Jeff Kesselman is an online friend of some years standing. I’ve never met him IRL, but I feel I know him from his articulate Facebook and chat room posts. This piece of his gave me a perfect entrée into something I’ve been thinking about for a while: inviting guest contributors to my blog! I’m giving him permission to publicize his piece here. He is, unlike me, a professional in the field about which he writes. And, I take it from his writing, he does have some followers in the RPG community. If his publicity is too successful, I may reconsider my decision in the future. (Warp & Woof is not intended to be a forum for any particular interest group over any other — except for people who are interested in the things I write about!)
So here it is, the very first Warp & Woof post from a guest contributor: “No One Owns Dungeons and Dragons.”
No One Owns Dungeons and Dragons
By Jeffrey “Prof K” Kesselman,
Professor of Game Design and Development at Purdue Polytechnic
This article gets into some generalities of intellectual property law. The author is not a lawyer and this article should not be construed or relied upon as ‘legal advice.’ The author is a professor of game design, as well as a 25-year game industry veteran where intellectual property law was a daily concern. He is also the son of authors, who also dealt with intellectual property law on a daily basis. The intent of this article is for readers know their rights. If you have a wish to exercise these rights in court, you should consult with a licensed attorney.
TL/DR: No one can own and control game rules or mechanics under US copyright law. They only own the language, art and other artistic expressions by which they are explained. Unless you want to use significant parts of WOTC’s text or art, or you want to use one of their trademarks in a way that might make a consumer think you are them, you never needed a license and still don’t.
History and the Law:
As some of you may know, there is a brouhaha on the internet and in game player circles over an attempt by Wizards of the Coast (WOTC) to modify the terms under which (they claim) their customers play Dungeons and Dragons. When WOTC took over Dungeons and Dragons from the failed Tactical Studies Rules (TSR), they issued a document called the “Open Gaming License” that claimed to specify the terms under which the game could be played. In specific, it set out supposed rights and limitations on how third parties and players could create additions and extensions to the game.
To understand why this is important, takes going back in time to the history of Dungeons and Dragons. As first published by TSR in 1976, Dungeons and dragons consisted of 3 little rule booklets in a box that sold for $10. Which is to say, there weren’t a lot of rules.
Over the next few years TSR produced 3 more supplemental books: “Grayhawk”, “Blackmoor”, “Eldritch Wizardry”, and “Gods Demigods and Heroes”. Each book expanded some on the rules but there were still lots of gaps and places to extend them. Encouraged by text in the rules themselves, players eagerly jumped on the challenge of building out new parts of existing world descriptions and creating whole new worlds of their own.
At the time, TSR also published a monthly newsletter called “The Strategic Review”. This became a primary channel through which players shared their own ideas and extensions with each other. As The Strategic Review became more and more about Dungeons and Dragons and less about TSR’s other games, they changed the name of it to “The Dragon” and moved from a newsletter to a full magazine format, but its usage remained fundamentally the same.
Over the life of TSR they published new versions and supplements to the Dungeons and Dragons rules, often drawing on material that was submitted to them for The Strategic Review/The Dragon, but lots more was being created by players all the time. As the age of the internet dawned, This material ended up being collected in documents referred to by the community as “netbooks” and made freely available on internet ftp sites. (FTP was a pre-web way of collecting and distributing documents.)
For a while, this all lived in synergy, but TSR made a few very bad business decisions and started to fail as a company. Searching for ways to improve their sales, they started attacking all the fan sites legally and claiming they were in violation of TSR’s copyrights. (Which, as we will see below, in most cases was nonsense. It is worth noting that, during this period, TSR was in court three times over intellectual property issues and lost every case.)
Attacking your customers is never a good business strategy and TSR did eventually go into bankruptcy. Another game publisher, WOTC, whose recent success with their product Magic, The Gathering made them flush with cash decided to buy the TSR assets– including Dungeons and Dragons (mostly Dungeons and Dragons by then.) The fan base eagerly requested a statement and clarification of how they were going to handle fan material. This led to the WOTC publication of the “Open Gaming License 1.0” which spelled out what they considered their rights in regards to both fans and third-party publishers.
It is important to note at this point, that this was a legally unnecessary document. TSR had vastly over-reached their rights, as we shall see, and as evidenced by their failures in court . The Electronic Frontier Foundation (who ARE lawyers) have this to say about OGL1.0:
“The version of the Open Gaming License (OGL) that has existed since 2000 is very narrow. It permits use of “the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity and is an enhancement over the prior art and any additional content clearly identified as Open Game Content by the Contributor.” You’ll notice that these are the elements that are not copyrightable in the first place. So, the only benefit that OGL offers, legally, is that you can copy verbatim some descriptions of some elements that otherwise might arguably rise to the level of copyrightability. “ So, although this document promised somewhat kinder treatment than under TSR, in the end it still asserted that the company owned rights to game mechanics, which is simply not true. It has been common legal understanding for hundreds of years that Copyright does not protect ideas, only the expression OF those ideas in written or other artistic form. Anyone can repeat those ideas, as long as they do so with different text, artwork, etc. This understanding was codified into US law in the 1976 copyright act (the most recent one). The American Bar Association explains it thusly:
“Section 102(b) of the Copyright Act states: “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.” In using the word “or,” the statute lists these exclusions—ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries—disjunctively. Thus, each has independent force and effect. This means that neither ideas nor functional elements—such as procedures, processes, systems, or methods of operation—are copyrightable.”
Right now, WOTC is attempting to introduce a new, even more restrictive version of the OGL. But just like the previous OGL it vastly over-reaches and claims they can “license” to you things they never controlled. The very first paragraph reads:
“The core D&D mechanics, which are located at pages 56-104, 254-260, and 358-359 of this System Reference Document 5.1 (but not the examples used on those pages), are licensed to you under the Creative Commons Attribution 4.0 International (CC BY 4.0).”
As you should know by now, mechanics are not copyrightable. They are free to use. So, if all you want to do is use their mechanics, you should not agree to this document. It places limits on your use that are not there in the “unlicensed” version.
Now what IS owned by them is the text itself in the system reference Document. So, if you want to copy the SRD verbatim, you will need to adhere to the creative commons license. I would note there is no “as long as you follow the rest of this” wording in that paragraph. My gut says that, since Creative Commons is its own license, you could use that text under CC without adhering to the rest of this document, but if you want to go that route I’d definitely consult with a real attorney and it may not be worth the bother.
A word on Trademark:
Individual words or what the copyright law calls “coined terminology” are excluded from copyright protection. The law states that only “significant artistic expression” is covered and the courts decided long ago that individual words or even a sentence by itself is not significant.
TSR attempted to get around this limitation by saying their terminology were “Trademarks”, for instance the term Armor Class. While individual words CAN be considered trademarks, they have to meet a number of criteria and even then, their protection is limited. To understand why, you need to understand where Trademark law came from.
Back in the days of hand artisans, makers would have a symbol they would put on one of their pieces to indicate that they made it. You can still see these today on things like studio produced ceramics. These were called trademarks. Imitators making cheap copies would try to imitate the marks to increase the value of their (often inferior) pottery. As a result, a law was created that made such imitations illegal. When it came to identifying the origin of a good or service others were enjoined from using your trademark.
But this is the only restricted use of a trademark, to identify who made a product. Use of trademarks are not limited or protected under any other circumstances. In legal language “a trademark is only infringed when its use might confuse a reasonable consumer as to the origin of the good or service being offered for sale.”
Also, Trademarks must be unique (which is why we see creative misspellings in them) and not currently in use by someone else. Finally, you have to actively be using the trademark to identify yourself to consumers or someone else can use it.
So, while “Dungeons and Dragons” is clearly a trademark, “Armor Class” is just as clearly NOT a trademark. Furthermore, you cannot call your independent rulebook “a Dungeons and Dragons product” (that’s confusing and makes it sound like you are WOTC) you CAN say “a set of optional rules compatible with the Dungeons and Dragons game” without any license.
Unless you want to use significant parts of WOTC’s text or art, or you want to use one of their trademarks in a way that might make a consumer think you are them, you never needed a license and still don’t.
Latest Update from Author:
Post Script Update: Wizards of the Coast has just totally capitulated to the anger of its customers and released the text of the “System Reference Document” with a Creative Commons — Attribution 4.0 International — CC BY 4.0 license (OGL 1.0a & Creative Commons – Posts – D&D Beyond (dndbeyond.com) ). This means you no longer need to agree to ANY of the OGL restrictions to use the text in your own works. You only need to attribute what you do use to them and make clear any changes you make to it.
But this still doesn’t really change the fact that you never, ever needed or will need a license to use the rules, only the text describing them.
It’s always darkest just before you are eaten by a grue.