# OGL FAQ



## Morrus (Dec 24, 2022)

There’s a lot of misinformation here and elsewhere about the current Open Gaming License (things like “it prohibits software” - it does not; and plenty of other things).

Anybody can read the OGL. Much of the misinformation shows that some people haven’t actually looked at it.



			Open Game License v0.1 Simplified
		


That aside, here’s a copy of WotC’s own FAQ about the OGL. Note a couple of things WotC themselves specifically say (not that the FAQ is the license — its terms are all self contained).

1. The community can ignore updates to the listened and use older versions (see #7 below).
2. Software is not prohibited. (Neither are ice sculptures or musicals — the OGL does not and never has prohibited any format).

These were WotC’s interpretations of their own license at the time.




*7. Can't Wizards of the Coast change the License in a way that I wouldn't like?*

Yes, it could. However, the License already defines what will happen to content that has been previously distributed using an earlier version, in Section 9. As a result, even if Wizards made a change you disagreed with, you could continue to use an earlier, acceptable version at your option. In other words, there's no reason for Wizards to ever make a change that the community of people using the Open Gaming License would object to, because the community would just ignore the change anyway.



—-




*12. Is Open Game Content limited to just "the game mechanic"?*

No. The definition of Open Game Content also provides for "any additional content clearly identified as Open Game Content." You can use the Open Game License for any kind of material you wish to distribute using the terms of the License, including fiction, artwork, maps, computer software, etc.



—-




*42. I want to distribute computer software using the OGL. Is that possible?*

Yes, it's certainly possible. The most significant thing that will impact your effort is that you have to give all the recipients the right to extract and use any Open Game Content you've included in your application, and you have to clearly identify what part of the software is Open Game Content.



——

*1. What is the Open Game License?*

The Open Game License (OGL) is a royalty free copyright license developed by Wizards of the Coast.

*2. Where can I read the text of the OGL?*

You can download the full text of the current version of the OGL here or here (12k RTF).

[[note those are old links now broken]]

*3. What are the penalties for violating the terms of the License?*

You are potentially liable to three groups of people, for various types of lawsuits.

First, you could be sued by anyone listed in the COPYRIGHT NOTICE section related to any Open Game Content you copied, modified or distributed. Second, you could be sued by anyone who receives Open Game Content from you and relies on you to ensure that your work conforms to the terms of the License who subsequently discovers problems with the Open Game Content they received from you. Third, you could be sued by someone with a copyright or trademark interest in the work you've distributed, even if you did so while relying on a previous publisher's representation that they had followed the terms of the License.

You could be sued for a copyright infringement, you could be sued for misuse of a trademark, you could be sued for breach of contract, and you could be sued for any number of torts related to those three actions.

If you have concerns about the scope of your liability under the Open Game License, you should consult with your legal counsel.

*4. Why does Wizards of the Coast hold the copyright to the license?*

Wizards of the Coast wrote the License and wants to control the right to make changes to the License in the future.

*5. Does Wizards of the Coast's copyright to the License mean that anything I publish using the License is owned by Wizards of the Coast?*

No. The copyright on the License pertains to the terms of the License itself, not to materials distributed using the License.

*6. How can I distribute the License if Wizards of the Coast owns the copyright to the License?*

Wizards of the Coast has granted a free and unrestricted right to distribute exact copies of the License.

*7. Can't Wizards of the Coast change the License in a way that I wouldn't like?*

Yes, it could. However, the License already defines what will happen to content that has been previously distributed using an earlier version, in Section 9. As a result, even if Wizards made a change you disagreed with, you could continue to use an earlier, acceptable version at your option. In other words, there's no reason for Wizards to ever make a change that the community of people using the Open Gaming License would object to, because the community would just ignore the change anyway.

*8. The license is confusing and full of legal terms I don't understand. Is there a "plain English" version?*

No, there is not. The License has been drafted with specific legal language to withstand any reasonable court challenge. An effort to simplify the text might introduce errors or omissions that would distort the License and could mislead potential users. You should consult your legal counsel if you have any questions about how to use the OGL.

*9. What is "Open Game Content"?*

Open Game Content is any material that is distributed using the Open Game License clearly identified by the publisher as Open Game Content. Furthermore, any material that is derived from Open Game Content automatically becomes Open Game Content as well.

*10. What does "clearly identified" mean?*

It means that the publisher has a burden to use some system to identify Open Game Content to any recipient of that content. Systems which have been used by some publishers include placing Open Game Content in shaded boxes, using a different font, italicizing or bolding the Open Game Content, and segregating all the Open Game Content into specifically designated chapters or appendixes. Some publishers have released documents that are identified as being comprised completely of Open Game Content.

"Clearly identified" means that the system should pass the "reasonable person" test; meaning that a reasonable person should be able to determine what portions of a given work are Open Game Content, and which portions are not. If you can't figure out what parts of a given work are Open Game Content, provided you exert a reasonable effort to read and apply the instructions for identification provided by the publisher, then the material isn't Clearly Identified.

This also applies to software. A reasonable person should be able to look at a piece of software and find and understand the Open Content. WeÍll make a slight allowance that they may have to take a little more time to understand some things, but they should be able to see and understand all Open Content. See the Software FAQ for more details.

*11. What is "an enhancement over the prior art"?*

This term means that Open Game Content cannot be something that is in the public domain. The idea of a person using a sword and a shield, for example, is "prior art" - nobody can try to claim that such an idea is Open Game Content. Calling that person "Conan", and providing a detailed description of his physical features, history, manner of speaking, personality, equipment, and actions is an enhancement over the prior art. If something that is prior art appears in material that is clearly identified as Open Game Content, it isn't going to be treated as Open Game Content by the License. If you have questions about whether something identified as Open Game Content should be considered prior art, you should consult your legal counsel.

_Note:_ You could take original material that you own and have previously published, and license it with the OGL as Open Game Content, because you still own the copyright to that material and it is not considered to be prior art. Just because something has been published in the past doesn't mean that it is automatically considered to be prior art.

*12. Is Open Game Content limited to just "the game mechanic"?*

No. The definition of Open Game Content also provides for "any additional content clearly identified as Open Game Content." You can use the Open Game License for any kind of material you wish to distribute using the terms of the License, including fiction, artwork, maps, computer software, etc.

Wizards, however, rarely releases Open Content that is not just mechanics.

*13. What is Product Identity?*

Product Identity is material, otherwise clearly identified as Open Game Content, that is excluded from the License terms that apply to Open Game Content. Product Identity usually includes trademarks and other Intellectual Property (characters, settings, etc.)

*14. How do I identify Product Identity?*

Product Identity must be "clearly identified" just like Open Game Content.

*15. If something is clearly identified as both Open Game Content and Product Identity in the same work, what is it?*

Product Identity.

*16. Can a work be derived from both Open Game Content and Product Identity?*

Yes, but since the Open Game License only gives you the right to copy, modify and distribute Open Game Content, unless you had a separate license from whomever owned the Product Identity, you cannot legally copy or distribute a work that contained such material without a separate agreement from the owners of the Product Identity.

*17. If I identify something as Product Identity that was previously distributed as Open Game Content, does the material become Product Identity?*

No. Once content has been distributed as Open Game Content, it cannot become Product Identity, even if you are the original creator of the content.

*18. If I identify something as Product Identity, then in the future I distribute that material as Open Game Content, does the material become Open Game Content?*

Yes. By doing so, you will be relinquishing your claim that the material should be considered Product Identity.

*19. Say I wanted to publish some material that was formatted as in this example: "Character Name (Stat Block)." How do I keep the Product Identity separate from the Open Game Content?*

You could clearly identify the Character Name as Product Identity elsewhere in the work. Assuming that the stat block was derived from other Open Game Content, the stat block must be clearly identified as Open Game Content (it will be Open Game Content even if you don't clearly identify it, but you have the burden to identify such content when you distribute the work).

*20. In the example above, could I designate all the text as Open Game Content?*

Yes.

*21. But that would mean that anyone else could use Character Name in his or her own material without my permission?*

Yes.

*22. Who is the "Licensee" referred to as "You" by the License?*

Any recipient of any material using the Open Game License. In other words, you become a Licensee when you receive Open Game Content, and anyone you distribute that content to (or any derivative works based on that content) also becomes a Licensee. If you want to use the Open Game License in conjunction with some work that is wholly your own original creation, you become a Licensee when you first distribute that work using the OGL.

*23. What if I distribute material that is Open Game Content, but I don't affix a notice saying that the Open Game Content can only be Used in compliance with the OGL?*

You will have breached the terms of the License.

*24. Why can't any terms be added or subtracted from the License?*

This clause ensures that each person that you distribute Open Game Content to will get exactly the same rights that you received when you got the Open Game Content yourself. Note that this clause means you can't restrict others from adapting your Open Game Content, or limit who can distribute Open Game Content, or add any other restrictive term. Likewise, you can't alter the terms of the license to remove sections that you might find objectionable, like the Product Identity definition.

*25. Does this mean that someone could take Open Game Content I wrote and distributed for free, and then put it in a product and sell that product to someone else?*

Yes.

*26. To be clear: Does this mean that Wizards of the Coast could take Open Game Content I wrote and distributed for free, put it into a Dungeons & Dragons product and make money off it?*

Yes.

*27. And they wouldn't have to ask my permission or pay me a royalty?*

No, they would not.

*28. Isn't that pretty unfair?*

If you don't like the terms of the Open Game License, don't publish Open Game Content. Since the terms of the License are public knowledge, and they apply to everyone equally, including commercial publishers like Wizards of the Coast, your decision to use the Open Game License means that you consent to abide by its terms freely and without coercion. That's about as fair as anything ever gets.

*29. Does Wizards of the Coast get the copyright to my Open Game Content?*

No, they do not. When you distribute Open Game Content, you must assert a valid copyright either on your own behalf, or on the behalf of whoever does own the valid copyright on the material. You do so by adding your copyright information to the COPYRIGHT NOTICE section of the License when you distribute the License with your Open Game Content.

Wizards of the Coast has to follow the terms of the Open Game License just like anyone else. That means that if they want to use Open Game Content that isn't something they own outright or have a separate agreement with the copyright holder, they'll have to include a copy of the OGL in the work where they've used Open Game Content, they'll have to clearly identify what content is Open Game Content, and they'll have to preserve the COPYRIGHT NOTICE section of the OGL you used when you distributed your work originally. You will retain full copyright to your Open Game Content, regardless of who re-distributes it.

*30. What does "Acceptance" mean?*

It means that by Using Open Game Content, you agree to be bound by the terms of the Open Game License. In order for a contract to be valid and enforceable, there must be an Offer (in this case, the terms of the License), Acceptance (in this case, your agreement to be bound by the terms of the License), and Consideration (in this case, the right to Use Open Game Content).

*31. What if I clearly identify something as Open Game Content but I don't own the copyright to that material or have the permission of the copyright owner to do so?*

You will have breached Section 5, since you don't have Authority to Contribute. As a result, the material you clearly identified as Open Game Content does not become Open Game Content. The legal consequences of doing so could be quite dire. You should consult with your legal counsel to be sure that you have the Authority to Contribute anything you intend to distribute as Open Game Content.

*32. What is the COPYRIGHT NOTICE?*

The COPYRIGHT NOTICE is a specific part of the License itself, as opposed to a general copyright notice that might appear elsewhere in a given work. The License requires that you combine all the COPYRIGHT NOTICE sections of each Open Game License you are extracting or deriving Open Game Content from, and include the consolidated notice with the copy of the Open Game License you will be distributing.

This mechanism is the way that proper credit is retained for each person who contributed some work to the Open Gaming community. No matter how small the contribution, each and every COPYRIGHT NOTICE propagates forward.

*33. Why can't I indicate compatibility with a Trademark or a Registered Trademark?*

The Open Game License expands the control a Trademark owner has over your ability to use that Trademark beyond the restrictions normally allowed by trademark law. The explicit reason this clause is included in the Open Game License is to stop people from saying that their Open Game Content is compatible with *Dungeons & Dragons*, or any other Wizards of the Coast game, without getting permission from Wizards of the Coast first. Of course, the clause is generic, so you can't indicate compatibility with any other company's trademarks either unless you get their permission first.

*34. Doesn't this conflict with the definition of an Open Game?*

No, it does not. You are not restricted from freely copying, modifying or distributing the Open Game Content itself. Your freedom to Use the Open Game Content is not restricted, except to the extent that you cannot indicate compatibility or co-adaptability with someone else's Trademark or Registered Trademark.

The rationale behind this clause is related to the value of the material covered by the Open Game License. Companies (and individuals) spend a lot of time and effort to create and establish Trademarks that others recognize in the marketplace. By restricting your right to indicate compatibility or co-adaptability with other people's Trademarks, the License recognizes that the value of those Trademarks is separate from the value of the Open Game Content itself. If you want to tap into the value represented by a given Trademark, you will need to negotiate a separate agreement with the Trademark holder for that privilege.

*35. My understanding of Trademark law is that it is legal for me to indicate compatibility or co-adaptability with a Trademark so long as I don't dilute the mark, confuse consumers about the ownership of the mark, or attempt to claim ownership of the mark. How can the OGL stop me from using a Trademark in a way that is otherwise completely legal?*

The terms of the Open Game License supercede the terms of general Trademark law. By agreeing to accept the Open Game License, gaining the benefit of the consideration of being able to use Open Game Content under the terms of the OGL, you limit certain other rights that you might otherwise have.

*36. What happens if I go ahead and indicate compatibility or co-adaptability with a Trademark I don't have permission to use?*

You will be in breach of the Open Game License. You might also find yourself being sued by the owner of the trademark in question, under regular trademark law. If you have any question about your ability to use a Trademark owned by someone else, you should consult your legal counsel.

*37. I want to make a product that claims compatibility with someone else's Trademark, and uses Open Game Content. I'm going to put the Open Game Content in a separate booklet in a box, and only use the Trademark on the packaging on the box. Can I get away with this?*

No. The terms of the Open Game License extend to the whole work. If you have questions about the technical legal definition of a "work", consult your legal counsel.

*38. Do I really have to include a copy of the whole license when I distribute Open Game Content?*

Yes, you do.

*39. Can I include one copy of the license in a work with many separate portions that are Open Game Content?*

Yes, so long as the copy of the License you include contains a complete and full list of all the COPYRIGHT NOTICE sections from all the source material.

*40. What if I'm writing an email message or using a very small amount of Open Game Content?*

Technically, you are still required to include a copy of the License text. In the real world however, you are unlikely to be sued by someone over the use of Open Game Content in an email message or other trivial use if you fail to do so.

*41. I want to create a website that contains many different pages with Open Game Content. Do I have to include a copy of the License on every page?*

It will be sufficient to include a link on every page containing Open Game Content to one centralized copy of the License.

*42. I want to distribute computer software using the OGL. Is that possible?*

Yes, it's certainly possible. The most significant thing that will impact your effort is that you have to give all the recipients the right to extract and use any Open Game Content you've included in your application, and you have to clearly identify what part of the software is Open Game Content.

One way is to design your application so that all the Open Game Content resides in files that are human-readable (that is, in a format that can be opened and understood by a reasonable person). Another is to have all the data used by the program viewable somehow while the program runs.

Distributing the source code not an acceptable method of compliance. First off, most programming languages are not easy to understand if the user hasnÍt studied the language. Second, the source code is a separate entity from the executable file. The user must have access to the actual Open Content used.


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## Nikosandros (Dec 24, 2022)

Morrus said:


> There’s a lot of misinformation here and elsewhere about the current Open Gaming License (things like “it Leninist software” - it does not;



Well, Leninist software was good: The New Software Politics. But I never cared for the Stalinist model of Five Year Development Sprints.


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## Dreamscape (Dec 24, 2022)

Morrus said:


> Anybody can read the OGL. Much of the misinformation shows that some people haven’t actually looked at it.




What fun is there in analysing something you've actually read? Where's the sense of mystery, surprise, the thrill of the unexpected and the simple sense of wonder at finally discovering what it is you've been talking about for the last 20 pages?

No, this is not how to frame debate on the internet. Go in blind, or stay out of it.


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## JEB (Dec 24, 2022)

12 and 42 certainly won't work in Wizards' favor if they try and argue that software was always prohibited (assuming that's what they meant by 1.1 making it "clear" that it is).


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## JEB (Dec 24, 2022)

Also, here's a fully functional copy (including functional links) of the original from the Internet Archive: Open Game License:Frequently Asked Questions


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## UngeheuerLich (Dec 24, 2022)

JEB said:


> 12 and 42 certainly won't work in Wizards' favor if they try and argue that software was always prohibited (assuming that's what they meant by 1.1 making it "clear" that it is).



If I read it right, they just state that they make sure that the 1.1. OGL makes it clear, what it covers.


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## Abstruse (Dec 24, 2022)

JEB said:


> 12 and 42 certainly won't work in Wizards' favor if they try and argue that software was always prohibited (assuming that's what they meant by 1.1 making it "clear" that it is).



There's some confusion over their statement. About software, they say that 1.1 is making it clear that's not allowed _under v1.1_. They use the term "never intended" to talk about merch.

"D&D merchandise, like minis and novels, were never intended to be part of the OGL and OGL 1.1 won’t change that."

Which, frankly, is kinda funny because those don't need licenses, OGL or otherwise. Any novel written isn't going to be using game mechanics in the novel itself (outside of novels parodying TTRPGs like in the style of _The Gamers_) so they shouldn't be using the OGL, and miniatures also don't need game mechanics as they're just scale miniatures of mythological creatures. I can't think of a single monster that's not already designated WotC IP (beholders, mind flayers, etc.) that _are _in the SRD but _are not _in the public domain from their use in folklore. You could try to argue that D&D trolls don't look like mythological trolls, but that's a hard case to make.

I'm honestly not sure why they felt the need to highlight that in the D&D Beyond post now that I think about it. The only thing I can think of would be something like Critical Role making minis and t-shirts based off their characters without a license? Well not Critical Role because the fan backlash would put the "T$R" era to shame and the two companies seem to have a good working relationship, but possibly other streams or YouTube videos doing something similar.


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## SkidAce (Dec 25, 2022)

It actually looks to me like WotC thinks that 1.1 will establish a "break" in continuity.  

And that they can restrict things going forward that we think would be completely compatible with past versions of the OGL.

We will see.


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## JEB (Dec 25, 2022)

Abstruse said:


> "D&D merchandise, like minis and novels, were never intended to be part of the OGL and OGL 1.1 won’t change that."



Which is also a shaky statement on their part, per 12. "You can use the Open Game License for any kind of material you wish to distribute using the terms of the License, including *fiction*, artwork, maps, computer software, etc.". And an argument could be made that minis constitute "artwork" (which would back up the existence of Pathfinder minis of SRD creatures).

I suppose one could argue that they specifically mean "D&D merchandise" but are permitting minis and novels that aren't D&D-branded, but that seems like an overly generous reading.


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## Abstruse (Dec 25, 2022)

JEB said:


> Which is also a shaky statement on their part, per 12. "You can use the Open Game License for any kind of material you wish to distribute using the terms of the License, including *fiction*, artwork, maps, computer software, etc.". And an argument could be made that minis constitute "artwork" (which would back up the existence of Pathfinder minis of SRD creatures).
> 
> I suppose one could argue that they specifically mean "D&D merchandise" but are permitting minis and novels that aren't D&D-branded, but that seems like an overly generous reading.



Which brings into the question what's the line between "game writing fiction" and "novel writing fiction". If a sourcebook for an RPG has nothing but lore with no game mechanics, is it a game book or a novel? I _think _the original idea was to allow game writing fiction (like "here's a sourcebook with my setting and all my NPCs and the history of the world") but _not _allow novels (like writing those same events and setting from the POV of those NPCs).

It's also been almost two decades since that FAQ was written and the industry has changed a lot in that time so who knows what new sorts of products have come out during that time they didn't anticipate in 2004. Since they don't mention anything specific, it's a pure random guess what someone's doing with the OGL that they shouldn't be using the OGL for (not because WotC said not to, but just because there's no benefit for the third party publisher to do so).


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## DEFCON 1 (Dec 25, 2022)

It seems to me that at the end of the day WotC created a big playground for people to use (OGL) which people have done so for years.  But now, they are creating a smaller playground within the bigger one that will include more rules (1.1).  People of course are rightly asking why they would want to play in the smaller section WotC has cordoned off, rather than just stay in the big section... and right now there doesn't seem to be an answer yet.

But for all we know, we will get a answer in the coming months/years that will indicate exactly why some people may _want_ to move into WotC's smaller playground-- like for instance perhaps being able to have their stuff incorporated into D&D Beyond in a purchasable 3rd Party section.  You want to be able to have the stuff you create be able to be programmed into D&D Beyond and you want people able to buy your "books" in it like we all currently do with WotC's books?  Then to do so you have to abide by 1.1 and thus give up other rights you otherwise might have had with the original OGL.  But if you don't care about selling your products through D&D Beyond... then you can stick with the original OGL.

Obviously the D&D Beyond thing is just me spitballing here... but I would have to think that there will be _something_ WotC will talk about in the future that could inspire people to move into their new 1.1 playground.  But right now we'll have to just wait and see what that something ends up being-- and whether it has enough value for creators to eventually make the choice to move.


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## Sorcerers Apprentice (Dec 25, 2022)

Abstruse said:


> Which, frankly, is kinda funny because those don't need licenses, OGL or otherwise. Any novel written isn't going to be using game mechanics in the novel itself (outside of novels parodying TTRPGs like in the style of _The Gamers_) so they shouldn't be using the OGL, and miniatures also don't need game mechanics as they're just scale miniatures of mythological creatures. I can't think of a single monster that's not already designated WotC IP (beholders, mind flayers, etc.) that _are _in the SRD but _are not _in the public domain from their use in folklore. You could try to argue that D&D trolls don't look like mythological trolls, but that's a hard case to make.



There are loads of 3rd party miniatures of iconic D&D monsters like Beholders and Mind Flayers, just under different names. The concept of these monsters can't be copyrighted, only specific representations of them.


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## Sacrosanct (Dec 25, 2022)

Sorcerers Apprentice said:


> There are loads of 3rd party miniatures of iconic D&D monsters like Beholders and Mind Flayers, just under different names. The concept of these monsters can't be copyrighted, only specific representations of them.



Remember that trademarks are different from copyright. If I created minis that looked just like Darth Vader but called it Garth Tater, I could still be in trouble because darth Vader image is trademarked.


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## Sorcerers Apprentice (Dec 25, 2022)

Sacrosanct said:


> Remember that trademarks are different from copyright. If I created minis that looked just like Darth Vader but called it Garth Tater, I could still be in trouble because darth Vader image is trademarked.



Yeah, but something as unspecific as "A bald purple skinned humanoid with a face full of tentacles" can't easily be trademarked.


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## Dreamscape (Dec 26, 2022)

Sorcerers Apprentice said:


> Yeah, but something as unspecific as "A bald purple skinned humanoid with a face full of tentacles" can't easily be trademarked.



Indeed - the miniature industry is full of creatures that look sufficiently different from TSR/WotC artwork and have slightly odd names, yet are easily recognisable.


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## DEFCON 1 (Dec 26, 2022)

Dreamscape said:


> Indeed - the miniature industry is full of creatures that look sufficiently different from TSR/WotC artwork and have slightly odd names, yet are easily recognisable.



Yep.  MCDM's new monster book and miniatures line has a Mind Flayer lookalike and a Beholder lookalike too.


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## Sacrosanct (Dec 26, 2022)

Sorcerers Apprentice said:


> Yeah, but something as unspecific as "A bald purple skinned humanoid with a face full of tentacles" can't easily be trademarked.



The description perhaps not, but the name _and _image, absolutely.  IIRC, Hasbro only has the name trademarked, that's what allows these knockoffs.  But if they had also trademarked the image, you absolutely could not do what folks have been doing without violating that.  It's why we don't see Garth Tater miniatures or books.  The image of Darth Vader is.






Anyway, back to my point.  Trademarks are different than copyright, and I see a lot of folks (not picking on you) overlook that or are unaware of that.  Before using anyone's IP, I'd highly suggest people do their due diligence and ask an expert rather than assuming.


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## Sorcerers Apprentice (Dec 26, 2022)

Sacrosanct said:


> The description perhaps not, but the name _and _image, absolutely.  IIRC, Hasbro only has the name trademarked, that's what allows these knockoffs.  But if they had also trademarked the image, you absolutely could not do what folks have been doing without violating that.  It's why we don't see Garth Tater miniatures or books.



But there's no single image of a mind flayer to trademark. I could make a miniature of a character a hard suit with a german helmet, face mask and cape that reminds you of Darth Vader, but if it's not an exact copy or nearly so my Barth Fader is in the clear.

If there was a way Hasbro could prevent anyone from making miniatures that look like mind flayers they would already be doing it.


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## Sacrosanct (Dec 26, 2022)

Sorcerers Apprentice said:


> But there's no single image of a mind flayer to trademark. I could make a miniature of a character a hard suit with a german helmet, face mask and cape that reminds you of Darth Vader, but if it's not an exact copy or nearly so my Barth Fader is in the clear.
> 
> If there was a way Hasbro could prevent anyone from making miniatures that look like mind flayers they would already be doing it.



This isn’t always true either. Derivative work is tricky and can be a grey area. It would be up to a court to decide based on several factors. If it appears you’re trying to game the system for profit, it probably won’t end well for you.


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## see (Dec 26, 2022)

That above is apparently the second version of the FAQ. The original version read:

*The        Open Game License: 
        Frequently Asked Questions
*Version        1.0 - February 9, 2001​

*



*​



 The        questions and answers below refer to sections of the Open Game License.        Download it here. (12k RTF)


*Q:        What is the Open Game License?*


A: The        Open Game License (OGL) is a copyright license developed by Wizards of        the Coast. It complies with the Open Game definition.


*Q:        Where can I read the text of the OGL?*


A: You        can download the full text of the current version of the OGL                (12k RTF) right        here        or view it at        the Open Gaming        Foundation website.


*Q:        What are the penalties for violating the terms of the License?*


A: You        are potentially liable to three groups of people, for various types of        lawsuits. First, you could be sued by anyone listed in the COPYRIGHT NOTICE        section related to any Open Game Content you copied, modified or distributed.        Second, you could be sued by anyone who receives Open Game Content from        you and relies on you to ensure that your work conforms to the terms of        the License who subsequently discovers problems with the Open Game Content        they received from you. Third, you could be sued by someone with a copyright        or trademark interest in the work you've distributed, even if you did        so while relying on a previous publisher's representation that they had        followed the terms of the License.


You could        be sued for a copyright infringement, you could be sued for misuse of        a trademark, you could be sued for breach of contract, and you could be        sued for any number of torts related to those three actions.


If you        have concerns about the scope of your liability under the Open Game License,        you should consult with your legal counsel.


*Q:        Why does Wizards of the Coast hold the copyright to the license?*


A: Wizards        of the Coast wrote the License and wants to control the right to make        changes to the License in the future.


*Q:        Does Wizards of the Coast's copyright to the License mean that anything        I publish using the License is owned by Wizards of the Coast?*


A: No.        The copyright on the License pertains to the terms of the License itself,        not to materials distributed using the License.


*Q:        How can I distribute the License if Wizards of the Coast owns the copyright        to the License?*


A: Wizards        of the Coast has granted a free and unrestricted right to distribute exact        copies of the License.


*Q:        Can't Wizards of the Coast change the License in a way that I wouldn't        like?*


A: Yes,        it could. However, the License already defines what will happen to content        that has been previously distributed using an earlier version, in Section        9. As a result, even if Wizards made a change you disagreed with, you        could continue to use an earlier, acceptable version at your option. In        other words, there's no reason for Wizards to ever make a change that        the community of people using the Open Gaming License would object to,        because the community would just ignore the change anyway.


*Q:        The license is confusing and full of legal terms I don't understand. Is        there a "plain English" version?*


A: No,        there is not. The License has been drafted with specific legal language        to withstand any reasonable court challenge. An effort to simplify the        text might introduce errors or omissions that would distort the License        and could mislead potential users. You should consult your legal counsel        if you have any questions about how to use the OGL.


*Q:        What is "Open Game Content"?*


A: Open        Game Content is any material that is distributed using the Open Game License        clearly identified by the publisher as Open Game Content. Furthermore,        any material that is derived from Open Game Content automatically becomes        Open Game Content as well.


*Q:        What does "clearly identified" mean?*


A: It        means that the publisher has a burden to use some system to identify Open        Game Content to any recipient of that content. Systems which have been        used by some publishers include placing Open Game Content in shaded boxes,        using a different font, italicizing or bolding the Open Game Content,        and segregating all the Open Game Content into specifically designated        chapters or appendixes. Some publishers have released documents that are        identified as being comprised completely of Open Game Content.


"Clearly        identified" means that the system should pass the "reasonable        person" test; meaning that a reasonable person should be able to        determine what portions of a given work are Open Game Content, and which        portions are not. If you can't figure out what parts of a given work are        Open Game Content, provided you exert a reasonable effort to read and        apply the instructions for identification provided by the publisher, then        the material isn't Clearly Identified.


*Q:        What does "potation" mean?*


A: It's        an obscure legal term that means "conversion from one form to another".


*Q:        Why is it in the license?*


A: Wizards        of the Coast's lawyers required that the term be included.


*Q:        What is "an enhancement over the prior art"?*


A: This        term means that Open Game Content cannot be something that is in the public        domain. The idea of a person using a sword and a shield, for example,        is "prior art" - nobody can try to claim that such an idea is        Open Game Content. Calling that person "Conan", and providing        a detailed description of his physical features, history, manner of speaking,        personality, equipment, and actions is an enhancement over the prior art.        If something that is prior art appears in material that is clearly identified        as Open Game Content, it isn't going to be treated as Open Game Content        by the License. If you have questions about whether something identified        as Open Game Content should be considered prior art, you should consult        your legal counsel.


_Note:_        You could take original material that you own and have previously published,        and license it with the OGL as Open Game Content, because you still own        the copyright to that material and it is not considered to be prior art.        Just because something has been published in the past doesn't mean that        it is automatically considered to be prior art.


*Q:        Is Open Game Content limited to just "the game mechanic"?*


A: No.        The definition of Open Game Content also provides for "any additional        content clearly identified as Open Game Content." You can use the        Open Game License for any kind of material you wish to distribute using        the terms of the License, including fiction, artwork, maps, computer software,        etc.


*Q:        What is Product Identity?*


A: Product        Identity is material, otherwise clearly identified as Open Game Content,        that is excluded from the License terms that apply to Open Game Content.


*Q:        How do I identify Product Identity?*


A: Product        Identity must be "clearly identified" just like Open Game Content.


*Q:        If something is clearly identified as both Open Game Content and Product        Identity in the same work, what is it?*


A: Product        Identity.


*Q:        Can a work be derived from both Open Game Content and Product Identity?*


A: Yes,        but since the Open Game License only gives you the right to copy, modify        and distribute Open Game Content, unless you had a separate license from        whomever owned the Product Identity, you cannot legally copy or distribute        a work that contained such material without a separate agreement from        the owners of the Product Identity.


*Q:        If I identify something as Product Identity that was previously distributed        as Open Game Content, does the material become Product Identity?*


A: No.        Once content has been distributed as Open Game Content, it cannot become        Product Identity, even if you are the original creator of the content.


*Q:        If I identify something as Product Identity, then in the future I distribute        that material as Open Game Content, does the material become Open Game        Content?*


A: Yes.        By doing so, you will be relinquishing your claim that the material should        be considered Product Identity.


*Q:        Say I wanted to publish some material that was formatted as in this example:        "Character Name (Stat Block)." How do I keep the Product Identity        separate from the Open Game Content?*


A: You        could clearly identify the Character Name as Product Identity elsewhere        in the work. Assuming that the stat block was derived from other Open        Game Content, the stat block must be clearly identified as Open Game Content        (it will be Open Game Content even if you don't clearly identify it, but        you have the burden to identify such content when you distribute the work).


*Q:        In the example above, could I designate all the text as Open Game Content?*


A: Yes.


*Q:        But that would mean that anyone else could use Character Name in his or        her own material without my permission?*


A: Yes.


*Q:        Who is the "Licensee" referred to as "You" by the        License?*


A: Any        recipient of any material using the Open Game License. In other words,        you become a Licensee when you receive Open Game Content, and anyone you        distribute that content to (or any derivative works based on that content)        also becomes a Licensee. If you want to use the Open Game License in conjunction        with some work that is wholly your own original creation, you become a        Licensee when you first distribute that work using the OGL.


*Q:        What if I distribute material that is Open Game Content, but I don't affix        a notice saying that the Open Game Content can only be Used in compliance        with the OGL?*


A: You        will have breached the terms of the License.


*Q:        Why can't any terms be added or subtracted from the License?*


A: This        clause ensures that each person that you distribute Open Game Content        to will get exactly the same rights that you received when you got the        Open Game Content yourself. Note that this clause means you can't restrict        Open Game Content to "free as in beer" distribution, or limit        who can distribute Open Game Content, or add any other restrictive term.        Likewise, you can't alter the terms of the license to remove sections        that you might find objectionable, like the Product Identity definition.


*Q:        Does this mean that someone could take Open Game Content I wrote and distributed        for free, and then put it in a product and sell that product to someone        else?*


A: Yes.


*Q:        To be clear: Does this mean that Wizards of the Coast could take Open        Game Content I wrote and distributed for free, put it into a Dungeons        & Dragons product and make money off it?*


A: Yes.


*Q:        And they wouldn't have to ask my permission or pay me a royalty?*


A: No.


*Q:        Isn't that pretty unfair?*


A: If        you don't like the terms of the Open Game License, don't publish Open        Game Content. Since the terms of the License are public knowledge, and        they apply to everyone equally, including commercial publishers like Wizards        of the Coast, your decision to use the Open Game License means that you        consent to abide by its terms freely and without coercion. That's about        as fair as anything ever gets.


*Q:        Does Wizards of the Coast get the copyright to my Open Game Content?*


A: No,        they do not. When you distribute Open Game Content, you must assert a        valid copyright either on your own behalf, or on the behalf of whoever        does own the valid copyright on the material. You do so by adding your        copyright information to the COPYRIGHT NOTICE section of the License when        you distribute the License with your Open Game Content.


Wizards        of the Coast has to follow the terms of the Open Game License just like        anyone else. That means that if they want to use Open Game Content that        isn't something they own outright or have a separate agreement with the        copyright holder, they'll have to include a copy of the OGL in the work        where they've used Open Game Content, they'll have to clearly identify        what content is Open Game Content, and they'll have to preserve the COPYRIGHT        NOTICE section of the OGL you used when you distributed your work originally.        You will retain full copyright to your Open Game Content, regardless of        who re-distributes it.


*Q:        What does "Acceptance" mean?*


A: It        means that by Using Open Game Content, you agree to be bound by the terms        of the Open Game License. In order for a contract to be valid and enforceable,        there must be an Offer (in this case, the terms of the License), Acceptance        (in this case, your agreement to be bound by the terms of the License),        and Consideration (in this case, the right to Use Open Game Content).


*Q:        What if I clearly identify something as Open Game Content but I don't        own the copyright to that material or have the permission of the copyright        owner to do so?*


A: You        will have breached Section 5, since you don't have Authority to Contribute.        As a result, the material you clearly identified as Open Game Content        does not become Open Game Content. The legal consequences of doing so        could be quite dire. You should consult with your legal counsel to be        sure that you have the Authority to Contribute anything you intend to        distribute as Open Game Content.


*Q:        What is the COPYRIGHT NOTICE?*


A: The        COPYRIGHT NOTICE is a specific part of the License itself, as opposed        to a general copyright notice that might appear elsewhere in a given work.        The License requires that you combine all the COPYRIGHT NOTICE sections        of each Open Game License you are extracting or deriving Open Game Content        from, and include the consolidated notice with the copy of the Open Game        License you will be distributing.


This        mechanism is the way that proper credit is retained for each person who        contributed some work to the Open Gaming community. No matter how small        the contribution, each and every COPYRIGHT NOTICE propagates forward.


*Q:        Why can't I indicate compatibility with a Trademark or a Registered Trademark?*


A: The        Open Game License expands the control a Trademark owner has over your        ability to use that Trademark beyond the restrictions normally allowed        by trademark law. The explicit reason this clause is included in the Open        Game License is to stop people from saying that their Open Game Content        is compatible with *Dungeons & Dragons*, or any other Wizards        of the Coast game, without getting permission from Wizards of the Coast        first. Of course, the clause is generic, so you can't indicate compatibility        with any other company's trademarks either unless you get their permission        first.


*Q:        Doesn't this conflict with the definition of an Open Game?*


A: No,        it does not. You are not restricted from freely copying, modifying or        distributing the Open Game Content itself. Your freedom to Use the Open        Game Content is not restricted, except to the extent that you cannot indicate        compatibility or co-adaptability with someone else's Trademark or Registered        Trademark.


The rationale        behind this clause is related to the value of the material covered by        the Open Game License. Companies (and individuals) spend a lot of time        and effort to create and establish Trademarks that others recognize in        the marketplace. By restricting your right to indicate compatibility or        co-adaptability with other people's Trademarks, the License recognizes        that the value of those Trademarks is separate from the value of the Open        Game Content itself. If you want to tap into the value represented by        a given Trademark, you will need to negotiate a separate agreement with        the Trademark holder for that privilege.


*Q:        My understanding of Trademark law is that it is legal for me to indicate        compatibility or co-adaptability with a Trademark so long as I don't dilute        the mark, confuse consumers about the ownership of the mark, or attempt        to claim ownership of the mark. How can the OGL stop me from using a Trademark        in a way that is otherwise completely legal?*


A: The        terms of the Open Game License supercede the terms of general Trademark        law. By agreeing to accept the Open Game License, gaining the benefit        of the consideration of being able to use Open Game Content under the        terms of the OGL, you limit certain other rights that you might otherwise        have.


*Q:        What happens if I go ahead and indicate compatibility or co-adaptability        with a Trademark I don't have permission to use?*


A: You        will be in breach of the Open Game License. You might also find yourself        being sued by the owner of the trademark in question, under regular trademark        law. If you have any question about your ability to use a Trademark owned        by someone else, you should consult your legal counsel.


*Q:        I want to make a product that claims compatibility with someone else's        Trademark, and uses Open Game Content. I'm going to put the Open Game        Content in a separate booklet in a box, and only use the Trademark on        the packaging on the box. Can I get away with this?*


A: No.        The terms of the Open Game License extend to the whole work. If you have        questions about the technical legal definition of a "work",        consult your legal counsel.


*Q:        Do I really have to include a copy of the whole license when I distribute        Open Game Content?*


A: Yes,        you do.


*Q:        Can I include one copy of the license in a work with many separate portions        that are Open Game Content?*


A: Yes,        so long as the copy of the License you include contains a complete and        full list of all the COPYRIGHT NOTICE sections from all the source material.


*Q:        What if I'm writing an email message or using a very small amount of Open        Game Content?*


A: Technically,        you are still required to include a copy of the License text. In the real        world however, you are unlikely to be sued by someone over the use of        Open Game Content in an email message or other trivial use if you fail        to do so.


*Q:        I want to create a website that contains many different pages with Open        Game Content. Do I have to include a copy of the License on every page?*


A: It        will be sufficient to include a link on every page containing Open Game        Content to one centralized copy of the License.


*Q:        I want to distribute computer software using the OGL. Is that possible?*


A: Yes,        it's certainly possible. The most significant thing that will impact your        effort is that you have to give all the recipients the right to extract        and use any Open Game Content you've included in your application, and        you have to clearly identify what part of the software is Open Game Content.


There        are two obvious ways of doing so. The first is to distribute the source        code that contains Open Game Content in a human-readable format. The second        is to design your application so that all the Open Game Content sits in        human-readable data files that are read and processed by your application        at runtime.


The Open        Gaming License has not evolved a good strategy for handling the distribution        of computer game software or applications designed to combine proprietary        game software with Open Game Content. At this time, if you choose not        to distribute the source of your application using a license that meets        the Open Source Definition, you are probably not going to be able to use        the Open Game License either.


You should        be especially aware of the potential of rendering your entire program        a derivative work of Open Game Content, which might require you to release        the whole source for your program under the terms of the OGL. If you are        using materials that you don't have the authority to contribute as Open        Game Content (like third-party libraries), you may not be able to distribute        your work at all. You should consult your legal counsel before proceeding        if you have any concerns about your ability to comply with the OGL.


*Q:        I want to distribute a magazine that contains Open Game Content. Is that        possible?*


A: Yes,        it is. Simply include a copy of the OGL with each copy of the magazine        and be sure to clearly identify which parts of the magazine are Open Game        Content. You will also have to be aware of the issue of indicating compatibility        or co-adaptability with other trademarks, and be sure you have the appropriate        rights for any such claim that you make.


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## Sorcerers Apprentice (Dec 26, 2022)

Sacrosanct said:


> This isn’t always true either. Derivative work is tricky and can be a grey area. It would be up to a court to decide based on several factors. If it appears you’re trying to game the system for profit, it probably won’t end well for you.



There's no such thing as a derivative trademark. Trying to use trademark law to claim ownership of something you're not entitled to is already gaming the system.


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## pogre (Dec 27, 2022)

Sacrosanct said:


> Before using anyone's IP, I'd highly suggest people do their due diligence and ask an expert rather than assuming.




Best advice in the thread...


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## Sacrosanct (Dec 27, 2022)

Sorcerers Apprentice said:


> There's no such thing as a derivative trademark. Trying to use trademark law to claim ownership of something you're not entitled to is already gaming the system.



I notice your unintentional ironic use of entitled in this statement.


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## Sorcerers Apprentice (Dec 27, 2022)

Sacrosanct said:


> I notice your unintentional ironic use of entitled in this statement.



explain?


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## Sacrosanct (Dec 27, 2022)

Sorcerers Apprentice said:


> explain?



It appears that you’re saying the creator/legal IP holder is not entitled to the rights, while inferring that others can do what they want with it as long as numbers are filed off. If that isn’t correct, please clarify for me. 

Tell you what. Take the image of darth Vader (trademarked), create an action figure or write a game with that likeness, and sell it and see what happens. Even if you change the name to Garth Tater. Maybe you’ll be fine. Lucas was notorious with being OK with parodies, but Disney not so much. Especially something not a parody but a similar product competing in the same marketplace. I sure as heck wouldn’t take that risk myself. 

Paizo and others have gotten away with using the likeness of beholders and mind flayers because the names are protected, but their images aren’t trademarked to the best of my knowledge. Which goes back to my original point. Trademark and copyright are different. And people shouldn’t assume they are or that fair use gives them permission (because they might also be under trademark).


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## Sorcerers Apprentice (Dec 27, 2022)

Sacrosanct said:


> It appears that you’re saying the creator/legal IP holder is not entitled to the rights, while inferring that others can do what they want with it as long as numbers are filed off. If that isn’t correct, please clarify for me.



Ah yeah that's what I meant. But there's nothing ironic about that, it's the law.

I've got no plans of making any Wtar Sars figures though. No business case for that, people want the real thing when it comes to such famous characters.


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## Sacrosanct (Dec 27, 2022)

Sorcerers Apprentice said:


> Ah yeah that's what I meant. But there's nothing ironic about that, it's the law.



No, that's not the law.  There is some grey area around Fair Use, but that's separate from Trademarks (which you yourself even admitted earlier).  It seems very strange to me that you'd argue that the creator/legal IP holder doesn't have rights to their work, but the public does.  IANAL, and I assumed you weren't either.  Perhaps I was wrong about that assumption.  But I can't find anywhere in the law that states the legal rights holder doesn't have rights and IP is available for anyone to use as long as you file off the #s under both copyright _and _trademark laws.  My understanding is that things like The Lanham Act do the opposite of what you're assumptions of the law is.

As I mentioned earlier, filing serial #s does not work to circumvent trademark infringement.  The very first bullet point is:


How similar the marks are. *They do not have to be identical.*

But again, while sometimes copyright and trademark infringement are clear yes or no, there is a lot of grey area, and people should talk to an attorney.


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## Jerik (Friday at 3:42 AM)

Abstruse said:


> I can't think of a single monster that's not already designated WotC IP (beholders, mind flayers, etc.) that _are _in the SRD but _are not _in the public domain from their use in folklore.




You can't?  I sure as heck can.

Aboleths.  Ankhegs.  Bulettes.  Driders.  Gibbering mouthers.  Glabrezu. Gricks.   Hezrou.  Otyughs.  Remorhazes.  Ropers.  Rust monsters.  Sahuagin.  Vrocks.  Xorns.

All in the SRD.  All original D&D monsters.  None of those are in the public domain.

This is not _nearly _an exhaustive list.


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## Sacrosanct (Friday at 3:53 AM)

Jerik said:


> You can't?  I sure as heck can.
> 
> Aboleths.  Ankhegs.  Bulettes.  Driders.  Gibbering mouthers.  Glabrezu. Gricks.   Hezrou.  Otyughs.  Remorhazes.  Ropers.  Rust monsters.  Sahuagin.  Vrocks.  Xorns.
> 
> ...



Funny enough, Tim Kask owns the rights to the Bulette. The way the rights went in those first days of Dragon magazine, most reverted back to the creator. He advised as such as recently as a few weeks ago. 

So I think it would be hilariously funny if Tim exercised his rights and WoTC had to pull all references to the Bulette.


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## Greg Benage (Friday at 3:54 AM)

Sacrosanct said:


> So I think it would be hilariously funny if Tim exercised his rights and WoTC had to pull all references to the Bulette.



_Landshark_!


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## ersatzphil (Friday at 3:59 AM)

Sacrosanct said:


> Funny enough, Tim Kask owns the rights to the Bulette. The way the rights went in those first days of Dragon magazine, most reverted back to the creator. He advised as such as recently as a few weeks ago.
> 
> So I think it would be hilariously funny if Tim exercised his rights and WoTC had to pull all references to the Bulette.



"The Curmudgeon in the Cellar strikes again!"

_::Hasbro exec angrily shakes his fist at the sky::_


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## Lidgar (Friday at 4:14 AM)

ersatzphil said:


> "The Curmudgeon in the Cellar strikes again!"
> 
> _::Hasbro exec angrily shakes his fist at the sky::_


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## rknop (Monday at 3:53 AM)

DEFCON 1 said:


> It seems to me that at the end of the day WotC created a big playground for people to use (OGL) which people have done so for years.  But now, they are creating a smaller playground within the bigger one that will include more rules (1.1).  People of course are rightly asking why they would want to play in the smaller section WotC has cordoned off, rather than just stay in the big section... and right now there doesn't seem to be an answer yet.



Most of the uproar is over the fact that WotC is trying to close the bigger playground.

They're not creating a smaller playground within a bigger playground.  They're trying to close the playground (that the FAQ in the OP says they can't do), and replace it with a much more restrictive (and, frankly, unsafe) playground.


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## DEFCON 1 (Monday at 12:53 PM)

rknop said:


> Most of the uproar is over the fact that WotC is trying to close the bigger playground.
> 
> They're not creating a smaller playground within a bigger playground.  They're trying to close the playground (that the FAQ in the OP says they can't do), and replace it with a much more restrictive (and, frankly, unsafe) playground.



You are quoting a post I made back in December before all this current brouhaha came about with the leaks in January.


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## CapnZapp (Tuesday at 2:25 PM)

Here's an even shorter FAQ.

*Q. Should I avoid the OGL like the plague?*
A. Yes. You should act as if all your current and future plans for D&D-related gaming materials, any edition, are suddenly turned into poison ash. You need to look for a completely different ruleset and set your gaming material in worlds unrelated to anything TSR or WotC have ever produced. And you need to accomplish this shift by the 13th of January this year. Good luck!


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