there any reason to think you're legally vulnerable if you publish a game with a spell name like 'magic missile' in it, which is effect-descriptive in plain English?

I know there are reasons for and against using both d20 and the OGL as a sales tool - my question isn't about those. It's about why on earth you'd put the OGL into your in-some-respects-D&D-like fantasy heartbreaker. Would it just be to 'share the wealth'? Or are there potential legal problems if you don't? Anyone know anything about this?

[jdagna]

You don't need the OGL if you're including things and filing the serial numbers, but you do have to be careful that the filing is done correctly (and only a lawyer could tell you for sure, and even then a frivolous suit could still make life painful because you might not have the resources to do anything about it).

Just remember that copyright protects specific wordings only and trademarks protect specific names/logos only.  So if you change the wording and avoid protected terms, you should be OK.  Something like "magic missile" does put you in a large gray area, though. Yes, it's just descriptive English, but yes it's the exact same words used in the original, and you have the added complication that anyone hearing "magic missile" is going to immediately think of the D&D spell.  If the function of the spell is also similar to D&D's, I would think you're taking a risk.

In general, my advice would be to change more than you think you have to.

[daemonchild]

Many people use other games as inspiration.  In terms of D&D, you'll probably have a huge challenge because of the fact that the material in fantasy has become archetypal.  For example, vampire mythos is very challenging because settings have to differ greatly.  In some cases, however, they do not.  Example?  Blade vampires have houses, some appear to be very closely related to clans in White Wolf's Vampire: the Masquerade setting.  Now, how can Blade get away with this you ask?  You only need to be 20% different from the original.  

Unfortunately, D&D material is (I feel) virtually impossible to be modified to a point unrecognizable.  Also, because you can't copyright game mechanics (you can only copyright words) the way you describe D20 would be so similar to D&D that it would raise an automatic flag.

Here is the link from the Wizards web site that may help answer your question:

http://www.wizards.com/default.asp?x=d20/oglfaq/20040123f

[MisterPoppet]

I know this is just being nit-picky, but Blade (and it's houses) came around about 10 years before Vampire: the Masquerade (give or take). It was a comic book, before it was a movie. In fact, Blade (who was some white guy before he was Wesly Snipes) met Spiderman once or twice. But I babble on....

I concur fully with your D&D statement. It is nearly impossible nowadays to be inspired by D&D and not actually be D&D. However, something important to point out. If he is using the D20 System, then he is allowed to use magic missle and it's stats. If you look, magic missle is in the D20 SRD, this means it's Open Game material and he's allowed to use, modify, and distribute it. But if he's not using D20, then he should just scrap the idea of even touching it with an eleven-foot pole. Wizards would have him like white on rice on a paper plate.

-MisterPoppet-

[lev_lafayette]

Also, because you can't copyright game mechanics (you can only copyright words) the way you describe D20 would be so similar to D&D that it would raise an automatic flag.

OK, this just caused me great fear.

Some time ago I interviewed http://www.levlafayette.com/redfriday0407.html">Richard Stallman. You post just made me think... What if someone patented game mechanics?!?

[Sean]

As far as I know you can't copyright or patent game mechanics, which is part of why this whole area is so complicated.

Two issues here:

1) Why, other than sales, would an indie game (as opposed to supplement) publisher, use the WotC OGL? Pros: you can be very close to certain you won't be sued if you have D&D-like stuff in your game. Possible Cons: you have to include two extra pages of text; you have to give some of your stuff away; you're calling attention to the derivative rather than the original portions of your work.

2) If someone were publishing a product similar to

- The Arduin Grimoires

- Judges Guild's Universal Fantasy System

- Thieves' Guild

etc. today, would they be likely to get hit with/lose a lawsuit from the D&D owners? (Tunnels and Trolls?)

The problem is with all this stuff out there I don't see why you couldn't pretty much publish any sort of class/level fantasy RPG and claim you were basing it on the living tradition (including many fantasy heartbreakers, etc.) represented by all these games.

Of course, anyone can sue you for anything, and Hasbro has deep pockets. But I'm not sure why, other than either wanting to share or wanting to feel more secure about potential lawsuits, anyone would bother with this.


Two other things:

1) Justin, that's a good point about the grey area of 'magic missile'. I suppose that's why when you look at other games they usually have 'mystik dart' or 'mana-bolt' or that sort of thing instead. Why not just make your own life easier by describing the magic effect differently yourself.

2) Insofar as the OGL creates psychological relaxation in those who use it, it was a smart thing of WotC to offer at the time (in Y2K). Not just for the official Dancey reasons of creating a bigger community where everyone can produce and share stuff for the core game etc., WotC sells the core and others sell the supplements. But because they combine this license with a fairly hard-ass policy towards using anything from the earlier versions of D&D (AFAIK only Kenzer with Hackmaster has ever been allowed to use that stuff since 3e came out, and I believe they pay for the privelege). So that's a smart way to 'enforce' the new edition.

[viktor_haag]

OK, this just caused me great fear.

Some time ago I interviewed http://www.levlafayette.com/redfriday0407.html">Richard Stallman. You post just made me think... What if someone patented game mechanics?!?

My hazy memory says that this has already been done. I believe that WotC has a patent (pending) for certain mechanics having to do with Magic the Gathering (including, I believe, the process of "tapping" a card?). I have no idea what happened to this patent app, and I'm not about to look as I'm enjoined from doing patent research while at work.

I think you can patent a "process", but not an "instruction", if I remember my intellectual property seminar's contents accurately; of course, the distinction between these two things is often hazy (i.e. "tapping")...

--
Viktor

[daMoose_Neo]

WotC has patented/trademarked (One of the two) certain phrases, not mechanics, in relation to Magic and the function of a card game. Thus, in a card game, using the phrase "Tap" is illegal for anyone other than WotC- they've patented the phrase/action as it pertains to card games.
There are other ways to phrase the same, however. This happens in many other industries. For example, the company Tracfone patented a display on their phones that indicates remaining time on the prepaid phone and the next due date. Because of that, no other company can display that information, though they CAN have a verbal response, and to my knowledge saying something can't be patented or copyrighted.
Unless you have a LOT to lose if someone borrows a term of yours, its not neccesarily intelligent to go ahead and patent something like that. It costs a lot of money for a limited time, and you still have to enforce the patent if its breeched.

Course to, standard disclaimer: speak to real legal council for totally legit details.

[Veritas Games]

Lists of things and collections of things are potentially copyrightable even if individual elements aren't copyrightable.

I'd probably say that the list of spells, as a collection, potentially has a thin layer of copyrightability on the collection of names and selection of effects, that goes beyond the verbatim text.

I'd be careful about duplicating the spell list, spell for spell, and just changing the words.  RPGs are weird in that they combine creative content that is copyrightable with uncopyrightable mechanics.

I think that case law regarding recipies applies.  An individual recipe is NOT copyrightable except its verbatim text, and taking a few recipies from the collection is OK, but the collection of recipies as a whole is DEFINITELY copyrightable.  I think spells fall into this category under the law.

[Veritas Games]

WotC has patented/trademarked (One of the two) certain phrases, not mechanics, in relation to Magic and the function of a card game.

They have patented more than just the Tapping mechanic.  That patent is vulnerable to attack, however, because most of its content was available to the public more than 1 year prior to the patent filing.

But it's not just one random mechanic that was part of their patent, if memory serves, but that was one of the more distinctive claims of their patent.

Thus, in a card game, using the phrase "Tap" is illegal for anyone other than WotC- they've patented the phrase/action as it pertains to card games.

You don't patent a word.  You can potentially patent a method of doing something.  I can, for instance, make it a mechanic in my game to physically tap my fingers on a card which I am gaining effects from.  I can call that "Tapping" all day long and it has no interaction with WotC's patent.

[Ron Edwards]

Hello,

This thread is a little too full of speculation and "what I heard." I strongly suggest those folks who are interested in legal questions to consult lawyers, and those folks who want to know about specific gaming legal situations to consult the companies involved.

The whole "tapping" patent thing is not worth discussing publicly until all the participants have done the necessary investigation as described above. As for the topic which began this thread, I think that it's been resolved, unless Sean thinks otherwise.

Sean, close the thread or show us where to go with it.

Thanks,
Ron

[Sean]

I agree that consulting a lawyer is always the best thing if you're not sure what to do.

My question, which hasn't really been addressed, and maybe can't be because we're not lawyers, is this. Back in the old days, people just wrote games (most prominent examples are probably Thieves' Guild, Judges Guild's Universal Fantasy System after TSR shut down their licence) and supplements (most prominent example is the Arduin Grimoires) that were, functionally, straight-up D&D variants. Not even as much difference as the traditional 'fantasy heartbreaker'. Often there'd be a renamed stat or two, an extra stat or two, 'magic missile' would become 'mystic dart', and that kind of thing, but nobody had any illusions about what was going on. And TSR, who surely would have sued these people if they thought there was money or profit in so doing - or possibly even just 'a case' if they were feeling self-righeous - didn't bother to do so.

Now people are, as I see it, doing this exact same thing with 3rd edition D&D. (Everquest, Warcraft, Kalamar, a bazillion Mongoose splatbooks, etc.). But now all of these people have signed on to either the d20 license or the OGL or both.

My question is, why do those who don't pay for the d20 license bother with the OGL at all, as opposed to going the old 'stripping off the serial numbers and pointing out that you can't patent game mechanics so my roll high on a d20 system is just as fine as your roll high on a d20 system, thank you very much'?

I can think of three possibilities:

1) The WotC OGL is non-restrictive and publisher-friendly enough that the vague threat of being sued makes it easier just to use it.

2) WotC has threatened to sue people who don't use it.

3) People feel that the added value of the OGL is totally worth giving away some of their content for.

What I'm interested in in this thread is an informed opinion of which of those three, or some other thing I haven't considered, is the reason. In particular, if someone was disposed not to give away their content, or did not want to feel like they were collaborating with Wizards in any way, but still wanted to publish a D&D-like game that was suitably different (and that's the part that we should stop discussion because we can't get anywhere with it without a particular game on the table and a lawyer), why might they nonetheless still feel pressure or incentive to use the OGL? I assume there's some reason because everybody does, including most indie d20 outfits.

So if there's more on that, I'd like to hear it, but otherwise let it float into the great beyond...

[MisterPoppet]

I shall explain...

Everything in the games you mentioned are completely legal. They are Open Game Licensed (OGL) content derived from the System Resource Document (SRD). So long as some who uses the SRD includes a copy of OGL, they are free to use the content as they wish without any other requirments, restrictions, or fees. Using the SRD is very different from using the D20 System. If you use the D20 System (which includes the SRD in it), you have to use certain logos and place certain blocks of text in your book. You also need to fill out a little card and send it to WotC.. Now as for the specific examples you stated...

Everquest: It uses OGL content, but it does not use the D20 system. If you check the book, you will find a copy of the OGL.

Warcraft: Same as Everquest.

Kalamar: This is actually a campaign setting for D&D. As such, it uses the D20 System and it's license. It meets all the requirments of the D20 Trademark License.

the bazillion Mongoose splatbooks: these are also all under the effects and follow all the requirments of the D20 System Trademark License.

So really, you could go and download the SRD and use anything you want (even just little chunks) for your own RPG and all you would have to do is include a copy of the OGL and state which parts are OGL content.

I hope this helps, for more info go to this page I found.[/url]

-MisterPoppet-

[efindel]

My question is, why do those who don't pay for the d20 license bother with the OGL at all, as opposed to going the old 'stripping off the serial numbers and pointing out that you can't patent game mechanics so my roll high on a d20 system is just as fine as your roll high on a d20 system, thank you very much'?

I can think of three possibilities:

1) The WotC OGL is non-restrictive and publisher-friendly enough that the vague threat of being sued makes it easier just to use it.

2) WotC has threatened to sue people who don't use it.

3) People feel that the added value of the OGL is totally worth giving away some of their content for.

I'd say #1 and #3.  As far as I know, WotC hasn't threatened to sue anyone yet, which leaves #2 out.  (Someone please correct me if they have.)

However, in the pre-WotC days, TSR did threaten to sue people who used their "trademarks".  They also claimed a ridiculous expanse of things as their trademarks, including such things as "hit points" and "armor class".  In at least one case, they actually did sue -- they sued Mayfair over their "Role Aids" supplements.  If I recall correctly, Mayfair wound up settling out of court.

They also threatened a number of people who were running xD&D web and FTP sites... or more often, threatened their Internet provider, which generally resulted in the material getting taken down and/or the account revoked, since few ISPs cared to risk getting sued.

So... in one way, the OGL is a formal, legal way for WotC to say "we're not the old TSR; we're not going to sue you for trying to make stuff compatible with our game, as long as you're willing to follow a few simple rules".  

In some ways they have to do this:  the main thing that WotC has to protect in the way of xD&D is trademarks, and trademark law is different from copyright law or patent law.  In particular, one can lose a trademark for not defending it.  By creating their "d20 System Trademark License", WotC establishes terms under with people can use their "d20" names and logos... so they can let people use them right and left, and still argue that they've "defended" them.  Further, by not letting people use the actual D&D trademarks as part of that, the only thing they're risking losing is the "d20" trademarks.

The other thing the OGL gives people rights to do is copy WotC's text.  The mechanics of a game can only be protected by patent, but the text of it can be trademarked.  Thus, while I could write my own "d20 + attribute + skill >= difficulty is success" game, I couldn't borrow WotC's text describing it.  The OGL allows me to do exactly that.  Thus, someone trying to make a D&D derivative can simply take the "d20 System Reference Document" and change it as necessary to create their new system.  Several people have done this -- e.g., "Monte Cook's Arcana Unearthed", "Castles & Crusades", Mutants & Masterminds", etc.  These each "borrow" large blocks of text from the SRDs.  

(And it also helps with doing modules; rather than worrying about inventing their own format for doing quick monster writeups, each maker of "d20" modules can simply use the monster stat blocks from the SRD.)

To go back to your question, then...

#1 applies in that many people were afraid that WotC was going to carry on TSR's sue-happiness of the late '90s.  The OGL and STL both established that they would not do this... or at least, wouldn't do it in the same way that TSR had.

#3 applies to people making modules who want to simply cut-and-paste monster stat blocks, or to those making D&D variant systems, who would like to be able to use blocks of text from the D&D books instead of having to rewrite them... and hope that their rewritten version would not be held to be a "derivative work" in some court.  Remember, juries can be unpredictable.

... and that's the way I see it.  IANAL, but I have taken some time to study the law in the area, and look up a couple of the relevant cases.

--Travis

[jerry]

#3 applies to people making modules who want to simply cut-and-paste monster stat blocks, or to those making D&D variant systems, who would like to be able to use blocks of text from the D&D books instead of having to rewrite them..

I'm pretty sure that the OGL does not mention copying blocks of text from the D&D books. Any copied text has to be from an OGL document (such as the Standard Reference Document).

Jerry