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Part 1: Copyrightability of #RPG Stat Blocks #DnD #copyright #iplaw

Frylock68 Comments

Part 1 | Part 2 | Part 3 | Part 3.5 | FAQ/FRI

I received an email from Wizards of the Coast (“WotC”) demanding that I take down my one-stop stat blocks. Unsurprisingly, the email didn’t provide an actual argument, but it raises some important issues as to what’s copyrightable and what isn’t. WotC has a history of taking advantage of gamers’ ignorance of contract and intellectual property law and lack of wealth when making similar demands, thus harming the gaming community and industry, so it’s time those issues are addressed. Most of the following arguments apply to any role-playing game produced by any game designer.

This is the first of three blog posts that I’m going to put out as quickly as possible. They’re entitled:

    1. Copyrightability of Stat Blocks
    2. Copyrightability of Spell Descriptions
    3. The Damage Done to the Gaming Community and Industry by the Otherwise Ineffectual Open Gaming License (OGL)

In case it isn’t clear, WotC does not endorse this post or any work I’ve created. My use of their trademarks is purely to identify the subject of this discussion and should not be taken as an endorsement of my work by WotC. To the extent that there has been any technical infringement of a WotC copyright by this post, such use constitutes commentary on a de minimus amount of their copyrights and is therefore a fair use of those copyrights.

Also note that this post does not constitute legal advice. This addresses WotC’s copyright misuse; it doesn’t, and in fact can’t, address whether any actions of the reader themselves constitute copyright infringement. If the courts find copyright misuse, then the copyrights will be deemed unenforceable retroactively to the point in time when the misuse began (likely 2005 or earlier). If the courts don’t find copyright misuse, then past infringement is still subject to a lawsuit, and this post doesn’t address anyone’s behavior other than WotC’s and my own. Your case rests on your facts. If there’s any concern that you’ve infringed WotC’s copyrights, you’ll need to retain an attorney.

First, Some Sympathy

Most of you aren’t going to base your decisions to publish stat blocks on what I write here. You shouldn’t, because whether a game designer can validly claim copyright infringement of a stat block depends on exactly how you word your stat blocks and spell descriptions. Even if you do so without infringing, it’s still scary and expensive to face a lawsuit. However, I’m willing to take that risk so that we’ll have a definitive answer in the not-so-distant future. I’ve always been supportive of this community and industry. In fact, WotC owes a lot of sales directly from the work I’ve done with organized play and running my convention back in 2010 and 2011. I’ve supported and defended them many times, making their threat a questionable tactic. It’s time to put their demands in the proper light.

Stat blocks are difficult to copyright, and I have yet to see one that is, but before that can be addressed, there are a few legal concepts that must be discussed. Legal terms of art will appear in quotation marks that, in the interests of space, I may or may not define.

Functional v. Creative

Shadow of the Demon Lord is a fantastic game that, in my opinion, has an interesting initiative system. As much as I like it, and as much as we all may think of it as “creative” colloquially speaking, in the context of intellectual property law, it’s not. Because the initiative system is a “formula” or “process,” it’s considered “functional,” protectable in theory only under patent law. The initiative system would almost certainly not be eligible for a patent, which means that third parties should feel free to adapt that to any of their games. If it’s the inspiration for doing so, the third party may want to give credit but is not legally required to do so, and should not feel the slightest bit ashamed to incorporate it in those games. No one can own that system, and more importantly, no one should own it. That would be bad for the gaming community in particular and society as a whole.

On the other hand, some material is considered “creative,” meaning that it’s an original idea expressed by the author. To earn a copyright, creative work must not only be original, but it must have a “modicum of creativity” (i.e., a minimum level). A stick figure is creative but not nearly creative enough to rise to the level of copyrightability. That said, the requirement for originality is quite low, and there’s no strict line drawn by the courts. Each case is handled on a case-by-case basis.

Copyright Holders v. the Public Interest

The purpose of copyrights, patents, and trademarks is to serve the general public. The fact that we grant these “limited monopolies” isn’t because the law is rewarding the artists, inventors, and entrepreneurs for a job well done; it’s because by doing so the law serves the public. By placing creators in a position to profit off of their works, limited monopolies provide an incentive for creating those works, assuring the public that they’ll have access to a wealth of art (copyright) and increasingly improving technology (patents), as well as allow them to quickly and reliably identify the products and services of companies they trust (trademark). The important point is that grant of limited monopolies is a mechanism, not a goal; the means to an end. Accordingly, when enforcing the intellectual property monopoly power comes in conflict with the public good, the public good always wins.

“Sweat of the Brow”

In 1991, the Supreme Court shot down the notion that a collection of uncopyrightable material somehow transforms into a copyrighted work. For example, if an author compiles a spreadsheet of the mass, size, and distance of various planets and stars in the known universe, that collection isn’t copyrightable because none of those individual pieces of data are copyrightable. They can’t be copyrighted because they’re not creative; they didn’t originate from the author. The author of the spreadsheet can’t report Jupiter’s mass as something it isn’t. Doing so would render the spreadsheet factually inaccurate and thus useless. Copyright is about choosing one thing over many other options. Without having the opportunity to choose anything else, one can’t say that it was original, copyrightable work. Choice is always key.

Also of importance is the fact that those data are independent of each other. If the spreadsheet left out the mass of Jupiter, a reader would still know Jupiter’s size and distance from Earth. While nice to know, Jupiter’s mass isn’t required to understand its size and distance from Earth. Similarly, a phone book isn’t copyrightable because phone numbers are also independent of each other. A reader doesn’t need to know one person’s phone number to properly interpret another person’s phone number. Each phone number stands on its own.

This may seem unfair to someone who’s worked hard to collect and organize a database or phone book, but as previously stated, the purpose of copyright is to serve the public, not to reward the author. The reward is just a means to achieve that end. So, no matter how much work it took to create a collection, if each individual unit of the collection is not copyrightable and independent from the others, then the collection is not copyrightable.

Telling a Story

You may have detected a tension. Collections of uncopyrightable elements are not copyrightable. However, aren’t copyrightable sentences merely a collection of uncopyrightable single words? If the sentence isn’t copyrightable, then aren’t paragraphs merely a collection of uncopyrightable sentences? Aren’t single musical notes uncopyrightable, but stringing them together is a copyrightable piece of music? What’s the difference between these scenarios and that of phone numbers or stat blocks?

For a stat block to be copyrightable, it must include something beyond mere game mechanics, such as an expression of character backstory, biology, culture, ecology, or personality, and that expression must not come from mythology or literature, because that material is in the “public domain” (i.e., freely useable by everyone). So why isn’t the collection of stat blocks copyrightable (e.g., the stat blocks of the Monster Manual as a whole) just like a collection of words or musical notes? Because, for the most part, the stat blocks don’t tell a collective story. Placing a series of words together can form a coherent thought, so a written sentence is a “tangible expression” of an idea. The same can be said with a song, which represents a coherent musical theme. On the other hand, stat blocks remain independent of one another even if they appear within the same book. Just like one person’s phone number in a phone book tells the reader nothing about someone else’s phone number in that same book, a dragon’s stat block tells the reader nothing about a vampire’s stat block. If the reader truly couldn’t use the dragon’s stat block without also referencing the vampire’s stat block (and vice versa), then each of those stat blocks would be analogous to words forming a complete sentence, and the reader would have to perform the copyrightability analysis on both of them at the same time. Instead, WotC’s dragon stat block is self-contained, showing the reader exactly how it fits in the game system, so it’s copyrightability should be addressed individually without respect to any other stat block. Each stat block stands on its own.

Game Rules

Game rules aren’t copyrightable, so in the context of the prior discussion, game rules can be considered “facts.” On the other hand, the specific expression of a game rule can be copyrighted if it is sufficiently creative. There’s no clear test for whether a work is sufficiently creative. For example, it’s not creative to call a spell “Fly” because it allows a character to fly, but the paragraphs representing a complex discussion of flying rules could be copyrighted. Moreover, if there’s a discussion of how a spellcaster must act in order to cast the spell (e.g., somatic gestures, specific words that must be said aloud), or in how the magic manifests itself in sight or sound (e.g., “magic runes appear in the air before you”), then those elements of flavorful description (a.k.a., fluff) could be deemed creative as specifically expressed. If copied word for word, or even if it’s not exact but is “substantially similar,” there could be copyright infringement of the specific expression (provided the statements aren’t so simple as to prevent any other reasonable means to express the same idea).

Single Words

Single words aren’t copyrightable, as no single word, however fanciful (i.e., bizarre, made up), rises to the minimum level of creativity necessary to warrant protection. If a single word were copyrightable, then it would be removed from the native language. Once each word was copyrighted, no one would be permitted to say anything to anyone. This is why answering the question “Is it creative?” is insufficient. One must then ask, “But is it creative enough?”

Trademark protects single words, but that’s reasonable because the nature of the protection is different. Trademark doesn’t forbid using those words, but specifically from using them in a way that confuses the public as to the source of goods and services. For example, “Dungeons & Dragons” is a registered trademark of WotC. Writing out that phrase here isn’t infringement. Besides this post being commentary falling under fair use (q.v.), it’s clear from context that its use isn’t meant to suggest that WotC is endorsing this post. If the viewer, listener, or reader is fully aware that WotC doesn’t endorse a use of its trademark, then a third party may reference “Dungeons & Dragons” even for commercial purposes (see, e.g., beer commercials that ridicule their competitors). Printing the standard disclaimer helps prevent such confusion (i.e., “Dungeons & Dragons is a registered trademark of Wizards of the Coast.”). If using their artistic logos, it’s much harder to claim the public wouldn’t be confused, so they shouldn’t be used on third-party work without permission.

Fantasy Themes

“Fantasy themes” (defined here as characters, creatures, stories, or settings that appear in literature, folklore, or mythology) aren’t copyrightable. Some of them are so old that they predate the concept of copyright, but those that don’t may have expired. So, the expression of a dwarf that mirrors the dwarves of Norse mythology isn’t copyrightable. It’s so old that it must be in the public domain. In copyright terms, the traits and abilities of mythological dwarves are sometimes called “stock,” so even if an author gives one of those basic powers to an elf instead, that’s still not creative enough to say that the author has created its own type of elf. Stock characters aren’t protectable by copyright, nor are stock character abilities (e.g., flying), but even non-stock abilities aren’t protectable if they represent how a game is played.

“Even if the . . . abilities were not stock, they are still not expressive because they are essentially rules of game play. The . . . ability to strike opponents from a longer distance than other characters. is no more expressive than the ability of a rook in a chess game to take an opposing piece from all the way across the board, as opposed to a pawn that may attack only from the next square. The rook’s ability affects other characters or roles in the game because the attack range increases the queen’s and king’s exposure. But this special ability is neither literary nor artistic. It is an aspect of game play, a subset of the rules that make up the game system.”

Fair Use

This can of worms will not be opened too widely but note that in many cases the infringement of a copyright can be justified. Just like a homicide can be justified as self-defense, infringement of a valid copyright can sometimes be justified because the First Amendment’s Free Speech clause forbids copyright law from suppressing certain statements. Even if WotC is held by a court to have a copyright in a particular stat block, the matter is hardly settled. Depending on the facts of a specific case, it still may be copied, or even published for profit, as a fair use. In fact, it’s almost impossible to make any use whatsoever of, for example, the Forgotten Realms Campaign Setting without technically infringing WotC’s copyright. Once a “dungeon master” (“DM”) makes private notes for a campaign that use information from that book, the DM is technically infringing. It’s quite hard to believe that a court wouldn’t see that as a fair use. That said, relying on fair use is a risky proposition. It 1) admits infringement, and 2) places the burden of proof on you to prove that infringement is justified. As a general matter, don’t be quick to rely on fair use. Always consult an attorney before doing so.

For an more on fair use, here are a couple of posts that represent a good start: The Fair Use Factors and the cautionary tale of Fair Use as an Affirmative Defense.

Copyright Misuse

Copyright misuse is a hard concept. It’s not hard to understand its mechanism, but rather its value. In short, when a copyright holder attempts to expand the scope of its copyright beyond what the law allows, the copyright holder is said to be misusing that copyright, and the alleged infringer can raise copyright misuse as a defense. The reason the defense is important is that it’s usually impossible to know exactly what kind of a world we’d have if the copyright misuse never occurred. The public looks around and says, “Wow, this is a great world we’re living in. All this art, all these computers. It’s great!” Sure, but it could be a lot better, and it can be hard to convince people of that because you can’t point to nonexistent things as evidence. If art were never created, we can’t identify it as missing. The copyright misuse doctrine is one of the ways we make sure that things are better where “better” is hard to define.

For example, for copyrights arising on or after January 1, 1978, if the work was created as part of an employment contract, the copyright lasts for 95 years from first publication or 120 years from creation (whichever is shorter). Let’s say that a copyright is scheduled to expire in 75 years. If the copyright holder offers a license to that copyrighted work for 100 years, that would give them control of the work even after the copyright expired. That’s considered copyright misuse because it effectively extends the life of the copyright beyond the time Congress intended. If someone infringes the copyright, they can raise the defense of copyright misuse even if they aren’t a party to that license. See Lasercomb America, Inc. v. Reynolds, 911 F.2d 970 (4th Cir. 1990).

Copyright misuse can also occur where public data (i.e., material no one owns) is wrapped up within copyrighted material, and the copyright holder essentially takes it hostage. For example, let’s say the owner of copyrighted software licenses it to various governments to collect public real estate data. The public data is thus hidden within the software, and the only way to extract it is to technically infringe the copyright. If the license strictly forbids that extraction of data, the copyright holder has committed copyright misuse by leveraging its copyright to deny access to public domain data. When public material and copyrighted work are inseparable, the copyright holder can’t extend its valid copyright protection to restrict the public material. See Assessment Technologies of WI LLC v. Wiredata, 350 F.3d 640 (7th Cir. 2004).

The Courts of Appeal for the 3rd, 5th, and 9th Circuits have also expressly recognized the doctrine of copyright misuse as a defendant’s defense against a claim of copyright infringement, with the 3rd and 9th Circuits recognizing it as an affirmative cause of action available to a plaintiff.

In the case of stat blocks, if any copyrightable text in the Monster Manual is used to threaten or contract away the public’s ability to use uncopyrightable game mechanics or fantasy themes, then the creator of the copyrightable text is committing copyright misuse. But is there any copyrightable text in a stat block itself?

Stat Blocks

It’s indisputable that stat blocks are at least partly functional. They describe how a creature fits mechanically into the framework of the game system in a way that’s intuitive. If the structure were artistic, it wouldn’t even be readable. By forbidding republication of a stat block, WotC is leveraging their creative work to essentially protect game rules, fantasy themes, and principles of human psychology, effectively extending their copyright to uncopyrightable elements. That’s the definition of copyright misuse.

Stat Block Content

Here’s an example of a stat block of my own creation that shares many similarities with the one appearing in WotC’s Monster Manual.

A cyclops is a one-eyed giant first introduced in the Odyssey (based on prior oral tradition), which was written near the end of the 8th century B.C. The idea of a cyclops is clearly in the public domain, which also explains why WotC hasn’t sued Warner Brothers (among others) for including them in the movie, Wrath of the Titans. Most of the mechanical elements of the stat block – size, creature type (“giant”), alignment (“chaotic neutral”), ability scores, the Poor Depth Perception trait, its high strength but low intelligence – all reflect the nature of this creature as it appears in Greek and Roman mythology. With respect to, for example, the trait Poor Depth Perception, it would be creative to give the cyclops exceptional depth perception, but WotC didn’t do that probably because players want to face the mythological equivalent of a cyclops. That’s one of the reasons WotC is limited in how creative it can be practically speaking; it’s intentionally marketing a game where players can fight with creatures from literature and ancient legend, which are creatures WotC can’t own. Granted, they’ve created some of their own creatures, but frost giants and fire-breathing dragons are the real draw. Even the CR (“challenge rating”), which at first blush appears to be a completely arbitrary choice, roughly reflects the power level expected for a standard cyclops based on its mythological legend, but varying that CR isn’t creative anyway. It’s just a means to allow characters of different levels to face the same creature as provided in the game mechanic.

What does the presence of the action, Rock, say about cyclopes? It says they tend to keep boulders around for throwing at enemies. Besides being an intuitive and logical assumption about a cyclops, that’s also part of the culture presented in the Odyssey, so no one owns that cultural element. The cyclops is also given a greatclub as a weapon, which does bludgeoning damage, but as cyclopes are known as talented weaponsmiths, there’s no weapon that a cyclops could wield that could be considered a creative choice. Cyclopes wield all of them, including exotic ones not commonly used by Greek and Roman soldiers. Moreover, in 5th edition D&D, it wouldn’t even matter. If the cyclops had a longsword, the mechanics of the character wouldn’t differ; the attack expression would remain “+9,” and the damage expression would remain “22 (3d8+9).” The only change would be to the damage type of the weapon (slashing), which would be creatively insignificant, and overwhelmingly mechanical, impacting resistances, immunities, and vulnerabilities of the cyclops’s enemies.

What about synonyms? Is there an acceptable synonym for “neutral”? In this context, neutral describes where a creature falls along the two philosophical axes of good v. evil and lawful v. chaotic. Sometimes it means (more or less), “switching between the two extremes as circumstances dictate,” and at other times means, “having no regard for either of the two extremes.” There’s probably not a single word that can generically express either term, but even if there were, WotC wouldn’t own it. Any other interpretation of copyright law would render copyright completely unworkable. “Hit points” as a means to measure health is a bit stronger case for WotC. The term hit points is, to borrow from trademark law, suggestive of health rather than a direct identifier of health. By itself, “hit points” may not be creative enough to justify a copyright, but it is creative philosophically speaking. Similarly, armor class is suggestive because it’s actually a poor descriptor for what it represents. Armor class represents one’s ability to avoid harm; however, for many characters, Dexterity in particular, and other abilities on occasion, are more significant than their armor for determining their armor class. Some characters don’t even wear armor yet manage to boost their armor class noticeably even without magic. That makes “armor class” creative. However, despite these potential arguments in WotC’s favor, the abbreviations “HPs” and “AC” are not protectable, nor are more direct identifiers like “initiative,” “Strength,” etc. This explains why no other (non-OGL) game systems use “hit points,” but many use “Strength,” and some use “HP” for “health points.”

As to alignment, what if a third-party were required to use “nonaligned” (assuming that doesn’t violate WotC’s copyright in 4th edition for “unaligned”)? WotC uses neutral and unaligned, and the third-party uses nonaligned. What does the next person use? Eventually, the language runs out of words to describe the idea. The use of a single word or two to accurately express a complicated concept cannot fairly be deemed copyright infringement. Instead, copyright focuses on that “expression” of the complicated concept. When one person writes a few sentences explaining the concept of neutrality, then the specific way that paragraph is written may be protectable. Simply saying “neutral” isn’t. While personality is a component of copyrightable subject matter, and “chaotic neutral” certainly describes part of a character’s personality, it isn’t nearly enough to represent a meaningful personality. Too many characters in both the real and fantasy worlds are “chaotic neutral,” and the character’s alignment tells the reader nothing about the character’s ambitions, background, or even personality to any appreciable degree. “Chaotic neutral” in isolation is just a game mechanic, and in the case of a cyclops, it’s exactly as they’ve been portrayed for millennia. However, even if WotC had chosen to make them lawful good, there are far too many other lawful good characters to assume that a mere change of alignment will make a cyclops copyrightable. It’s simply not creative enough.

Stat Block Structure

The structure of a stat block is functional, based more on readability than artistry. WotC didn’t have to choose blood red as the color of their highlighted text. In the interests of staying as far from infringement as possible, the one-stop stat blocks use purple, though it wasn’t necessary to do so. The fact that some text is highlighted is similar to what WotC did, but that’s also a matter of function (i.e., readability), not artistry. WotC doesn’t have a claim to functional structure based on psychological principles governing human perception.

Nevertheless, there are several means to present gaming information in a format that’s readable, so does the law require third parties choose another way? The fact that every game designer’s goal is to make the information readable, and thus serves a functional purpose, suggests not. However, the argument is even stronger when considering how limited those means are, as well as how the notion of “substantial similarity” affects the analysis. Looking at stat blocks across game systems, all of them present the same mechanical information more or less, and every conceivable combination of presenting that information has been used (multiple times, in fact, without infringement lawsuits). The claim that every conceivable combination has been used rests on the fact that slight variations of those formats would be deemed “substantially similar,” and thus still infringing the stat blocks as presented in existing systems. There’s nothing new to create, which means that granting a copyright in stat block design would prevent any new game system from being marketable.

Unsurprisingly, I’m unaware of a single instance when any game designer issued a cease and desist letter based on the format of a stat block. This is important in light of the fact that there are so many well-known game designers that have published similar stat blocks for decades. If WotC’s argument becomes, “But you can’t use that particular stat block design with our specific game rule system,” then they’re using the uncopyrightable game system to pile on to a format (copyrightable or not) and claim copyright in the collection, which as discussed, they can’t do. Note, however, that WotC didn’t appear to be claiming stat block structure in their takedown request. In their email, they wrote (in pertinent part):

Wizards realizes that the Dungeons & Dragons books are more than just “rules” or “instructions.” The text is highly descriptive, and as such, is inherently copyrightable.

Wizards requests that you remove your stat blocks, or create your own material under the Open Game License.

That is, they focused on the text’s “highly descriptive” nature (without justification, of course). They never mentioned the stat block structure. Their omission doesn’t prove one way or the other whether they can copyright that structure, but it suggests they know they can’t. If they felt they could protect the structure as well, they probably would have included that in order to make as strong a demand as possible.

Are we out of the Woods?

This isn’t to say that it’s impossible to create stat blocks that are protectable under copyright. A creative (and thus largely unreadable) stat block could be protectable. Also, sufficiently complex content could express a backstory, biology, culture, ecology, personality, or other protectable aspect of the creature or creature type that deviates from established literature or mythology. For example, frost giants and dark elves, as species, aren’t copyrightable; their existence in Norse mythology precedes the concept of copyright itself. Let’s say a game designer writes a stat block for a frost giant that includes the following characteristic: “Due to their allegiance with dark elves, when within 60’ of a dark elf, the frost giant is immune to fear effects.” This implies something beyond the mechanics of the game; to-wit: it says that, in the game world, the dark elves and the frost giants have formed some sort of pact. By itself, this shouldn’t be enough to rise to the level of copyright protection, and it’s probable that this characteristic exists for purely mechanical reasons, but at least it’s a start towards providing enough information about the culture of frost giants that has no apparent basis in mythology or literature.

Instead, let’s say a game designer places this characteristic in a vampire stat block: “If you sing to a vampire, it must follow any commands embedded in the lyrics.” Nothing in mythology or literature suggests that this is a characteristic of vampires (or any creature of which I’m aware), so that’s an original addition to the ecology of vampires. Yet again, by itself this may not be enough to warrant protection, but at least in theory it could be if accompanied by other cultural elements that collectively become copyrightable. Things get a little more complex with this characteristic: “If you say a vampire’s secret name, it’s banished to another plane.” As before, nothing in history or literature suggests this would work on vampires, but mythology states it would on demons/devils. Exactly how original of a concept is that then? It was borrowed from a concept applicable to a different legendary creature, so it wasn’t particularly creative, but the standard for copyrightable creativity is low. It’s a greyer area because it’s a stock ability, but it is an original addition to the vampire as a species. That said, as mentioned above, courts suggest this isn’t enough to warrant protection.

In summary, stat blocks potentially could be copyrightable, but they would have to contain content that very few (if any) contain. However, the second article discusses the difficulties of complex stat blocks.

Trait and Attack Titles

Single words aren’t copyrightable, but a group of words (i.e., a long sentence or paragraph) are. Exactly when does a string of words tell a story that rises to the level of copyrightability? There’s no hard and fast rule, but it’s clear that even two or three words wouldn’t do it. The less words that are used, the more difficult it is for those words to rise to a level of creativity sufficient for copyright. Any other approach would have absurd results. Trait and attack titles are a collection of just a few words, so they provide good examples as to why an author can’t receive a copyright in only a few words.

Look at the ghost stat block on page 147 of the Monster Manual. It includes a trait, Horrible Visage, which provides that merely looking at the ghost will frighten a character. WotC can’t own an idea, but assume for the moment that “Horrible Visage” is a copyrightable expression of that idea. If so, then one would have to rename the trait when reproducing the stat block. Pulling out the thesaurus, one could settle with Horrific Appearance, which is an apt title for the trait. Unfortunately, on page 179, the sea hag has a similar trait called, Horrific Appearance, disqualifying that for use. Combining the two (i.e., either “Horrifying Appearance” or “Horrific Visage”), would violate both copyrights, as both options are substantially similar to the two as they appear in the Monster Manual. By adding this trait to just a couple more monsters, WotC could copyright every combination of synonyms in English to prevent anyone from ever providing a title for this trait for any creature. This is why these titles absolutely cannot be copyrighted. There must remain a way for the public to title this trait.

Clearly, these titles, by themselves, most certainly do not justify copyright, nor should they. Combined with the descriptive content of the trait, the combination could be copyrightable, but as discussed above and as will be discussed in future posts, where the descriptive content is purely mechanical, no copyright will exist even with the combination.

Now Are We out of the Woods?

Again, not quite. Things get just a bit more complicated when the stat blocks in question contain spells and spell-like abilities. However, spell descriptions will be the subject of the next post in this series, so those stat blocks will be addressed at that time.

The Bottom Line

If stat blocks don’t go beyond the traditional description of the traits of a mythological creature, or how those traits are expressed properly within the context of 5th edition mechanics, then the game designers have no right, nor should they, to forbid them from being republished by a third party. Drawing that line can be difficult, but even if there’s an arbitrary choice being made in a stat block, it still may be safe to republish, as that choice must represent a modicum of creativity to warrant protection. A stick figure is creative in nature and thus copyrightable subject matter, but most of them aren’t creative enough in practice to warrant a copyright. Some are. For the vast majority of stat blocks, the analysis is easy, and you should be able to republish them. Just keep in mind that large companies are better able to finance a lawsuit than you are.

What’s Next?

The next post will address the copyrightability of spell descriptions, and then the third will expose the true nature of the Open Gaming License.

68 thoughts on “Part 1: Copyrightability of #RPG Stat Blocks #DnD #copyright #iplaw”

    • Hello Frylock,
      Many of us (especially content creators) really appreciate what you are doing here. I did want to mention something fairly new that is beginning to create quite a buzz. I thought you might like to get ahead of things and address it in a future blog.
      The current questions arising are…
      1. What are the legalities of hosting a pay-to-play game with copyrighted content?
      2. What are the legalities of earning income from streams/videos that feature copyrighted content?

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  2. Correction: I’ve been informed that some non-OGL games use “hit points” as their term for health (see, e.g., the Arduin Eternal character sheet http://vdocuments.mx/arduin-eternal-character-sheet.html; Runequest https://www.chaosium.com/runequest-character-sheets/; and Adventures in Fantasy https://oubliettemagazine.blogspot.com/2010/04/free-to-download-advanced-character.html). While I don’t believe “hit points” is creative enough by itself to warrant copyright protection, the existence of these character sheets don’t strictly disprove that. Each of these games were published after D&D, and unlike a trademark holder, a copyright holder doesn’t lose their copyright for a lack of enforcement. There is a statute of limitations on enforcement of copyrights (https://propertyatty.wordpress.com/2019/06/14/defendingcopyrightssol/), but the copyright doesn’t cease to exist due to nonenforcement. If hit points, saving throws, etc. collectively gave rise to a copyright, WotC could suddenly decide to change gears and start enforcing it. (*** Keep the threat of such a scenario in your heads when you read part 3.)

    Again, I don’t believe these terms are creative *enough* to warrant copyright, and I certainly don’t think they *should* be considered creative enough (in the world according to Rob), but a court could always disagree with me on that.

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    • I recall – though I may recall incorrectly – that “hit points” were themselves derived from an older naval wargame, from which the folks at TSR (Gygax and Arneson in particular) borrowed concepts and rules when moving from a wargame footing to a more heroic RPG one. I believe this was detailed in Peterson’s “Playing at the World.”

      Ah!

      https://www.pcgamer.com/the-history-of-hit-points/

      “Arneson had previously made his own rules for a naval wargame set during the Civil War called Ironclads, and together with Gygax had collaborated on a Napoleonic naval game called Don’t Give Up The Ship! Both games had a mechanic that allowed for ships to take multiple hits before being sunk, which they’d borrowed from the wargaming rules designed by author Fletcher Pratt in the 1930s. They borrowed those rules again for D&D.”

      The key bit is that they, in fact, *borrowed* the rules, and I believe the term; Armor Class was similarly taken, I think, from the naval wargaming lineage. I suspect that when push comes to shove, the fact that the term was borrowed from a publication pushing 85 years old would put any attempt to surround the term hit points (or armor class, for that matter) on thin ice.

      (FWIW: GURPS uses “hit points” as well, while The Fantasy Trip just calls them “hits.”)

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      • I was vaguely aware of this but didn’t discuss it for two reasons. First (obviously), the post was long enough. 🙂 Second, my recollection, which isn’t contradicted by your reply, is that they weren’t actually called “hit points” by the Navy. If you could copyright “hit points” (a huge if, as far as I’m concerned), but if the Navy didn’t actually use that specific term, no copyright is at issue . As you say, they used the same “rules,” but as my post makes clear, rules (a.k.a., mechanics) aren’t copyrightable, so again, copyright wouldn’t be an issue. No one can (nor should!) own them. I don’t recall Armor Class as being part of that discussion, but I may have drifted away from it before reaching that point.

        But hey, we’re both going to get C&Ds from WotC for our replies because we’re using both terms here. How dare we! 🙂

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      • I’m a bit confused by Frylock’s response; how did the “Navy” come into this discussion? Fletcher Pratt’s rules, etc. weren’t in, authorized, or used by the U.S. Navy, to my knowledge.
        Separately, I’m not sure if Pratt actually used the specific construction of “hit points”. The most Peterson says is, “The published 1974 version of Dungeons & Dragons… offers as an alternative a universal concept of ‘hit points’… At a high level, these hit points resemble those of Fletcher Pratt: sources of damage quantify their magnitude in points, and targets of damage have a set and finite threshold…” (Sec. 3.2.2.2)

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      • Douglas mentioned a “naval wargame.” My recollection was that this was an actual wargame by the US Navy, but as I said, don’t trust my memory on that (and I haven’t looked it up since). Also, Douglas could simply be talking about something else altogether. Your confusion is almost certainly my fault.

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      • N.B.: I’m very familiar with what Douglas is referring to, and none of those games (by Pratt, Arneson, Gygax, and Carr) are U.S. Navy related. Hope that helps (I’ve been curious about a challenge like this for decades now.)

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  4. More long-windedness.

    Someone asked a very good question on Twitter. He had only 280 characters to do so, so I’m going to paraphrase and expand on it here.

    “Even if you’re legally permitted to republish, for example, the standard Goblin stat block, why would you do that? Why not do something that hasn’t been done before, like putting a goblin on a wolf and giving him a lance? To my knowledge, the Goblin Lancer hasn’t been done before, so isn’t creating your own monsters the goal (i.e., creating new art)?”

    The purpose of the one-stop stat blocks (“OSSBs”) were to provide something WotC hadn’t: A self-contained stat block that a DM can use without having to carry around sourcebooks with spell descriptions. For that reason, the OSSBs were originally limited to those that had the Innate Spellcasting or Spellcasting traits in them. Thus, whether you personally could make use of them or not, the OSSBs were adding to what the community already had at their disposal. That was the point; I actually was adding something new, which is a point easily lost considering that they represented the same monsters.

    The goblin stat block had neither the Innate Spellcasting nor Spellcasting traits, meaning it’s already self-contained, so it wasn’t part of the original project. The only reason it will be upon republication is that WotC has committed copyright misuse, and so they need to learn a lesson. If WotC weren’t acting in bad faith, the goblin stat block would not be republished.

    Side Note: I’ve mentioned this before, but I think it’s important you know this in case you’re questioning my motives (as some of you certainly are; I’ve already implicily been called a “dick” by some with which I’ve been friendly for over a decade). I received several complaints about the project early on, the most egregious of which I’ll share here. A guy on ENWorld complained that they really weren’t “one-stop” because he still had to own a Monster Manual. I explained that “one-stop” referred to the individual stat blocks, not to the project as a whole. My intent wasn’t to replace the Monster Manual, thus damaging WotC’s sales, but rather to enhance it by making the game more accessible to people who wouldn’t play it (at all or as much) if they were forced to carry around a ton of books, if game play was slowed down by having to look up spells, or if game play was made less fun by just saying, “Screw it! I just cast Fireball again!” This guy thought I owed him a free copy of the Monster Manual. For this reason, I reneged on my offer to release the Word version of the project. This project was a ton of work that took over a year to get to where I am now. I knew that people wouldn’t want to redo the work themselves, so by releasing it only as a PDF, I dramatically increased the chances that people would limit themselves to what I reproduced, which still meant they needed to buy the Monster Manual. Moreover, because my text isn’t a direct copy of WotC’s text, my text would occasionally have ambiguities and holes in it, again requiring you to have a Monster Manual to reference in case you didn’t understand what I wrote. You’d quickly get the hang of my shorthand, but even then, the OSSBs require the Monster Manual to resolve disputes. Players use those monsters for their animal companions and familiars, so disputes could reasonably arise.

    In all sincerity, despite WotC’s behavior, I must admit that if you play 5e, you absolutely should buy the Monster Manual. I always appreciated its value, but having gone through and analyzed literally every single stat block in it (and in other sourcebooks), I appreciate it even more. It provides you with a ton of good material for the creatures themselves, but also serves as inspiration for writing interesting encounters. You won’t get the latter from the OSSBs.

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  6. I get what you are saying, but if you did simply just take stat blocks directly from published literature, you are lessening the cause for fans to purchase said literature, so I can see it from the other side as well.
    You may not believe that there should be any trouble because it would be inconvenient for you if there was, but frankly, I think WoTC has the right to act to protect their copyright.
    Something like this definitely does need to be settled in court because people generally have a penchant for justifying their actions regardless of what they are.
    Just explaining something away in so many words is a cop out to me. If you really do believe that you are justified, you absolutely should take this to court and set a precedent.

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    • Thanks for your comment.

      No, WotC has every right to protect their copyrights, but the point is that Supreme Court (and other court) precedent stands firmly against a copyright in stat blocks (as WotC has presented them). Moreover, as Justice Kagan recently pointed out in Marvel v. Kimble (a case a patent on a Spiderman webslinging toy), if the Supreme Court interprets a statute one way, and the legislature doesn’t amend their law to correct it after literally decades of opportunity to do so, then it’s clear the Court has no choice but to uphold past precedent. According to that case, that’s the strongest form of stare decisis there is. No way WotC wins back the “sweat of the brow” idea.

      As for demanding I sue, that seems unfair. First, copyright misuse is a defense, and the Fourth Ciurcuit (where I live) hasn’t recognized it as something for which a plaintiff can affirmatively sue. Second, you mildly criticize my use of theory to justify my position, yet I suspect the only reason you’re making this demand of me is because you know I’m a lawyer. Would you expect an uneducated person of limited means to spend $200,000 of IP litigation? If not, then either you shouldn’t ask me to do so, or at least shouldn’t criticize my use of the law to make *a legal argument*. As I said, that’s not fair. Third, I shouldn’t have to set a precedent; it’s already been set in my favor. The burden is on WotC to justify their actions that spit in the face of that precedent.

      There’s much more to say on this, but that will be addressed in part 3. Just wait a little while longer, read that one, and if you still don’t understand, let me know.

      Also of importance: My posts are about what the law *is*, not about what it *should be*. You’re always free to say, “I wish the Congress would change the law,” and your opinion is no less valid than anyone else’s. However, what the law *should be* is outside the scope of my posts. I’m addressing the law, and WotC has skirted around it for far too long at the expense of the gaming industry and community.

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    • BTW, I meant it when I thanked you for the reply. I’m getting far less resistance to this post than I was expecting. It’s good to have someone take me to task.

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  7. I was trying to figure out why they’re just going after you now, when you released the One-Stop Stat Blocks PDF years ago and it’s all SRD material anyway. I see you started converting Volo’s a few months ago, which isn’t SRD. Is that what WotC is actually fussed about? If so, it might be good to mention that at the top of the post, for clarity’s sake. I’ve got no issue with your legal arguments either way, it’s just that the post as it stands is confusing.

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    • They claim they just found out about it.

      I’ll bite my lip right now on the OGL comment. We’ll talk again after part 3. 🙂

      IIRC, the only thing that was posted as of their demand was the MM, so Volo’s had nothing to do with it. I think you’re giving them too much credit. This was a knee-jerk reaction. Based on their email, they clearly didn’t even read the doc. That short email somehow contained several factual errors.

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      • I stand corrected. Volo’s had been released in part. Nevertheless, it’s clear to me that WotC didn’t even read what I wrote. WotC saw that a blogger published 5e material, but they didn’t see the OGL attached, so they had their customary temper tantrum over their perceived monopoly to which they feel they’re entitled. It was a knee-jerk response.

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  8. I’m really looking forward to part 3. As an amateur copyright law enthusiast, I’ve always disliked the OGL for its ambiguity, lack of international applicability, and general weakness as an open license. But I’m eager to see what an actual lawyer makes of it.

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    • Good to hear from you, Bryant. It’s been a while. I’m obviously not going to paste that article as a response here. I’m going to let people read an article before responding to questions that are covered by it. I’ll say this, though: I don’t get into international applicability at all, but I certainly cover its ambiguity and status as a license.

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      • Yeah, it has! I was tickled to see your name in this context.

        I will be patient for the article. I’m not surprised that you’re not touching the international question — it seems irrelevant to the issue at hand.

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  9. 5e stat blocks aren’t open, but aren’t the concepts of the 9 alignments, creature types, the six stats, and so forth covered in the OGL as it existed in 3rd edition, which is what Pathfinder uses to avoid infringing on WoTC’s IP?

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    • The OGL is the subject of the third post, which dissects it thoroughly, so I’m not going to discuss that at this time. I’ll say only this: The OGL is a legally meaningless document, so I don’t care what it says, and neither should you. I have every intention of justifying that assertion.

      Thanks for your question.

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  10. I think you take *Feist* (the telephone book case) too far. The holding was narrow. You really have to have put in zero creativity into a work in order for it not to receive any copyright protection. The phonebook wasn’t copyrightable because it was a compilation of facts that the author didn’t invent, compiled in an obvious way. But things like dental taxonomy, which is simply an organized list of dental operations and corresponding codes, is copyrightable, because there was some modicum of creativity required in assembling it. Other people can create their own taxonomies, but you can’t copy someone else’s.

    Stat blocks are more like a dental taxonomy than a phone book. It’s literally a made up description of a fanciful creature. The particular combination of stats and description did not exist before the author put pen to paper. It’s plenty creative for copyright protection.

    And while it’s true that there are many stock character concepts that aren’t copyrightable, that does not mean one cannot get copyright protection in a character that follows a certain stock character concept. In other words, even though no one can have a copyright in “dwarfs,” Tolkien certainly has a copyright on Gimli. The author gets a copyright in the specific unique, creative things about a character. Why would a stat block be any different?

    In other words, if you’re suggesting that it’s OK to copy someone else’s stat blocks verbatim, you go too far. You can probably create stat blocks of your own (I agree that the layout and format of a stat block is more of an idea than a creative expression, and therefore not copyrightable), there are way too many cases that found creativity in far less to say that stat blocks are not copyrightable.

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    • Thanks for your comment, Jonathan. It’s certainly possible that I’m taking Feist further than the Supreme Court would, but for the record, so do all the district court cases I’ve read. The Supreme Court would have to shoot down everyone (which, of course, it’s free to do). Even so, you still run into the other problems I addressed; to-wit: That the creatures already exist in folklore, etc. and that any creative work is so intertwined with mechanics that forbidding it’s use would be extending copyright to mechanics. As for your specific example of Gimli, what makes Gimli unique? His birthdate, parents, sibling, where he grew up, who he’s fought, etc. What if all those elements (except for his name) didn’t appear in the stat block? All that’s left are mechanics, and those are just ordinary (aka stock) statistics, adjusted to the arbitrarily assigned CR. That’s the way every stat block I know has been constructed. As I say, it’s certainly possible to construct stat blocks in a way that’s copyrightable, but again, if I removed those elements before reproduction, I’d be good.

      I don’t mean to be evasive, but I’m not going to go any deeper than that. I make a much more thorough and organized argument in part 2 that addresses your concerns directly. That should go up on Monday. Let’s revisit this topic after that. You may or may not be convinced, but at least you’ll know exactly what I’m thinking.

      Thanks again.

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      • > “[A]ll the district court cases I’ve read” that pertain specifically to gaming, that is.

        That’s not how the law works, though. It’s not like there’s copyright law specific for gaming where a higher level of creativity is required. And district court cases generally don’t have presidential force. Are there any circuit course cases that back up your opinion?

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      • Not on this particular topic, no. As I said, SCOTUS (or any higher court) is free to disagree, but the specific copyright misuse appellate cases I cited do provide legal standards that back up my assertions in my comment above. I provided links in the post.

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      • Do the cases regarding gaming specifically cover RPGs or are they about things like board and card games?

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      • To give a specific example, check out this Honda advertisement that was found to infringe MGM’s copyright in James Bond.

        MGM clearly can’t have a copyright in “spies” but neither is it the case that they have no protection. In fact, at least from that case, it’s clear that the level of protection is not nothing, and in fact extends further than a straight copy of the character. For stat blocks, there’s some level of originality that would get you outside of infringement, but it’s wrong to say there’s no copyrightable material in the first place.

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      • I apologize. I skirted past your statement that there isn’t a separate copyright standard for games. That’s absolutely true, but as you know, the law isn’t just about the law itself; it’s about applying that law to a specific set of facts. District courts have consistently stated that video games and (especially) board and card games are difficult to infringe. It can happen, and it has (Pac-Man, Tetris, Yeti Town), but over 30 years of precedent shows it’s tough (Asteroids, Donkey Kong, Street Fighter II, Karate Champ, Davinci, and the cases Davinci cites). This isn’t because they’re held to a higher standard (law), but rather because of the subject matter they cover (facts). People have been swinging swords and imagining magical spells for centuries. It’s a bit tough to claim your sword-swinging, fireball-casting gish is in any way “original,” especially when the visual aspects of it are played out in the mind (tabletop gaming) rather than on a screen (video games). Screen play was the basis for victory for Pac-Man, Tetris, and yeti Town, and the only visual element at issue in this discussion is the stat block format itself, which, as you concede, would be very tough to copyright.

        This is closely analogous to how tabletop games are treated in the patent arena. The US PTO was apparently embarrassed by the Magic patent. They now have consultants on standby (one is a friend) that are contacted whenever there’s a tabletop gaming patent application, and tabletop gaming patents are now very tough to acquire. The standard is the same; it’s just that the particular subject matter always seems to fail the tests of novelty or non-obviousness.

        Sadly, much of these cases settle, so there’s nothing right on point, and my argument shouldn’t be taken as a guarantee of victory. Even if I should win, I may not. How many times have you personally disagreed with a court’s ruling? Shit happens, but I think my case is exceptionally strong.

        As for the rarity of copyright misuse, it’s not rare because it isn’t available but rather because it never gets to trial. As far as I know (which isn’t everything), there’s been only claim of copyright misuse that was denied, and that case hasn’t resolved yet. (It’ll probably settle.) I’m sure there are others, but considering how many cases I’ve read, that’s a remarkable track record. FWIW, all five appellate court cases on misuse found that misuse had occurred.

        As for your last point about necessarily being wrong about copyright misuse, I have an ace up my sleeve, which will be discussed in part 3.

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      • You’re still confusing the fact-expression dichotomy with the idea-expression dichotomy. Games don’t fail to get copyright protection because they are facts. Facts are descriptions of the world, thinks like weather data, names and addresses, etc. Games are hard to copyright because most of what you’d want to copyright is the idea of the game, like the rules, how the different components interact, etc.

        But the idea-expression dichotomy only comes into play when you’re talking about similarities. As you say, games have copyright protection in things like their artwork, the specific way they describe the rules, the image on the cards and the board, etc. Those are creative expressions, not abstract ideas.

        So to bring it back to stat blocks, the _idea_ of a stat block isn’t copyrightable. There’s a gray area when you’re talking about a particular kind of stat block, like a D&D 5e one with ability scores for Strength, Dexterity, Constitution, Intelligence, Wisdom, Perception, and Charisma, etc. Not clear whether that’s merely an idea or a particular expression, but I could see it going either way. But straight up copying the stat blocks from the book? I think you’re going to have a tough time arguing there’s no creative expression that you’re appropriating there. Sure, they can’t claim copyright over any sword-wielding, fireball shooting dude, but the specific compilation of ability scores, hp, etc? Why not?

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      • “Because they’re game mechanics, which are treated the same way as facts as far as copyright law is concerned: Uncopyrightable.”
        They’re very different. The phonebook has no copyright. But every _creative_ work has some line between where the expression ends and the idea begins. Your analysis is wrong because it assumes there will be _no_ copyright protection stat blocks, at any level of specificity, but that’s just not true precisely because it is not a fact; it’s creative. To put forth a compelling case, you need to show why the line you’re drawing between the creative expression and the idea is appropriate.
        If you ever revise your argument, you should include Baker v. Seldon. It’s an old case, but it’s fairly on point to the argument you’re trying to make. You might also talk about the merger doctrine, though I don’t know if it’ll help too much here.

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      • As I said in my other response (we crossed streams), I’m writing for two different audiences. I have no intention of copying these posts and shoving them into a legal brief. 🙂 I’ll certainly need to be more precise if this were to go to litigation.

        But this is good stuff.

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      • As I said in my other response (we crossed streams), I’m writing for two different audiences. I have no intention of copying these posts and shoving them into a legal brief. 🙂 I’ll certainly need to be more precise if this were to go to litigation.

        But this is good stuff. I think you’ll be happier after part 2.

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      • I know that it appears I’m confusing facts with creative works in the public domain with game mechanics, etc. You have to understand that I’m writing for two very different audiences. If all of those things are deemed uncopyrightable, then to laymen they might as well be considered identical. For *most* of this discussion, I can just say, “All those independent “facts” are uncopyrightable. (I even put facts in quotation marks in the post.)

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      • Copyright misuse is rare and exceptional. It’s a hail mary. And if you’re wrong about the existence of copyrightable material, then you’d necessarily be wrong about misuse, no?

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  12. […] Marty Durham at Wizards (who is also a friend of mine). Robert posted the first part of—well—retort, I guess you can call it, on his blog. It’s a great read and gives all sorts of fascinating insights into perils and predations of […]

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  14. This was all very interesting until I found that you have put your own copyright claim on your OSSB document … so you are doing the exact same thing as WOTC …. hypocrite.

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    • Thanks for your response. So far only one attorney has provided any negative criticism, and all of the attorneys whose opinions have been brought to my attention agree with at least 90% of what I’m saying. Challenges have been few and far between, so I appreciate it.
      Before I address your claim of hypocrisy, let me briefly point out that you’re overstating the importance of the copyright notice. If I had any intention of selling or restricting access to any of my gaming work – clearly, I don’t – I wouldn’t need the copyright notice to enforce those rights. It’s no longer a legal requirement (https://www.law.cornell.edu/uscode/text/17/401). So why do it? Because I’m pissed at WotC legal, and I was taking a dig at them. However, a friend took me to task on this project and, intentionally or not, grounded me emotionally. He reminded me that my beef was with WotC legal, and maybe WotC ownership, but not with the creative minds at WotC. (I’ll discuss this in depth in part 3). Moreover, because I removed my original work from the project (for reasons that had nothing to do with the dispute at issue), and because having the notice looks bad (even though it isn’t), I thought it was a good idea to remove the distraction. I can assure you that the first drafts of all three of these posts had far worse distractions that have been removed. I’ve calmed down quite a bit from the initial anger and with part 3 will make sure that this doesn’t spill over to the creators at WotC.
      As to your claim, to me hypocrisy means holding others to a standard to which you don’t hold yourself. Google defines it as, “the practice of claiming to have moral standards or beliefs to which one’s own behavior does not conform,” which is about the same. Including the copyright notice in my original material is hypocrisy only if I did at least one of the following:
      1. Claimed or implied that it wasn’t possible to copyright a stat block under any circumstances;
      2. Claimed or implied that I would enforce any such copyright; or
      3. Demanded or implied that WotC shouldn’t have placed a copyright notice on their work.
      As to the first point, I stated in part 2, “This is a fact-intensive analysis. It’s possible to infringe a copyright in reproducing spell descriptions and stat blocks depending on how they’re written. . . .” This is one of many times that I stated that stat blocks were theoretically copyrightable. Moreover, I stated, “this doesn’t mean that WotC would lose any such copyright; it just means that in the specific context of the stat block, it would be unenforceable, and attempting to enforce it would be copyright misuse.” So, as to number 2, if I have ever stated that I would restrict the use of any of my gaming work, D&D or otherwise, you’ll have to point it out to me, and I’ll gladly issue a mea culpa. The same is true for number 3. I’ve acknowledged WotC’s copyright several times, and as you’ll read in part 3, “Remember, I’m not saying nothing is copyrightable in the various Dungeons & Dragons books published by WotC. If that were true, there’d be no copyright to misuse.” You’ll have to point to a specific statement by me where I told them they shouldn’t have used a copyright notice.
      Full disclosure: Somewhere on the FASA: Star Trek RPG part of my blog is a link to my PayPal account. I’m happy to take donations, but having received only a single $10 donation in years, obviously it isn’t a requirement.
      As a final note, I’ll say this. Even if you think I’m a bad guy, under the law, and under any sense of morality, that shouldn’t matter. Legally speaking, WotC “started it.” Recall Lasercomb from part 1. Those guys were absolutely bad guys. They knowingly and willfully infringed valid copyrights, and when confronted, lied about it. They still won because the only reason they were in a position to do something bad is because Lasercomb stacked the deck against them with bad behavior. This isn’t just legalese; everyone I know would agree that you have a right to defend yourself, your loved ones, or your property if someone threatens you first. If WotC weren’t misusing their copyrights, none of this would have happened. I’m sure you’re a fan of WotC – as I’ll discuss in part 3, so am I – but you should try not to lose sight of why we’re all in this position.

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  28. Thanks for this very insightful article. I have an additional question. May seem silly, but given the discussion and climate surrounding copyright law, I couldn’t help but ask…. are the words that WoTC uses for stats copyrighted as well? For example, do they own the rights to use words like Perception Check, or Wisdom Saving Throw? I hope that question isn’t asinine, but I wonder because I plan to release my own adventure and was worried using terms and phrases like that might stoke some response down the line.

    Thank you.

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    • Sorry for the late reply. I discuss this in the second post and one of the comment threads somewhere on that. Here’s a circular from the copyright office that makes it clear that a few words can’t be copyrighted: http://copyright.gov/circs/circ33.pdf. Why not? Because the combination of one, two, or three words (or even a short paragraph) isn’t complex enough to represent the required level of creativity. That is, it’s too simple to expect to give rise even to a tiny amount of creativity/originality. While the level of creativity is low, the complexity necessary to give rise to that creativity is not nearly that low. As a result, names and titles are expressly excluded from copyright protection.

      I can’t address your specific circumstances because 1) I don’t know exactly what you’re going to do; and 2) doing so would constitute the practice of law, which should never be done via the internet.

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      • No ill will on you of course but I wish they had sued you! I’m an attorney (real estate) who loves D&D but have always thought the OGL was absolute and total nonsense. Would love to see that proven in court… 🙂

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      • 🙂

        I get it. However, if I were sued, I’d have to defend myself, and if you like gaming, you probably wouldn’t want my complete arguments to go forward. It would make things a bit more difficult for game designers.

        Yes, the OGL is utter nonsense as a matter of simple contract principles, but it’s initial intent was noble. They now tend to wave it around like a kid that found his dad’s firearm.

        BTW, my practice is almost exclusively real estate now. I do very little intellectual property for clients at this point.

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