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



## doctorbadwolf

I've seen a lot of vague indications that no one really knows for sure, ie it isn't settle law, but I know we have some lawyers around here who are pretty knowledgeable, and could possibly posit some ideas?

So, as someone who is planning to publish a game within the next year or two (the pandemic pushed things back bc my work was busier than it's ever been, and I've been working 50+ hours a week), I have to wonder, what DnDisms are _actually_ DnDisms, and what is "just mechanics" or otherwise generic enough it can't be protected by copyright? 

Like, if I use action, movement, and bonus action, as my action economy, is that in the danger zone? 

What about, like, the 6 stats, even if a couple are renamed and they work differently from any edition of dnd?


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## mamba

The correct answer is 'no one knows'. IANAL I'd say your action economy might be an issue, having the same number of attributes probably isn't, unless you just rename Constitution to Physique or so and all 6 are functionally the same as D&D's


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## Tales and Chronicles

After reading a of this stuff in the past few days, I came to the conclusion than it would probably be possible to rebuild 5e without the 5e SRD if you are careful about your terminology and the specific expression of your rules.

If your stats works differently, just sharing the name of a game mechanic from D&D should not be too much of a problem. Same thing for your action economy: sharing the names is not too bad, but if they work essentially the same as the D&D ones that could be considered as going too far.


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## Lanefan

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

As for actual mechanics, terms, or rules I have no idea.


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## doctorbadwolf

Tales and Chronicles said:


> After reading a of this stuff in the past few days, I came to the conclusion than it would probably be possible to rebuild 5e without the 5e SRD if you are careful about your terminology and the specific expression of your rules.



Yeah probably. Honestly with like 6 classes at least halfway done, I’m tempted to put out a game that reworks anything that seems protected, and put it out…

But I don’t need a second rpg to build lol


Tales and Chronicles said:


> If your stats works differently, just sharing the name of a game mechanic from D&D should not be too much of a problem. Same thing for your action economy: sharing the names is not too bad, but if they work essentially the same as the D&D ones that could be considered as going too far.



Yeah I may drop Charisma, anyway, and I have Wits and Will which are genuinely different from Int and Wis. I think I’m fine there. 

For the action economy, turns and rounds don’t even work the same as D&D, much less actions. But you do have 1 action per round, can move any time you do anything else up to a total of your speed in yards, and you have 2 quick actions which can be used alongside actions on your “turn” (which is really just there to be where you use actions, where you can use all your movement if you want, where things start or end for different effects) of to interrupt or react to something. Each rounds has 3 phases, and the team with the initiative chooses turn order each phase. 


Lanefan said:


> For ironclad sure there's a dozen or so specific monsters that are at least name-protected (Bulette, Beholder, and Yuan-Ti are three).  Some you could easily enough reinvent - I mean, part-human part-reptile creatures is a trope that's been around for ages so refluffing and renaming Yuan-Ti should be trivially easy to do - but others (e.g. Beholder) would be much harder to pull off without it being an obvious ripoff of the original.
> 
> As for actual mechanics, terms, or rules I have no idea.



Anything with a proper noun, for sure, unless it’s definitely a generic term like Druid or thief.


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## Paul Farquhar

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

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


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## Zardnaar

Paul Farquhar said:


> Six ability scores: Traveller has had them since 1977, and they are somewhat similar to D&D: Strength, Dexterity, Endurance, Intelligence, Education and Social Standing.
> 
> Come to think about it, the order listed is similar to the order in modern D&D, but not the order of D&D at the time. You could argue D&D copied Traveller.




 D&D 1974

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

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

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

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


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## Paul Farquhar

Zardnaar said:


> D&D 1974



If I remember correctly, D&D originally listed ability scores in the order STR, INT, WIS, DEX, CON, CHA. It later switched to physical first then mental, copying Traveller.


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## Zardnaar

Paul Farquhar said:


> If I remember correctly, D&D originally listed ability scores in the order STR, INT, WIS, DEX, CON, CHA. It later switched to physical first then mental, copying Traveller.




 Ah gotcha derp. 

 I've been thinking of a very simplev2d6 system for a while using modifiers instead. 

 -1, 0, 0, +1, +2, +3 as stats and they top out at +3. 

DCs 
Very Easy 3
Easy 5
Moderate 7
Hard 9
Very Hard 11

 I'm sure you can see where this is going.


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## Yora

The SRD text itself should be entirely protected by copyright. WotC giving other people permission to use the text in commercial and noncommercial works in its original form or altered does not in any way reduce their copyright to the SRD text.

When it comes to creating new original text from scratch that describes the same game mechanic, I believe the issue is no longer about copyright specifically.

When it comes to names and terms, I think this might actually fall under the case of trademarks. Which I believe is why lots of retroclones have monsters that are functionally straight up beholders but don't use the name beholders.

(Though then there's of course the whole space of plagiarism and I really have no clues what the laws on that might be.)


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## see

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

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


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## LordEntrails

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


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## mamba

Lanefan said:


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



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


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## Dreamscape

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


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## mamba

LordEntrails said:


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



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


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## Benjamin Olson

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

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

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

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

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


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## UngainlyTitan

mamba said:


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



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


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## jgsugden

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

My views on the topic:

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

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

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

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

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


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## Clint_L

jgsugden said:


> If you're interested in this topic there are a few good Youtube videos on it out there if you hunt for them.
> 
> My views on the topic:
> 
> There are two relevant content groupings to worry about: A.) What IP WotC/Hasbro would be able to protect in court, and B.) What they'd sue over even if they were not so sure they could win because the nuisance of suing you might get them what they want.
> 
> In terms of what they could protect in court: This is unknown.  Them granting licenses to others has meant that the IP covered by the grant hasn't been under contention.  Without contention, you won't know the boundaries.  There are some real solid limitations on what can be protected with IP laws, and what can't - and how they work in a given environment is something that will be worked out over time once there is contention.
> 
> In terms of what they might attempt to protect that they might not be able to successfully protect in court: There is a lot of nuisance IP law suits out there, but the bang has to be worth the buck.  For WotC to actually take you to court and sue you the combination of the chance and benefit of winning has to overcome the chance and detriment of losing - and both have to be balanced against the status quo of doing nothing more than a cease and desist.  Some of the biggest factors in determing what would make it worthwhile in their eyes are going to depend upon their own internal plans for the future.  To that extent, trying to predict what they might go after is a fools errand.
> 
> In the end, they'll want people to give them their cut, but will not want to go to court over it.  To that end, I think the compromise they'll find is that the OGL will have a revenue cap.  If you exceed the cap, you pay.  However, if you pay, you get perks including accress to additional IP from WotC to use, cross promotion by Wotc, access to selling your product within the official WotC VTT, etc...
> 
> The big risk for WotC is that there are enough people out there with a heavy stake in having an accessible RPG that they can use as a base to sell their products against.  Someone will generate the next Pathfinder that cuts D&D off at the knees by giving a similar quality of game play with greater freedom to use by 3P.  I can't imagine they'd take that risk given their current position.



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


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## doctorbadwolf

Paul Farquhar said:


> Six ability scores: Traveller has had them since 1977, and they are somewhat similar to D&D: Strength, Dexterity, Endurance, Intelligence, Education and Social Standing.
> 
> Come to think about it, the order listed is similar to the order in modern D&D, but not the order of D&D at the time. You could argue D&D copied Traveller.



Interesting!


Zardnaar said:


> D&D 1974
> 
> Basically if it's in an edition of D&D it might not be safe at least in expression.
> 
> The 6 ability bscores might be safe but +1 at 12/13, +2 at 14/15 etc might not be.
> 
> If the IGL goes away if it's in an edition of D&D it might bit be safe beyond basic names. Copying any specific mechanic or expression of it could be messy.
> 
> Playing it safe I wouldn't make it class based.



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


Dreamscape said:


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



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


Benjamin Olson said:


> Ultimately there is a huge amount of the rules content of the SRD that only a court could decide on WotC's rights to stop you from using. You can get a lawyer to research and opine on the merits, but really the most meaningful advice a lawyer is likely to give you is not about what they think a court would probably decide (as that is ultimately pretty hard to predict for the majority of SRD material), but what is likely to make WotC think _you_ are worth noticing, trying to bully with demand letters, or even making the nontrivial investment of taking to court. Games are created everyday with elements that D&D's rightsholders probably had a colorable claim to sue over (at some point in the history of the game at least), but even TSR in their most sue-happy days they _generally_ didn't sue over use of similar mechanics (they did sue to try to stop Gygax's _Dangerous Journeys_ and made many ludicrously aggressive claims in that action to more or less have a patent on ability scores and the like, but the reason that was targeted was fundamentally because they felt the Gygax name would cause brand confusion and because they had a vendetta with the man).
> 
> I would say that at this point ability scores, even the specific 6 D&D ones, have been used and abused in too many contexts for WotC to realistically try to pick on you specifically over their fairly dubious copyright to six English words. The same applies to the specific classes of 5e (though not the specific mechanics thereof), even if you were to use the very same 12 (which it sounds like you don't intend to).



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


Benjamin Olson said:


> This is not saying they wouldn't bring up these similarities if they were trying to shut you down for things they have firmer grounds for, just that amongst all the panoply of games and media using these D&D concepts (along with a few other things that have gained broader cultural impact like, say, the alignment system), singling out you for a lawsuit on the basis of things they have a pretty questionable case on makes very little sense.
> 
> The specific 5e action economy, however, is pretty unique to that specific D&D system and has not really filtered out into general use. A similar system with different names is almost certainly fine because on a basic level it is pretty generic to the limited number of ways that turned-based tabletop gaming could simulate combat and not very different from some other systems, but adopting their system wholesale is asking for trouble. If a game that was also using the ability scores and some of the same classes, also used literally the same action economy that is the sort of thing WotC is likely to identify as an infringement they need to protect against. And honestly, I like the 5e system well enough for the most part but I'm betting you could do better having years of experience with it and not being beholden to maintaining it like the current WotC design team.
> 
> Spells are troublesome because some are clearly very generic (Invisibility), some were perhaps less generic when D&D adopted them, but at this point you would hardly have a game involving magic without (Fireball) some that are fairly fanciful and specific (Magnificent Mansion, even if it doesn't belong to Mordenkainen), and one that is pretty specific but that they stole from Jack Vance (Prismatic Spray, though they diminished the theft somewhat by watering it down from his superior "Excellent Prismatic Spray"). That analysis is really more on the trademark merits than the copyright merits, but the two areas of intellectual property law blend together when you get into a situation like this.
> 
> Ultimately I would err on the side of using those game elements where, upon giving it serious thought you honestly can't think of anything that suits your needs better, and making the rest up yourself. But copying the ability score system outright (if you like it) might be worth the (probably) minimal risk, since it makes your game substantially more compatible with the vast number of existing D&D and derivative modules.



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

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


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## pemerton

@doctorbadwolf 

This court case seems relevant to your question: DaVinci Editrice S.R.L. v. ZiKo Games, LLC


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## doctorbadwolf

pemerton said:


> @doctorbadwolf
> 
> This court case seems relevant to your question: DaVinci Editrice S.R.L. v. ZiKo Games, LLC



That is very interesting! Thank you!


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## FrogReaver

LordEntrails said:


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



Lol.  Probably.  But also, judging by all the different lawyer's reactions and thoughts I've seen on the topic, you've probably got about as good a chance picking one of us non-lawyers and us being right as you do with picking one lawyer and having his opinion be right.


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## teitan

Wizards already defined what was IP and what wasn’t and trademarked what was in 2000 and the years since. They’ve pulled a Kleenex in my opinion. 

Kleenex used to be a trademark and it no longer is because the Kleenex corporation failed to defend the trademark for so long that when another company launched calling their brand of tissue paper Kleenexes and they tried to sue the Kleenex corporation lost and could not enforce their rights to the name or use it in their logo etc. 

Wizards failed to enforce their claim to their IP, in fact, they gave it away in the SRD with the OGL and Re-enforced it with the lack of a System Trademark License for 5e and by just using the OGL and adding some 5e terms to the SRD. It’s arguable in court that when they released the material included in the SRD and did not identify it as IP that they allowed it into fair use as it is therein defined. Only allowing for the specific names, characters, campaign settings for example, to remain IP and the limited monsters that define D&D like Beholders and Mind Flayers also remaining in their control by virtue of not being in the SRD. Their recorded stance for 22 years has been that they couldn’t revoke the OGL and it was structured and written to be forever so that the game will always exist. 

Pathfinder is an example of just this exact thing and it does not in any way violate Wizard’s IP. Castles & Crusades is another example, it can be argued that Wizards yanked their Seige engine (not OGC) for their save & proficiency system, possibly violating their IP. The list goes on and on of the OGL enabling this aspect of the stated intent by Wizards and their development team and their legal statements in that regard for 22 years. 

Now they’re claiming that people are making a profit of their IP. No, no, no, no. There is no IP in the SRD or allowed in usage by OGL. If someone is making a profit of their IP through 3pp then it’s a violation of the OGL and Wizards is at fault as well because… Wizards is ignorant of their own Open license, as evidenced by the leaked 1.1. 

The term OGL has been profanely used to vulgarly, and I don’t mean in the perverse or religious sense, gosh, to refer to a string of licenses that WOtC offered and long time members of these boards know what I mean. The OGL is just a one page text defining how Open Gaming under that particular license works and how to define it vs IP and publish with the license. It has come to mean 3pp for D&D during the 5e era. 

Where Wizards has shot themselves on this in my opinion is that they didn’t take the care that they did with 3.x. In 3.x they had the OGL and the System Trademark License. If you wanted to publish content advertised as compatible or for use with D&D you had to use both licenses. The OGL to indicate use of the SRD and what was OGC and what was you IP in the product and the STL to indicate compatibility and use with D&D and the STL was more restrictive in its use. Closer to the 1.1 leak and it protected Wizards from liability and harm from less than reputable 3pp while not demanding royalties, registration and essentially things that harm the rest of the industry. For some reason, when returning to using the OGL for 3pp they did not create a compatibility license and logo so any Tom, Dick and Harry could create content for 5e and less knowledgeable or caring folk were definitely using Wizards IP as well since they could just pull out a Monster Manual and ASSUME it was fair game. Wizards wasn’t careful with 5e and 3pp so the last 10 years the cat has been shredding the license and it’s their own fault and their legal team hasn’t a clue what their going on about because they’ve obviously mixed all these things up and assumed OGL=D&D and not Fate, Star Wars (good luck Hasbro, you’re going to have a hard time fighting that one), Dragon Age (first game was built off KOTOR engine, OGL and SRD derived), Year Zero Engine and all the other games that have been released under the license that Wizards assured everyone for 22 years would not end and that their IP was protected. Oops.


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## FrogReaver

teitan said:


> Wizards already defined what was IP and what wasn’t and trademarked what was in 2000 and the years since. They’ve pulled a Kleenex in my opinion.
> 
> Kleenex used to be a trademark and it no longer is because the Kleenex corporation failed to defend the trademark for so long that when another company launched calling their brand of tissue paper Kleenexes and they tried to sue the Kleenex corporation lost and could not enforce their rights to the name or use it in their logo etc.
> 
> Wizards failed to enforce their claim to their IP, in fact, they gave it away in the SRD with the OGL and Re-enforced it with the lack of a System Trademark License for 5e and by just using the OGL and adding some 5e terms to the SRD. It’s arguable in court that when they released the material included in the SRD and did not identify it as IP that they allowed it into fair use as it is therein defined. Only allowing for the specific names, characters, campaign settings for example, to remain IP and the limited monsters that define D&D like Beholders and Mind Flayers also remaining in their control by virtue of not being in the SRD. Their recorded stance for 22 years has been that they couldn’t revoke the OGL and it was structured and written to be forever so that the game will always exist.
> 
> Pathfinder is an example of just this exact thing and it does not in any way violate Wizard’s IP. Castles & Crusades is another example, it can be argued that Wizards yanked their Seige engine (not OGC) for their save & proficiency system, possibly violating their IP. The list goes on and on of the OGL enabling this aspect of the stated intent by Wizards and their development team and their legal statements in that regard for 22 years.
> 
> Now they’re claiming that people are making a profit of their IP. No, no, no, no. There is no IP in the SRD or allowed in usage by OGL. If someone is making a profit of their IP through 3pp then it’s a violation of the OGL and Wizards is at fault as well because… Wizards is ignorant of their own Open license, as evidenced by the leaked 1.1.
> 
> The term OGL has been profanely used to vulgarly, and I don’t mean in the perverse or religious sense, gosh, to refer to a string of licenses that WOtC offered and long time members of these boards know what I mean. The OGL is just a one page text defining how Open Gaming under that particular license works and how to define it vs IP and publish with the license. It has come to mean 3pp for D&D during the 5e era.
> 
> Where Wizards has shot themselves on this in my opinion is that they didn’t take the care that they did with 3.x. In 3.x they had the OGL and the System Trademark License. If you wanted to publish content advertised as compatible or for use with D&D you had to use both licenses. The OGL to indicate use of the SRD and what was OGC and what was you IP in the product and the STL to indicate compatibility and use with D&D and the STL was more restrictive in its use. Closer to the 1.1 leak and it protected Wizards from liability and harm from less than reputable 3pp while not demanding royalties, registration and essentially things that harm the rest of the industry. For some reason, when returning to using the OGL for 3pp they did not create a compatibility license and logo so any Tom, Dick and Harry could create content for 5e and less knowledgeable or caring folk were definitely using Wizards IP as well since they could just pull out a Monster Manual and ASSUME it was fair game. Wizards wasn’t careful with 5e and 3pp so the last 10 years the cat has been shredding the license and it’s their own fault and their legal team hasn’t a clue what their going on about because they’ve obviously mixed all these things up and assumed OGL=D&D and not Fate, Star Wars (good luck Hasbro, you’re going to have a hard time fighting that one), Dragon Age (first game was built off KOTOR engine, OGL and SRD derived), Year Zero Engine and all the other games that have been released under the license that Wizards assured everyone for 22 years would not end and that their IP was protected. Oops.



Yea, i do wonder whether deauthorizing the OGL (assuming it's a total deauthorization) opens up WOTC to claims of Fraud from many of those companies you mention.


----------



## pemerton

teitan said:


> Wizards failed to enforce their claim to their IP, in fact, they gave it away in the SRD with the OGL and Re-enforced it with the lack of a System Trademark License for 5e and by just using the OGL and adding some 5e terms to the SRD. It’s arguable in court that when they released the material included in the SRD and did not identify it as IP that they allowed it into fair use as it is therein defined.



This isn't arguable. WotC haven't failed to enforce their claims to their IP - they have constantly asserted it, and nearly everyone who has published a D&D-related product in the past 20 years has included a section 15 statement expressly acknowledging WotC's copyright in their SRD.



teitan said:


> Pathfinder is an example of just this exact thing and it does not in any way violate Wizard’s IP. Castles & Crusades is another example



These publishers used the OGL. They expressly acknowledged WotC's IP, and were licensed by WotC to reproduce their copyrighted text.



teitan said:


> Where Wizards has shot themselves on this in my opinion is that they didn’t take the care that they did with 3.x. In 3.x they had the OGL and the System Trademark License. If you wanted to publish content advertised as compatible or for use with D&D you had to use both licenses.



I don't know of any evidence that WotC has failed to protect their trademarks since they revoked the D20 system licence. They are currently suing another company and associated persons in order to protect some of their trademarks.


----------



## pemerton

FrogReaver said:


> Yea, i do wonder whether deauthorizing the OGL (assuming it's a total deauthorization) opens up WOTC to claims of Fraud from many of those companies you mention.



Why would anyone sue for fraud? They want IP permissions, not damages (I assume) and the same evidence that would suggest fraud would probably establish an estoppel which would give them what they want.


----------



## FrogReaver

pemerton said:


> Why would anyone sue for fraud? They want IP permissions, not damages (I assume) and the same evidence that would suggest fraud would probably establish an estoppel which would give them what they want.



That's fair, but more importantly, why didn't you answer my question?


----------



## Paul Farquhar

doctorbadwolf said:


> Interesting!



What I think it really means is the answer to your question is "how good is your lawyer?" I only know that because I was playing AD&D and Traveller at the time and have a fairly good memory.


----------



## pemerton

FrogReaver said:


> That's fair, but more importantly, why didn't you answer my question?



You mean "whether deauthorizing the OGL (assuming it's a total deauthorization) opens up WOTC to claims of Fraud from many of those companies you mention"?

I don't know much about the tort of fraud in US jurisdictions. I also don't know what "total deauthorisation" means - if you are talking about WotC exercising a legal power that it enjoys, then that can't be fraudulent unless it raises an estoppel or similar sort of claim. This is one of the thoughts that underpinned my reply just upthread.


----------



## Paul Farquhar

pemerton said:


> I don't know of any evidence that WotC has failed to protect their trademarks since they revoked the D20 system licence.



As further evidence, my I enter _Knights of the Old Republic_? This uses a D20 based ruleset (although I don't know if it was licenced at the time). It has D&Ds ability scores, with the same range and bonus system, classes levels, hp, sneak attack D6's etc.

You can still legally buy KotOR.


----------



## pemerton

Paul Farquhar said:


> As further evidence, my I enter _Knights of the Old Republic_? This uses a D20 based ruleset (although I don't know if it was licenced at the time). It has D&Ds ability scores, with the same range and bonus system, classes levels, hp, sneak attack D6's etc.
> 
> You can still legally buy KotOR.



What WotC-owned trademark does KoTOR use without a licence?


----------



## Paul Farquhar

pemerton said:


> What WotC-owned trademark does KoTOR use without a licence?



As I said, I don't know if they used the D20 (third edition) licence or not, but if it's not licenced, it ripped off a whole lot of core D&D design elements unchallenged, and if it is, that licence is no longer current.


----------



## FrogReaver

pemerton said:


> You mean "whether deauthorizing the OGL (assuming it's a total deauthorization) opens up WOTC to claims of Fraud from many of those companies you mention"?
> 
> I don't know much about the tort of fraud in US jurisdictions. I also don't know what "total deauthorisation" means - if you are talking about WotC exercising a legal power that it enjoys, then that can't be fraudulent unless it raises an estoppel or similar sort of claim. This is one of the thoughts that underpinned my reply just upthread.



Makes more sense.  

I was thinking 2 things with my question.

1.  If WOTC did win on their deautorizaiton/revocation OGL claims, then all their statements to the contrary that stood online for years would be evidence that they deceived and misled the users of the OGL.  So worst case for 3pp is they could likely be reimbursed for loses due to the change.  In fraud in the U.S. it clearly matters what promises and reassurances were made to a person.  This potential for a fraud claim also provides 3pp some leverage over the OGL situation.

2.  As a legal strategy for the community it might be easier to pursue the fraud claims first.  Fraud claims wouldn't be required to wait on individualized action from WOTC - their statement that it's deauthorized/revoked and any monetary damage afterwards due to trying to comply would be enough for standing according to my understanding.  It puts WOTC on defense so to speak and prevents them from targeting companies 1 at a time.  Also, the chance a fraud claim succeeds in this situation seems higher than the chance the license claims succeed.  Not that the contract case isn't good, but the fraud case is a slam dunk.  After some company has done this, another could challenge the legitimacy of WOTC's interpretation of the OGL assuming WOTC even wants to push the issue at that point.  If WOTC did sue any other company for copyright infringement for using OGL 1.0a still they would then countersue for fraud while also defending against WOTC's claims.


----------



## Clint_L

I don't know much about the law but I know that proving fraud is a lot more complicated than you are suggesting, and the notion a fraud case would be "a slam dunk" seems highly, highly, unlikely. None of the actual lawyers who have been discussing these issues have made any mention about fraud.

Fraud is a serious charge, potentially a felony, and I would be very, very cautious about throwing that word around. I remind again that Hasbro/WotC have plenty of talented lawyers, so it's not like they are just going to commit fraud by accident or something. Non-lawyers opining on legal issues is not really helpful, IMO.


----------



## teitan

pemerton said:


> This isn't arguable. WotC haven't failed to enforce their claims to their IP - they have constantly asserted it, and nearly everyone who has published a D&D-related product in the past 20 years has included a section 15 statement expressly acknowledging WotC's copyright in their SRD.
> 
> These publishers used the OGL. They expressly acknowledged WotC's IP, and were licensed by WotC to reproduce their copyrighted text.
> 
> I don't know of any evidence that WotC has failed to protect their trademarks since they revoked the D20 system licence. They are currently suing another company and associated persons in order to protect some of their trademarks.



I’m talking about in the context of what’s in the SRD. Context man. If someone published something just because it was in the monster manual and Wizards failed to catch it was just an example of the ONLY way the OGL could arguably possibly be used to justify using their IP. You’re argument seems to be everyone pays attention to the nearly 400 page SRD.


----------



## pemerton

Paul Farquhar said:


> As I said, I don't know if they used the D20 (third edition) licence or not, but if it's not licenced, it ripped off a whole lot of core D&D design elements unchallenged, and if it is, that licence is no longer current.



Are you talking about the video game? The Wikipedia page includes the following quote from one of the production team: "We wanted to create something that combined the strategic aspects of our _Baldur's Gate_ series and _Neverwinter Nights_ but which presented it through fast, cinematic 3D action".

This makes me assume that Bioware had a licence from TSR and/or WotC.


----------



## teitan

Paul Farquhar said:


> As I said, I don't know if they used the D20 (third edition) licence or not, but if it's not licenced, it ripped off a whole lot of core D&D design elements unchallenged, and if it is, that licence is no longer current.



It didn’t use the D20 STL and wouldn’t now because it’s been rescinded.


----------



## Paul Farquhar

teitan said:


> It didn’t use the D20 STL and wouldn’t now because it’s been rescinded.



So you can argue based on KotOR that the vast majority of third edition rules are public domain. And hence anything in 5e or OneD&D that is the same as 3e (such as ability scores, hit points, armour class, sneak attack damage etc) is also public domain.


doctorbadwolf said:


> Like, if I use action, movement, and bonus action, as my action economy, is that in the danger zone?
> 
> What about, like, the 6 stats, even if a couple are renamed and they work differently from any edition of dnd?



You are fine using any of this.


----------



## Zardnaar

pemerton said:


> What WotC-owned trademark does KoTOR use without a licence?




 If OGL goes away it's ability score system,  skill system, feats and class structure are from 3.0.


----------



## Paul Farquhar

Zardnaar said:


> If OGL goes away it's ability score system,  skill system, feats and class structure are from 3.0.



It's the idea that WotC can make the OGL "go away", no matter how much they might want it to, that would never stand up to legal test. The most they can do is try and pressure future publications to use the new licence.

And I'm pretty sure WotC has no interest in trying to pursue anything retroactively in any case. Horses that are already out of the barn when the door is closed are free for anyone to use.


----------



## Paul Farquhar

pemerton said:


> This makes me assume that Bioware had a licence from [] WotC.



One might think that, but I haven't seen any evidence that this is the case (and I have looked). My suspicion is that early in development KotOR was going to be a licenced Star Wars D20 game, but this fell through for reasons unknown.


----------



## Zardnaar

Paul Farquhar said:


> It's the idea that WotC can make the OGL "go away", no matter how much they might want it to, that would never stand up to legal test. The most they can do is try and pressure future publications to use the new licence.
> 
> And I'm pretty sure WotC has no interest in trying to pursue anything retroactively in any case. Horses that are already out of the barn when the door is closed are free for anyone to use.




 Well it's what the lawyers are saying it's not impossible they can make it go away. 

  Even if they can't until it's decided in court Kickstarter and One bookshelf will likely go along with whatever WotC is claiming.


----------



## Paul Farquhar

Zardnaar said:


> Well it's what the lawyers are saying it's not impossible they can make it go away.



There are no certainties in the law. Go not to the lawyers for council, for they will say both no and yes.

But as pointed out the idea that you can change the rules than try and apply them retroactively to something that was made in good faith under different rules is a can of worms no sane judge or corporation would want opened.


Zardnaar said:


> Even if they can't until it's decided in court Kickstarter and One bookshelf will likely go along with whatever WotC is claiming.



Uncertainty is always a threat, even when the chance that the sky is actually falling is minimal. It's really in WotC's ballpark to decide if it's in its interest to prop up these things.

What WotC can do is try and limit the ability to market something based on a connection to D&D. Which obviously does not apply to something like KotOR.


----------



## Zardnaar

Paul Farquhar said:


> There are no certainties in the law. Go not to the lawyers for council, for they will say both no and yes.
> 
> But as pointed out the idea that you can change the rules than try and apply them retroactively to something that was made in good faith under different rules is a can of worms no sane judge or corporation would want opened.
> 
> Uncertainty is always a threat, even when the chance that the sky is actually falling is minimal. It's really in WotC's ballpark to decide if it's in its interest to prop up these things.
> 
> What WotC can do is try and limit the ability to market something based on a connection to D&D. Which obviously does not apply to something like KotOR.




 Well I don't think it matters for KotoR since it was made under the old paradigm an thus can be resold even if WotC is successful.

 Heh was playing my original copy on disk not long ago then bought the digital version for the missing station and to play it with wife who was using the Switch. And I own it on steam bought that game 4 times.


----------



## Paul Farquhar

Zardnaar said:


> Well I don't think it matters for KotoR since it was made under the old paradigm an thus can be resold even if WotC is successful.



Indeed. And that establishes a precedent that a great many D&D rules are in the public domain. And once something enters the public domain it is very very difficult to reverse that.


----------



## Zardnaar

Paul Farquhar said:


> Indeed. And that establishes a precedent that a great many D&D rules are in the public domain. And once something enters the public domain it is very very difficult to reverse that.




 Not really public domain won't apply yet. The license expired is very different. 

  I wouldn't be throwing around absolutes basically going by what lawyers are saying. 

 Even if WotC doesn't get to big stick about it they can still cut you off from online stuff, browbeat things like Kickstarter and if 6E isn't OGL they can cut you off from that.

 Beyond that it's a lawyer thing and it could conceivably go WotC way apparently.


----------



## Paul Farquhar

Zardnaar said:


> Not really public domain won't apply yet. The license expired is very different.
> 
> I wouldn't be throwing around absolutes basically going by what lawyers are saying.
> 
> Even if WotC doesn't get to big stick about it they can still cut you off from online stuff, browbeat things like Kickstarter and if 6E isn't OGL they can cut you off from that.
> 
> Beyond that it's a lawyer thing and it could conceivably go WotC way apparently.



An investment engine like Kickstarter runs on confidence. Anything that undermines that is a threat. And WotC can certainly stop you from marketing something as "OneD&D compatible", even obliquely, if they choose to do so. The issue is, would they want to? It's the big threats they are worried about, what's open to question is how much they want to protect little guys who might get caught in the crossfire.

But the original question was about game mechanics, and it's pretty clear they are all fair game, so long as you don't actually mention D&D (even indirectly).


----------



## Zardnaar

Paul Farquhar said:


> An investment engine like Kickstarter runs on confidence. Anything that undermines that is a threat. And WotC can certainly stop you from marketing something as "OneD&D compatible", even obliquely, if they choose to do so. The issue is, would they want to? It's the big threats they are worried about, what's open to question is how much they want to protect little guys who might get caught in the crossfire.
> 
> But the original question was about game mechanics, and it's pretty clear they are all fair game, so long as you don't actually mention D&D (even indirectly).




 Nope what the lawyers are saying is you can't copyright basic mechanics eg rolling dice or shuffling cards. 

 You can copyright expressions of those mechanics. I can make a tcg tomorrow but can't clone MtG. 

 So any OGL game with elements of D&D in it is not safevif WotC sends out cease and desists. 

 Pathfinder 2 for example uses microfeats. No OGL well microfeats are in 3.0 which is now closed. 

 Guess what Pathfinder 2 is now potentially violating WotC trademarks. 

 How many people can fight WotC in court for 2-3 years, win and not go bankrupt?

 The OGL can't be revoked and game mechanics can't be copyrighted are not exactly true from a legal PoV. WotC has a valid case apparently they could conceivably win (and even if they can't well they have more money).


----------



## Paul Farquhar

Zardnaar said:


> You can copyright expressions of those mechanics.



This is far from clear. The DaVinci Editrice S.R.L. v. ZiKo Games, LLC ruling suggests the only things copyrightable are art, logos and narratives. If you made an exact copy of MtG with different art the outcome would be far from certain.


Zardnaar said:


> So any OGL game with elements of D&D



Is perfectly safe, since you could simply point to KotOR as the source.


Zardnaar said:


> athfinder 2 for example uses microfeats. No OGL well microfeats are in 3.0 which is now closed.
> 
> Guess what Pathfinder 2 is now potentially violating WotC trademarks.



And potentially, visa versa. Which is what WotC want to protect themselves from.


Zardnaar said:


> How many people can fight WotC in court for 2-3 years, win and not go bankrupt?



The big companies that WotC care about. They don't care what little guys do. It doesn't matter if WotC win, they have still made a net loss fighting the case. The only way to make money off law suits is if you are a little guy and successfully sue (or force an out of court settlement on) a big guy.


Zardnaar said:


> conceivably



There is a big difference between "conceivably" and "likely". And even if they did win, it would still be money down the toilet.


----------



## Zardnaar

Paul Farquhar said:


> This is far from clear. The DaVinci Editrice S.R.L. v. ZiKo Games, LLC ruling suggests the only things copyrightable are art, logos and narratives. If you made an exact copy of MtG with different art the outcome would be far from certain.
> 
> Is perfectly safe, since you could simply point to KotOR as the source.
> 
> And potentially, visa versa. Which is what WotC want to protect themselves from.
> 
> The big companies that WotC care about. They don't care what little guys do. It doesn't matter if WotC win, they have still made a net loss fighting the case. The only way to make money off law suits is if you are a little guy and successfully sue (or force an out of court settlement on) a big guy.
> 
> There is a big difference between "conceivably" and "likely". And even if they did win, it would still be money down the toilet.




 I agree it's unclear. Numerous lawyers here and elsewhere have said WotC have a viable case. 

 They're a lot less clear if WotC can win. In a lit of cases they don't need to the threat alone is enough. Or being blocked from 6E.


----------



## Paul Farquhar

Zardnaar said:


> I agree it's unclear. Numerous lawyers here and elsewhere have said WotC have a viable case.
> 
> They're a lot less clear if WotC can win. In a lit of cases they don't need to the threat alone is enough. Or being blocked from 6E.



Indeed. WotC want to AVOID lawsuits. Which is why the OGL was introduced in the first place, they want people to agree to play by their rules, because if they had to be tested in court there is not certainty WotC would win, and a loss could leave them dead in the water. They sure hope no one calls their bluff. The odds may be stacked on WotC's side, but the penalty for losing is also much higher. Which means thousands of people's jobs, now WotC is propping up Hasbro.

There is a problem: The problem is D&D having a virtual monopoly on the RPG market. But that aint WotC's fault, there is no point in getting mad at them about it.


----------



## pemerton

FrogReaver said:


> I was thinking 2 things with my question.
> 
> 1.  If WOTC did win on their deautorizaiton/revocation OGL claims, then all their statements to the contrary that stood online for years would be evidence that they deceived and misled the users of the OGL.  So worst case for 3pp is they could likely be reimbursed for loses due to the change.  In fraud in the U.S. it clearly matters what promises and reassurances were made to a person.  This potential for a fraud claim also provides 3pp some leverage over the OGL situation.



To be frank I think this is fanciful.

The only thing you are suggesting WotC deceived about was its intentions in relation to, and understanding of, the OGL. But there is no evidence that WotC was being deceptive - the company may have changed its mind and its legal understanding.

And for most tortious claims (not all) its necessary to prove loss - I don't believe that fraud is actionable per se. What loss did OGL cause to all those 3PPs by encouraging them to publish and sell their commercial works?

Given that in fact those 3PPs are making money from their commercial ventures, they want to prove the validity of their licences. And as I've posted in this and other threads, they would point to those statements to establish an estoppel or a similar reliance-based argument; not fraud.



FrogReaver said:


> 2.  As a legal strategy for the community it might be easier to pursue the fraud claims first.  Fraud claims wouldn't be required to wait on individualized action from WOTC - their statement that it's deauthorized/revoked and any monetary damage afterwards due to trying to comply would be enough for standing according to my understanding.  It puts WOTC on defense so to speak and prevents them from targeting companies 1 at a time.  Also, the chance a fraud claim succeeds in this situation seems higher than the chance the license claims succeed.  Not that the contract case isn't good, but the fraud case is a slam dunk.



Fraud is rarely pleaded because it's very hard to prove. In Australia at least there are special rules of evidence that apply, and a losing plaintiff can be liable for indemnity costs (ie costs ordered at a higher than typical rate). I'd be surprised if there are not similar bars to pleading fraud that operate in US jurisdictions.

So far from being a "slam dunk", I think there's no fraud and the case would be near enough to hopeless.

Also, there won't be any "licence claims". If there's litigation, it will be commenced by WotC, and the defendants will plead as their defence that they are publishing under licence. And I think there's a real chance that such a defence would succeed at trial, especially if supplemented  by the estoppel/reliance argument.


----------



## pemerton

teitan said:


> I’m talking about in the context of what’s in the SRD. Context man. If someone published something just because it was in the monster manual and Wizards failed to catch it was just an example of the ONLY way the OGL could arguably possibly be used to justify using their IP. You’re argument seems to be everyone pays attention to the nearly 400 page SRD.



WotC enjoy copyright in respect of the SRD, and have asserted their trademark rights also via their declaration of product identity. And everyone who uses the OGL accepts those claims, and expressly acknowledges the copyright.

I don't understand what you're saying about the Monster Manual. But I'm pretty confident that WotC will have a copyright notice included in every copy.


----------



## pemerton

Zardnaar said:


> If OGL goes away it's ability score system,  skill system, feats and class structure are from 3.0.



My question was "What WotC-owned trademark does KoTOR use without a licence?" Telling me that a publisher may be violating WotC's IP rights if they lose their licence isn't answering my question.



Paul Farquhar said:


> So you can argue based on KotOR that the vast majority of third edition rules are public domain.



This claim strikes me as utterly unwarranted. You yourself have said you don't know what licences KoTOR was published under.



Paul Farquhar said:


> One might think that, but I haven't seen any evidence that this is the case (and I have looked).



Where would you expect to find it? It would be a private agreement between WotC and BioWare. Why would it be public?


----------



## pemerton

Zardnaar said:


> Well I don't think it matters for KotoR since it was made under the old paradigm an thus can be resold even if WotC is successful.





Paul Farquhar said:


> Indeed. And that establishes a precedent that a great many D&D rules are in the public domain.



I don't think this is a justified conjecture. 



Paul Farquhar said:


> And WotC can certainly stop you from marketing something as "OneD&D compatible", even obliquely, if they choose to do so.



How? (Provided of course that you make it clear that you don't own the trademark in D&D and OneD&D and are not intending to contest WotC's use of those marks.)



Paul Farquhar said:


> The DaVinci Editrice S.R.L. v. ZiKo Games, LLC ruling suggests the only things copyrightable are art, logos and narratives.



I read the case earlier today. What you say is not an accurate summary.


----------



## S'mon

The *text* of the SRD is fully copyright protected.

_Like, if I use action, movement, and bonus action, as my action economy, is that in the danger zone?_

*Rules mechanics* per se are not copyright protected. An 'action economy' system is not copyright protected, AFAICS.
_
What about, like, the 6 stats, even if a couple are renamed and they work differently from any edition of dnd?_

This seems fine to me. There are many, many pre-OGL games that use similar stats to D&D, even on a 3-18 scale. See eg Runequest and Call of Cthulu. The basic idea of character attributes quantifying strength, dexterity et al is clearly unprotected. Just in terms of making a better game I'd recommend tweaking them, eg I don't think Wisdom is a good stat, Perception & Willpower are both better IMO. But that's a game design question, not a copyright question.


----------



## Paul Farquhar

pemerton said:


> My question was "What WotC-owned trademark does KoTOR use without a licence?" Telling me that a publisher may be violating WotC's IP rights if they lose their licence isn't answering my question.
> 
> This claim strikes me as utterly unwarranted. You yourself have said you don't know what licences KoTOR was published under.
> 
> Where would you expect to find it? It would be a private agreement between WotC and BioWare. Why would it be public?



Why would they not have publicised Star Wars D20 in the marketing, had they used the licence? It's possible there was a private agreement, but neither company would have stood to benefit from that.


----------



## S'mon

@OP there seems to be a lot of bad advice going on here. I'd say ignore anything about WoTC committing fraud, and ignore anyone saying WoTC has ceded material to the Public Domain, whether copyright or trade marks. Pemerton's advice above is good, I think my advice in post 57 is good. Given without liability OFC.


----------



## pemerton

S'mon said:


> *Rules mechanics* per se are not copyright protected. An 'action economy' system is not copyright protected, AFAICS.



The Davinci decision includes the following:

this court agrees that certain games can have a progression of events and a roster of developed characters that make the game expressive, just as the progression of a book or movie plot can be expressive even when the basic elements are common. Many video games, for example, involve lead characters in fictional worlds who embark on a quest to achieve a specific goal, such as saving a princess or avenging a wrong. This lead character progresses down a predictable or even predetermined path and interacts with a series of characters along the way. Many of the characters have back stories and personalities. . . .

But other games have plot progressions and characters who interact in ways that fall short of the expressive character interactions and plot progressions that are protected by copyright law. . . 

_Bang!_ is in this second category. In Bang! , the Sheriff and Deputies are pitted against the Outlaws and the Renegade. Other than these alignments, the events in a Bang! game are not predetermined because the interactions between the roles have no underlying script or detail and are not fixed.​
This makes me think that the degree of protection an action economy system might enjoy would depend on the extent to which it combined with characters to produce a prior authorially imagined series of events.

A very railroady resolution framework might be an example!, but also perhaps one where the action economy is expressive of a particular imaginative conception of a particular character or character type. The basic action economy of modern D&D doesn't seem to me to meet this threshold. I'm thinking of something like My Life With Master as perhaps getting closer to protectability.


----------



## pemerton

Paul Farquhar said:


> Why would they not have publicised Star Wars D20 in the marketing, had they used the licence?



Who knows? What were the terms of the licence? Did relations between the firms break down at a certain point? Did Bioware have an old agreement to produce up to N games using D&D stats and KoTOR was the last one, but WotC didn't want to let others of their trademarks be used with it, or Bioware didn't want to promote WotC's trademarks?

I don't see any reason to suppose that this would all be public. But given that BiowWare clearly had a licence for Baldur's Gate and Neverwinter, it strikes me as unlikely that their use of a similar framework for a later game happened completely independently of that framework.


----------



## S'mon

pemerton said:


> A very railroady resolution framework might be an example!, but also perhaps one where the action economy is expressive of a particular imaginative conception of a particular character or character type. The basic action economy of modern D&D doesn't seem to me to meet this threshold. I'm thinking of something like My Life With Master as perhaps getting closer to protectability.




I think the more tightly scripted a game is, the closer its structure gets to protectability A game like Lady Blackbird (sp?) designed to enact a single scenario may conceivably have protectable design elements. But I think it's the interaction of the design with the world fiction that could be protectable. I'm confident that 5e style action economy is not at all of that nature.


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## Zardnaar

pemerton said:


> My question was "What WotC-owned trademark does KoTOR use without a licence?" Telling me that a publisher may be violating WotC's IP rights if they lose their licence isn't answering my question.
> 
> This claim strikes me as utterly unwarranted. You yourself have said you don't know what licences KoTOR was published under.
> 
> Where would you expect to find it? It would be a private agreement between WotC and BioWare. Why would it be public?




 No idea but usung Kotor as an example is bad I don't know the details of any licencing. 

 If you're not violating WotC IP you may be violating Biowares instead and they're owned by EA which is even bigger than Hasbro.

 Either way you're still hypothetically screwed if push comes to shove in an OGL less world.

 And KoToR had a recent rerelease and there's a remake in the works as well (or was).


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## Paul Farquhar

pemerton said:


> Did relations between the firms break down at a certain point?



This is what I think happened, but I can only speculate.


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## Zardnaar

Paul Farquhar said:


> This is what I think happened, but I can only speculate.




 I own an original copy with manual. I can't dig it out atm as it's late/noise.


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## Paul Farquhar

Zardnaar said:


> No idea but usung Kotor as an example is bad I don't know the details of any licencing.
> 
> If you're not violating WotC IP you may be violating Biowares instead and they're owned by EA which is even bigger than Hasbro.
> 
> Either way you're still hypothetically screwed if push comes to shove in an OGL less world.
> 
> And KoToR had a recent rerelease and there's a remake in the works as well (or was).



You would cite it as one of many examples of the wide usage of D&D style mechanics. Other examples, such as CoC, are mentioned upthread. No company is going to try and come after you on that basis of D&D style mechanics. You only take something to court if you have a good chance of winning and something to protect, or nothing to lose.


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## Paul Farquhar

Zardnaar said:


> I own an original copy with manual. I can't dig it out atm as it's late/noise.



I have it too, I couldn't find anything on it about WotC. Lots of other stuff: Lucasarts, Lucasfilm, Bioware etc.

Of course, Disney own the Star Wars licences these days.


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## Zardnaar

Paul Farquhar said:


> I have it too, I couldn't find anything on it about WotC. Lots of other stuff: Lucasarts, Lucasfilm, Bioware etc.
> 
> Of course, Disney own the Star Wars licences these days.




 That's not a Disney problem they licensed the game to Bioware. 

 Assuming it's still binding it's an EA problem. 

  In any event KoToR gets grandfathered in. Post OGL your now knock off my may not be. Willing to ignore a cease and desist over it?


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## Paul Farquhar

Zardnaar said:


> Post OGL your now knock off my may not be.



If something was never published under the OGL, changing the OGL, even if it's deemed possible to do so retroactively, has no effect. You are verging towards the territory of "we can't play chess now there is no OGL!"


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## pemerton

I would doubt that Bioware was ever relying on the OGL, given that (i) by all accounts they don't conform to its requirements in their game, and (ii) Baldur's Gate pre-dates the OGL by some years.


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## teitan

pemerton said:


> WotC enjoy copyright in respect of the SRD, and have asserted their trademark rights also via their declaration of product identity. And everyone who uses the OGL accepts those claims, and expressly acknowledges the copyright.
> 
> I don't understand what you're saying about the Monster Manual. But I'm pretty confident that WotC will have a copyright notice included in every copy.



You’re obviously not understanding what I am saying. I’m saying people don’t pay attention and, this has happened in the past, published with Wizards IP in their products. In the D20 days with the STL Wizards was quick to issue C&D. 5e, without that STL it has been a lot more wild, Wild West in publishing 3pp support. The SRD… again… does NOT contain IP as indicated by the OGL. By design. The terms and rules in the text of the SRD is released for use by anyone who accepts the terms of the license. There are materials released under the OGL that WOtC does not own or even created, such as Toughness Saves for Mutants & Masterminds, which is OGC from Green Ronin. Rules are not IP. Some of the materials added to the SRD come from those 3pp such as the 5e saving throw system lifted from Trolllord Games, which was not designated OGC when they released C&C and is in fact IP as part of their Seige System. See the problem yet?


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## teitan

Zardnaar said:


> No idea but usung Kotor as an example is bad I don't know the details of any licencing.
> 
> If you're not violating WotC IP you may be violating Biowares instead and they're owned by EA which is even bigger than Hasbro.
> 
> Either way you're still hypothetically screwed if push comes to shove in an OGL less world.
> 
> And KoToR had a recent rerelease and there's a remake in the works as well (or was).



There wasn’t any licensing. They built it off the infinity engine and used 3.x because the current Star Wars game at the time was from Wizards and used the 3.x rules. They didn’t advertise it because they were BioWare and they had the Wizards licenses for video games and used the same Infinity Engine structures for Neverwinter but modified to take advantage of the DM tools. Then they used the infinity engine to build Dragon Age when they lost Baldur’s Gate and it was very KOTOR.


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## Paul Farquhar

But I don't think the Jedi Guardian and Jedi Consular classes where part of the Infinity Engine, or Neverwinter Nights, or the OGL. Those where lifted directly from Star Wars D20 (Sentinel was original to the game).


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## pemerton

teitan said:


> *There wasn’t any licensing.* They built it off the infinity engine and used 3.x because the current Star Wars game at the time was from Wizards and used the 3.x rules. They didn’t advertise it because they were BioWare and *they had the Wizards licenses for video games* and used the same Infinity Engine structures for Neverwinter but modified to take advantage of the DM tools. Then they used the infinity engine to build Dragon Age when they lost Baldur’s Gate and it was very KOTOR.



I don't see how the two bolded bits fit together.

But assuming the second one is correct, that fits with what I said to @Paul Farquhar upthread: there was a licence in place. There is no basis I can see for inferring from the existence (past or present) of that game that WotC does not enjoy IP rights in respect of various aspects of the D&D game system.



teitan said:


> The SRD… again… does NOT contain IP as indicated by the OGL.



This claim isn't true. You can see for yourself at this link:

Here's the section 15 statment:

System Reference Document 5.0 Copyright 2016, Wizards of the Coast, Inc.; Authors Mike Mearls, Jeremy Crawford, Chris Perkins, Rodney Thompson, Peter Lee, James Wyatt, Robert J. Schwalb, Bruce R. Cordell, Chris Sims, and Steve Townshend, based on original material by E. Gary Gygax and Dave Arneson.​
The whole text of the SRD is copyrighted in favour of WotC. The SRD also contains product identity, called out in a statement at the front of the document, which WotC claims to enjoy trademark or similar rights over.



teitan said:


> There are materials released under the OGL that WOtC does not own or even created, such as Toughness Saves for Mutants & Masterminds, which is OGC from Green Ronin.



Yes. Green Ronin owns the copyright in that text. It is obliged to do so (or to enjoy a licence over the text) by section 5 of the OGL, before purporting to publish it as OGC:

If You are contributing original material as Open Game Content, You represent that Your Contributions are Your original creation and/or You have sufficient rights to grant the rights conveyed by this License.​


teitan said:


> Rules are not IP



That claim is too simplistic. And even where rules or processes are not themselves protected by copyright, the text in which they are stated can be. The text of the SRD is copyright WotC. The text of M&M is copyright Green Ronin. Etc.


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## Zardnaar

Paul Farquhar said:


> But I don't think the Jedi Guardian and Jedi Consular classes where part of the Infinity Engine, or Neverwinter Nights, or the OGL. Those where lifted directly from Star Wars D20 (Sentinel was original to the game).




 Well they had a direct license apparently.


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## teitan

pemerton said:


> I don't see how the two bolded bits fit together.
> 
> But assuming the second one is correct, that fits with what I said to @Paul Farquhar upthread: there was a licence in place. There is no basis I can see for inferring from the existence (past or present) of that game that WotC does not enjoy IP rights in respect of various aspects of the D&D game system.
> 
> This claim isn't true. You can see for yourself at this link:
> 
> Here's the section 15 statment:
> 
> System Reference Document 5.0 Copyright 2016, Wizards of the Coast, Inc.; Authors Mike Mearls, Jeremy Crawford, Chris Perkins, Rodney Thompson, Peter Lee, James Wyatt, Robert J. Schwalb, Bruce R. Cordell, Chris Sims, and Steve Townshend, based on original material by E. Gary Gygax and Dave Arneson.​
> The whole text of the SRD is copyrighted in favour of WotC. The SRD also contains product identity, called out in a statement at the front of the document, which WotC claims to enjoy trademark or similar rights over.
> 
> Yes. Green Ronin owns the copyright in that text. It is obliged to do so (or to enjoy a licence over the text) by section 5 of the OGL, before purporting to publish it as OGC:
> 
> If You are contributing original material as Open Game Content, You represent that Your Contributions are Your original creation and/or You have sufficient rights to grant the rights conveyed by this License.​
> That claim is too simplistic. And even where rules or processes are not themselves protected by copyright, the text in which they are stated can be. The text of the SRD is copyright WotC. The text of M&M is copyright Green Ronin. Etc.



Copyright isn’t IP. IP is Driz’zt Do’Urden, the name Dungeons & Dragons or Forgotten Realms. It is titles that indicate a Product Identity not “roll a d20 and add modifiers”. It is not a wall of text. The SRD is copyright but it is not Product Identity because the OGL does not allow use of Product Identity. IP is not Strength 14 is a +2 modifier. An IP is trademarkable. Rules are not trademarkable. The SRD contains nothing that can be trademarked and what could be from Wizards, again, they chose to put in there and not designated as Product Identity. As in “non trademarkable”. They can’t market product called “Drow”. They can’t actually market a product called “Orcus” or even “Demogorgon” because they are mythical beings from religious traditions but they can Trademark Juiblex. They can Trademark Mind Flayer. They can Trademark a Beholder because those things are unique to D&D. They’re Product Identity.

The claim that rules are not IP is simplistic because it is a fact. Don’t confuse IP with copyrights. They are not the same thing.


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## Lanefan

teitan said:


> They can Trademark Mind Flayer. They can Trademark a Beholder because those things are unique to D&D. They’re Product Identity.
> 
> The claim that rules are not IP is simplistic because it is a fact. Don’t confuse IP with copyrights. They are not the same thing.



Some years ago WotC tried (trademarking? patenting? some sort of proprietary claim, anyway) the act of turning a card sideways to indicate a change in what that card represented in play (i.e. tapping a card), to stop other CCG designers/publishers from using that mechanic.  I seem to recall that didn't fly due to the idea that rules aren't protectable, but I forget the specifics.  As that seems to maybe hold some relevence here, does anyone remember the details?


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## pemerton

teitan said:


> Copyright isn’t IP.



Yes it is. IP means "intellectual property". The main forms of IP that I'm familiar with are copyright, industrial designs, patents, and trademarks.



teitan said:


> IP is Driz’zt Do’Urden, the name Dungeons & Dragons or Forgotten Realms. It is titles that indicate a Product Identity not “roll a d20 and add modifiers”. It is not a wall of text. The SRD is copyright but it is not Product Identity because the OGL does not allow use of Product Identity.



Product Identity is a concept created under contract, by the OGL. Some Product Identity is trademarks. Not all of it is. Some of it is copyrighted. Not all of it is.

And if you actually read the 5e SRD - which you can easily do here <https://media.wizards.com/2016/downloads/SRD-OGL_V1.1.pdf> - you will see that on the first page it identifies those parts of it which are declared to be Product Identity. (An example is "umber hulk", which is found on pp 149 and 260 of the SRD, but is not OGC because designated on p 1 as Product Identity. I don't believe that "umber hulk" is a trademark; and while the phrase itself may be copyrighted, I have doubts that a story about a giant tunnelling insect-headed monster with hypnotic eyes would infringe any WotC copyright - though on these points I'll see if @S'mon is able to offer a second opinion.)



teitan said:


> The claim that rules are not IP is simplistic because it is a fact. Don’t confuse IP with copyrights. They are not the same thing.



Are you a lawyer, or legally trained? My impression is that you are not. My profession is teaching law, including private law but not intellectual property. I have researched on some aspects of IP law, however.

@doctorbadwolf started this thread get actual information about how the SRD belongs to WotC from a legal point of view, and what bits of it are copyrighted. Your posts are not helping, because they are full of errors.

EDITed to add: My home jurisdiction is Australia, which means my main expertise is in Australian and English law.


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## S'mon

pemerton said:


> And if you actually read the 5e SRD - which you can easily do here <https://media.wizards.com/2016/downloads/SRD-OGL_V1.1.pdf> - you will see that on the first page it identifies those parts of it which are declared to be Product Identity. (An example is "umber hulk", which is found on pp 149 and 260 of the SRD, but is not OGC because designated on p 1 as Product Identity. I don't believe that "umber hulk" is a trademark; and while the phrase itself may be copyrighted, I have doubts that a story about a giant tunnelling insect-headed monster with hypnotic eyes would infringe any WotC copyright - though on these points I'll see if @S'mon is able to offer a second opinion.)




I concur with your learned opinion, m'lud. 

WoTC might someday claim that Umber Hulk is an unregistered trade mark, but it's never been used as a badge of origin by them so I think such a claim would be very weak.

It's quite possible that the Umber Hulk as a detailed concept (not the bare phrase) has copyright protection under US law. Certainly Umber Hulk artistic depiction  will. But the idea of "a giant tunnelling insect-headed monster with hypnotic eyes" is not itself copyright protectable IMO.

(For anyone new: I teach IP law and contract in England)


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## clearstream

Tales and Chronicles said:


> After reading a of this stuff in the past few days, I came to the conclusion than it would probably be possible to rebuild 5e without the 5e SRD if you are careful about your terminology and the specific expression of your rules.



Agreed! Although one factor to consider is the benefit of doing so?



Tales and Chronicles said:


> If your stats works differently, just sharing the name of a game mechanic from D&D should not be too much of a problem. Same thing for your action economy: sharing the names is not too bad, but if they work essentially the same as the D&D ones that could be considered as going too far.



Your stats can work identically. How something (e.g. a mechanic) works is very rarely protected. For example, WotC held for a time a patent on the tap mechanic, which they allowed to lapse. What can be copyrighted are distinctive wordings and appearances.

One could use an identical turn / action sequence to DnD, and in many cases label those elements with the same words, without infringing. One useful test would be to see if those mechanics and words exist in other games. So if Strength is a stat that often appears in RPGs (generally) it is not very likely to be upheld as distinctive of DnD. Likewise action, movement, and other such terms.

So just to reiterate, their names are in fact _more important_ in relation to copyright concerns, than how your stats work, which is largely immaterial. Corporations can benefit from ambiguity - the threat and fear of legal action - more than is justified under the law itself. For example, the threat of an encumbrance (say, the risk if not the actuality of legal action) may make a work harder to sell. It's more for that reason that one might want to create clear water between products.


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## clearstream

S'mon said:


> I concur with your learned opinion, m'lud.
> 
> WoTC might someday claim that Umber Hulk is an unregistered trade mark, but it's never been used as a badge of origin by them so I think such a claim would be very weak.
> 
> It's quite possible that the Umber Hulk as a detailed concept (not the bare phrase) has copyright protection under US law. Certainly Umber Hulk artistic depiction  will. But the idea of "a giant tunnelling insect-headed monster with hypnotic eyes" is not itself copyright protectable IMO.
> 
> (For anyone new: I teach IP law and contract in England)



If @teitan's point is that - restating slightly - copyright doesn't protect mechanics: then that is correct. On the other hand, copyrights are very much an example of IP. The exact wording of rules can be IP. The working of rules may - but is unlikely to be - a protected IP.

"Umber Hulk", I don't really know about. They don't need to have registered it to be able to claim a trademark (although in some territories they would need to have claimed it as a trademark.)


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## clearstream

pemerton said:


> @doctorbadwolf
> 
> This court case seems relevant to your question: DaVinci Editrice S.R.L. v. ZiKo Games, LLC



What I find bemusing about that case is this...

The summary judgement:


> *In no case* does copyright protection for an original work of authorship extend to *any idea, procedure, process, system, method of operation, concept, principle, or discovery*, regardless of the form in which it is described, explained, illustrated, or embodied in such work.




The court's reasoning:


> The court points out that “Unlike a book or movie plot, the rules and procedures, including the winning conditions, that make up a card-game system of play do not themselves produce the artistic or literary content that is the hallmark of protectable expression.”




Yes, quite right. There's no artistry to crafting game mechanics. It is an aesthetically dead act. Nothing of the designer - certainly nothing artistic - is therein expressed.


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## Malchor Flubbit

Zardnaar said:


> D&D 1974
> 
> Basically if it's in an edition of D&D it might not be safe at least in expression.
> 
> The 6 ability bscores might be safe but +1 at 12/13, +2 at 14/15 etc might not be.
> 
> If the IGL goes away if it's in an edition of D&D it might bit be safe beyond basic names. Copying any specific mechanic or expression of it could be messy.
> 
> Playing it safe I wouldn't make it class based.



Based on the above, using the OGL for the 3.x SDR never actually not allowed cloning of earlier content.

The theory of clone designers (if I understand correctly), is that the OGL for the 3.x SDR gave access to certain phrasings that remained from the earlier editions to 3.x, and the mechanics like "+1 at 12/13, +2 at 14/15" were fair game as they are game mechanics and part of the game system, both of which are not protected.


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## Zardnaar

Malchor Flubbit said:


> Based on the above, using the OGL for the 3.x SDR never actually not allowed cloning of earlier content.
> 
> The theory of clone designers (if I understand correctly), is that the OGL for the 3.x SDR gave access to certain phrasings that remained from the earlier editions to 3.x, and the mechanics like "+1 at 12/13, +2 at 14/15" were fair game as they are game mechanics and part of the game system, both of which are not protected.




 And if the OGL goes away they may not be able to do that or fight a cease and desist in court. 

 Can't copyright mechanics isn't as absolute as people here think apparently. 

 And since things like Pathfinder have copied concepts from 3.0 wholesale they could conceivably be nuked.

 OSR has also lifted things while from older editions. OGL goes away......


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## Malchor Flubbit

Zardnaar said:


> Can't copyright mechanics isn't as absolute as people here think apparently.



Based on what? Is there a specific U.S. game copyright case?


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## Zardnaar

Malchor Flubbit said:


> Based on what? Is there a specific U.S. game copyright case?



 No it's never been tested beyond basic level stuff. You can't copyright basic mechanics eg rolling dice, shuffling cards.

 Eg I can make a tcg tomorrow but I can't clone MtG. 

 You can copyright expressions of mechanics but there's no legal definition of that. 

 Pathfinder 2 for example still uses microfeats and the 3.0 ability score system. OGL goes away well WotC decides to claim that's their IP. There's no OGL it's right there in the 3.0 phb they invented that expression of mechanics. 

 Who's to say they can't make that stick? And even if you're right can you afford to prove it? 

 That's the threat/danger.

 So it of these ideas to make a new cline might not realize anything from 3.0 and 5E might be off the table. 

 Pathfinder didn't have to worry about that in 2009.


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## pemerton

Malchor Flubbit said:


> Based on what? Is there a specific U.S. game copyright case?





Zardnaar said:


> No it's never been tested beyond basic level stuff. You can't copyright basic mechanics eg rolling dice, shuffling cards.



This is not really accurate:



pemerton said:


> @doctorbadwolf
> 
> This court case seems relevant to your question: DaVinci Editrice S.R.L. v. ZiKo Games, LLC


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## Zardnaar

pemerton said:


> This is not really accurate:




 I'm not saying they can't win but it's not absolute. WotC can theoretically win a case. So can you. 

 Even if they don't how many can afford to fight it out in court. 

 Even if you win and can afford it they can also lock you out of their VTT and 6E.


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## teitan

clearstream said:


> If @teitan's point is that - restating slightly - copyright doesn't protect mechanics: then that is correct. On the other hand, copyrights are very much an example of IP. The exact wording of rules can be IP. The working of rules may - but is unlikely to be - a protected IP.
> 
> "Umber Hulk", I don't really know about. They don't need to have registered it to be able to claim a trademark (although in some territories they would need to have claimed it as a trademark.)



Yes that is my point.


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## Malchor Flubbit

The catching point seems to be not only the line between “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied” and "expression," but also "product identy."

The U.S. Copyright Office's circular 33, "Works Not Protected by Copyright" is fairly clear (or perhaps deceptively seem to be, like a mimic waiting to spring on a non-lawyer or a lawyer who fails their check) on what is not covered by copyright and points to patents and trademarks where needed. Though, the to this layperson, the concept of "product identiy" is perhaps the most confusing.

It seem, again from this layperson's understanding so far which is likely not correct, that "product identity"seems like a grey area between copyright and trademark. Copyright protection today is automatic, yet copyright does not cover "
Names, Titles, Short Phrases" including "The name of a character." And trademarks have an application process that included showing current use or intent to use, and a view process. Yet it seems a company can simply say, "oh that? that is totally product identity, and it is because...er...because it is." Doing a quick TESS search for US Trademarks shows, "Mind Flayer,"  "Displacer Beast," even Mordenkainen, look to have never been registred. And yet, all thress are claimed as "product identity."

Is "product identity" part of copyright or trademark law? How does one create "product identity?" Is this really meant to cover creaters and character names?


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## S'mon

Malchor Flubbit said:


> Is "product identity" part of copyright or trademark law? How does one create "product identity?" Is this really meant to cover creaters and character names?




Product Identity is a concept that exists only within the contract, the OGL. It covers whatever the contract says it covers.


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## Malchor Flubbit

S'mon said:


> Product Identity is a concept that exists only within the contract, the OGL. It covers whatever the contract says it covers.



Did you hear that? The sounds from all the way across the Atlantic? Perhaps they were faint. The sounds of my head popping, followed by a slat sound.

OK seriously now, and be gentle, layperson honestly trying to understand this. In the OGL, is Product Identity meant to carve out just the name (e.g., mind flayer) or the full package (name, lore, descriptions, habbitate, culture, etc.) of the mind flayer?


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## S'mon

Malchor Flubbit said:


> Did you hear that? The sounds from all the way across the Atlantic? Perhaps they were faint. The sounds of my head popping, followed by a slat sound.
> 
> OK seriously now, and be gentle, layperson honestly trying to understand this. In the OGL, is Product Identity meant to carve out just the name (e.g., mind flayer) or the full package (name, lore, descriptions, habbitate, culture, etc.) of the mind flayer?




I'd say full package, but it only specifies the names. Lawyer answer: it depends. 
They don't want you putting Mind Flayers in your OGL game. 3PPs have used analogues with different names ok, eg Carcass Scavenger instead of Carrion Crawler.


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## Malchor Flubbit

S'mon said:


> I'd say full package, but it only specifies the names. Lawyer answer: it depends.
> They don't want you putting Mind Flayers in your OGL game. 3PPs have used analogues with different names ok, eg Carcass Scavenger instead of Carrion Crawler.




As a consultant, I respect your "it depends."

On the creatures, it always seemed odd that they selected a handful and left out others like the owlbear and bulette.


----------

