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I’m designing a database for 1st Edition Dungeons & Dragons and am close to finishing the data entry on spells. This brought a copyright issue to the forefront. Characters can be copyrighted. This isn’t a controversial position. However, the name of a character is not copyrightable, and unless a name is used as a brand for your line of products, it doesn’t even receive the (much weaker) protection of trademark. So why does everyone remove proper names from spell names when referencing D&D spells?
Copyrighting a Single Word or Short Phrase
While there is no “bright line” rule stating a minimum number of words necessary to secure a copyright, it’s well settled that a short phrase is not copyrightable. Either they lack tiny amount of creativity necessary for copyright (thus likely representing independent creation) or the merger doctrine applies. A simple Google search will uncover a multitude of articles supporting this notion.
Only nothing at all is more minimal than a single word, so there’s no doubt (outside of Poland) that a single word can’t be copyrighted. But even a short phrase, such as the name of a spell, can’t be copyrighted, especially where it’s descriptive of the mechanics of the spell (mostly the case).
The Nichols Case and Copyrighting Characters
The standard for copyrighting characters comes from Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930), in which the Court stated:
If Twelfth Night were copyrighted, it is quite possible that a second comer might so closely imitate Sir Toby Belch or Malvolio as to infringe, but it would not be enough that for one of his characters he cast a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress. These would be no more than Shakespeare’s “ideas” in the play. . . . It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.
45 F.2d 119, 121 (2d Cir. 1930). This has since become known as the “well delineated character” test.
Can a spy be protected? Of course not. What if that spy uses sex as a tool of the trade? Don’t all spies (at least in fiction) do that? How about if he’s a martini drinker? Hmm, that sounds familiar. “Shaken not stirred”? Well. . . . Eventually, we get to the specific character of James Bond, and he’s certainly a copyrighted character, but it took a bit of detail beyond his name to get there. If I created a fictional character of James Bond who was an accountant, I’d be just fine. In fact, I could even have him joke, “I’m not that James Bond.” I’m not using Ian Fleming’s James Bond, just referencing him, and to the extent James Bond is trademarked, readers will understand from context that I don’t have the endorsement of whoever currently owns the character.
The less common, “story being told” test isn’t relevant here, but in case you’re interested, see Warner Bros. Pictures v. Columbia Broadcasting Sys., 216 F.2d 945 (9th Cir. 1954), cert. denied, 348 U.S. 971 (1955) (“It is conceivable that the character really constitutes the story being told, but if the character is only the chessman in the game of telling the story he is not within the area of the protection afforded by the copyright.”).
Elsewhere when discussing the precise boundaries of copyright as it related to plays, the Nichols Court went on to add that, “[n]obody has ever been able to fix that boundary, and nobody ever can.” Nichols at 121. That makes copyright hard, but it’s not impossible, and sometimes it’s even easy. A name cannot be protected by copyright, even within the context of a spell name of a few words.
Tenser’s Floating Disc
So why do so many of you seem to think that you’re avoiding copyright infringement by avoiding writing, “Tenser’s Floating Disc,” “Mordenkainen’s Magnificent Mansion,” and “Tasha’s Hideous Laughter”? Based solely on the text of the spell as written, can you tell who Mordenkainen is? Is Mordenkainen the wizard that wrote the spell? The wizard’s significant other, child, or pet? The name of the Wizard’s favorite watering hole anthropomorphized into the owner of a mansion? Even if the original spell as written by TSR contained the answers to such questions in sufficient detail to flesh out the character (it didn’t even try), a reproduction of the spell not including such information, but rather limited to the spell’s mechanical effects, wouldn’t infringe on the character of Mordenkainen just by using the name. The name isn’t what’s copyrighted; the combination of several traits defining the character are, but they’ve been left out.
Seriously? You think WotC can restrict use of the name, Tasha?
This is as ridiculous as, for example, using the word “Forgeborn” for “Warforged” as if WotC owns the word, “Warforged,” and that use of “Forgeborn” relieves the writer of any infringement of WotC’s text describing the species. Such a writer is focusing on the wrong thing. Think of it this way: If you think that dropping the name off of the spell cures your text of copyright infringement, then you concede my point that spell text describing the mechanical effect of a spell within the context of an RPG isn’t usually copyrightable. Great! However, you then must be thinking** that the name itself is where the copyright lies. That can’t possibly be true. It flies in the face of every knowledgeable commentator (again, outside of Poland) that’s ever addressed the issue.
** Unless, of course, you’re still under the mistaken impression that the OGL is somehow a valid contract, and that its terms, if taken seriously, wouldn’t constitute copyright misuse. But if you really want to know why that’s silly, you’ll have to read that long post.
There’s absolutely no legal reason not to use those names in spells, and it doesn’t hurt WotC at all to use them (other than perhaps robbing their arrogant legal department of their hubris). Why is this important? Because there are too many misconceptions about copyright law that have had far reaching consequences to the gaming industry and the gaming community in general. The text of the Open Gaming License and System Reference Document collectively foster this misinterpretation, and I suspect (can’t prove) that’s an intentional scam. If WotC legal gets you to focus on the word, “Tasha,” but does nothing to stop you from copying the text of the spell, then you still may be infringing whatever copyright they arguably have. If you do something that’s 100% legal later down the road, but it’s something they don’t like, they can go after you for that infringement. As I’ve discussed elsewhere, this can often lead to copyright misuse, but most gamers aren’t sophisticated or wealthy enough to hit back on those grounds. More importantly to the community as a whole, while using these names in spells is not creative on your part, your misconceptions eventually lead down the road of stifling your own creativity. The purpose of copyright is to promote creativity. When copyright law stifles creativity, its entire purpose vanishes, in which case we may as well not even have copyright.
You can’t know what you can’t do unless you also know what you can do.
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