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As you all know, someone got a hold of a snippet of the new OGL 1.1 draft. A few people (publicly and privately) have asked me to weigh in based on my Tome of WotC Criticism. Sorry, but I’m not going to make the same mistake many people did jumping to conclusions about the OGL 1.1, so I’m certainly not going to comment on its text that I haven’t read. I’m also not relying on Gizmodo’s interpretation due to all of humanity’s experience with news media. I will remind you all that the current OGL isn’t a real license. No one has signed it, it’s terms for otherwise accepting it are laughable, and it doesn’t actually license you anything.
Beating a Dead Horse
WotC owns its expression of the game mechanics, but despite their implications, they never license that to you. The OGL (even assuming it’s real) uses terminology appearing in both the Patent Act and Copyright Act, saying “this stuff is what we’re licensing.” Those things are stated to be patentable subject matter in the Patent Act and are expressly excluded from copyrightable subject matter in the Copyright Act. And just to be on the safe side, the OGL says (in case it’s not already obvious, paraphrasing):
If any part of what we’re licensing falls under copyright or trademark [you know, such as the specific expression of game rules!], then we take that out of Open Gaming Content, stick it in Product Identity, and don’t license it to you.
No matter how seriously you take the OGL as a license, there’s simply no way to interpret, “processes, methods, routines, and procedures” as including anything copyrightable, which means nothing copyrightable is being licensed. So, despite the SRD containing WotC’s expression of game rules, and despite WotC’s claim to be allowing you to use that material, WotC is free to pull the rug out at any time and say, “You used out expression!” They never actually license it to you because the SRD is not in any way incorporated into the OGL.
Back on Point
It’s a bit hard to answer your questions or respond to your concerns when they’re all based on so weak a foundation, but here’s something on point. There’s a huge debate going around as to whether the OGL can be revoked. For those that say it can, you’re wrong because there’s nothing to revoke. It isn’t real. For those that say it can’t, you’re referencing language from the FAQ and OGL itself that suggests that. Why do you think that language makes it so clearly irrevocable? The FAQ itself states that “people will just ignore [a revocation] anyway.” How is it that a real license can simply be ignored? Because it’s not a real license. The answer to both groups is the same. You’re both right because you’re both wrong.
While the originally stated intentions were noble, this is, at least for at least the past decade or so, a big sham, and it’ll be very interesting to see whether the OGL 1.1 addresses these fatal shortcomings. Even worse for WotC, here’s an attorney taking the OGL seriously and threatening WotC with a lawsuit if they don’t clarify their position on revocation. To defend against any such lawsuit, or even to respond to the letter, may require WotC to take my OGL post and just read it. They’ll have to admit the OGL is a sham. Funny.
For now, though, I’m in the same holding pattern as you. Until we see the text, we don’t know. If, however, the OGL 1.1 corrects its errors as I’ve identified them, my arrogance level will rise so high that, well, I’d probably qualify for employment with WotC legal.
Blog posts cannot substitute for legal advice. If the topics discussed in this post are relevant to a real case you have, please consult an attorney.
I tweeted yesterday!
My dad was born 11 years after #Sherlock's creation and died 25 years before it expired. There is nothing good about a #copyright that easily outlives someone who was over a decade late for its creation. "Limited Times"? By whose standard, #Methuselah's? Copyright needs reform. https://t.co/eoYxaFS9aG
— Rob Bodine, gsllc@chirp.enworld.org or @dice.camp (@GSLLC) December 29, 2022
Okay, it was a retweet. Whatever. Don’t be a pedant. That’s my thing.
To what am I referring when I invoke Methuselah? I’ve discussed the term of a copyright before on another blog, linking to a handy flowchart, but none of that is required reading. All you need to know is that the “term” of the copyright is how long it lasts, and I’m here to argue that it lasts far too long.
Constitutional Authority
Congress’s authority to grant copyrights comes from the Arts and Sciences Clause.
[The Congress shall have Power t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
Article I, Section 8, Clause 8
The Sciences and Discoveries are the subject of patents, and the Arts and Writings are the subject matter of copyright, though these terms are being used more broadly than you’d ordinarily use them. For example, a sculpture is a “writing” in this context because sculptures can be copyrighted. I’m not going to get into that. You’ll fall asleep before I get to my point.
Limited Times
My focus is on “limited Times.” What does that even mean? From who’s perspective must the term of the copyright be limited? The artist? The general public at the time of creation? Humanity in general? An ant? Depending on your choice of perspective, “limited” could be a few minutes or a few centuries, and who’s to say that one interpretation of that vague phrase is better than another? (Spoiler alert: Me; that’s who.) Unfortunately, a 7-2 majority of the Supreme Court in Eldred v. Ashcroft (2003) seems to think it’s effectively unlimited. (Methuselah; remember?) I’m here to tell you why they’ we’re dead wrong.
By the way, you don’t get to blame this on Republicans or Democrats. Justice Ginsberg wrote the majority opinion, and Justice Scalia joined her. Though the two dissenters, Justice Stevens and Breyer, would be considered “liberal” by a layman’s standard, some conservatives would have joined their dissent. Fortunately, I’m smarter than all of them.
Call me smart, right now!
First, lets dive into some Constitutional text. The clause secures rights to “author[s],” not owners, for a limited time, and that’s an important distinction. Even if you sell your copyright, you’re always its author. Look up “copyright termination” for an example as to how this distinction can play out. So, if we’ve secured rights to authors for a “limited time,” then the perspective should be that of the author, not an ant or humanity in general, and not even a purchaser of the copyright (i.e., the owner). Thus, the term of a copyright shouldn’t be designed to outlive the author itself, even if he or she has sold their copyright. Otherwise, it’s not limited from the author’s perspective.
But that’s a bit philosophical, gets complicated when dealing with corporate authors (i.e., works made for hire), and subject to (barely) reasonable disagreement, so let’s further ground ourselves with history.
The first Copyright Act was passed in 1790, one year after the Constitution was deemed to be in effect. Therefore, the same people that debated and approved of the Arts & Sciences Clause did the same for that Copyright Act, and they granted authors copyrights with a term of 14 years eligible for renewal for another fourteen only “if, at the expiration of the said term, the author or authors, or any of them, be living” (emphasis added). The 1790 legislature was trying to keep copyrights from outliving their authors, and they’re the legislature that wrote the Arts & Sciences Clause. Who better to know what they meant? Of course, you can’t provide a guarantee in this regard, because unless you murder someone, etc., you don’t know when they’ll die. The mechanism that was used was the best way possible to minimize copyrights outliving their authors in a way that could be reasonably expressed in a statute, while recognizing that people’s dependence on a copyright might also outlive the author by a bit.
By 1831, members of Congress had lost sight of the original intent of the Founders. The Copyright Act was amended to grant a term of 28 years extendable for another 14, and in 1909, the term became 28 years extendable for another 28 years. For both of those acts, Congress had dropped the requirement that the renewal couldn’t outlive the author, as their heirs could still renew the copyright. While both of these laws should have been declared unconstitutional, even they show a clear intent to keep the term short enough that most people living during the time of a copyright grant would see the work pass into the public domain. That is, even with the 1909 statute’s possible 56-year term, a copyright born during my father’s lifetime would not have outlived him, and certainly would not have outlived the majority of the general public alive at that time. If someone grew up reading Sherlock Holmes, they should have been able to write fan fiction as adults without fear of getting sued.
Mickey Mouse is a Dick
Then Disney started lobbying Congress for longer copyright terms, and all hell broke loose. The current copyright term for a human author (as opposed to a corporate author) is life of the author plus 70 years, or 70 years beyond the life of the last living author for a joint work. Based on my interpretation, life plus anything is unconstitutional, but now the term is life of the author plus another person’s lifetime. This is insane. Note well that the purpose of intellectual property law isn’t to reward authors and inventors for a job well done. That reward is just a mechanism. It’s the means by which we encourage creation and invention. The purpose, however, is to make sure that the public has access to such subject matter. We employ the mechanism to limit affordability for a while so that creators and inventors have an incentive to create and invent in the first place, but the public must eventually gain full access to it. That’s the entire point of encouraging creation and invention in the first place. However, if I write a song today, no member of the current public, or even their children’s public, will ever see it in the public domain. Again, that’s an insane interpretation of the Arts & Sciences Clause cutting against its very purpose, so it simply cannot be the correct one.
Patent Law
We also see support for my interpretation in patent law. While the term of the patent has changed, it’s still only 17 years and not extendable. Thus, my interpretation is consistent with how patents were, and still are, treated. The fact that patent term is stricter is not because their legal foundations are different — they’re both grounded in the Arts & Science Clause — but rather the fact that patents represent a stronger intellectual property monopoly than copyrights. Still, the copyright monopoly is strong enough to warrant similar treatment.
But, But, But . . . .
What about trademarks? Trademarks are probably the weakest of intellectual property monopolies, so that alone justifies their indefinite term (only as long as you’re using them in commerce). Similarly, trade secrets are indefinite, but only as long as they remain secrets. However, there’s an additional consideration as to why these two forms of IP are treated differently: They originate in state law, and the federal government can regulate them only indirectly through the application of the Commerce Clause. I’m sure you’re dozing off, so I have no intention of digressing into that discussion. Just understand that these two forms of IP aren’t subject to the “limited Times” qualifier because they don’t arise from the Arts & Sciences Clause. If you’re still awake and would like to understand this a bit better, you can read my post on how state and federal law intersect on trademarks.
So that’s it. We have a problem, and there’s nothing any of us can do about it. Nevertheless, I’ll shout it from the rooftops: Copyright needs reform.
Rob Bodine is a Virginia attorney focusing his practice on real estate and intellectual property law. He’s currently Virginia counsel with Cardinal Title Group, a Virginia title insurance and settlement company. Rob is also a licensed title insurance agent in Maryland and Virginia.
In case the tweets are ever deleted, here’s an image of them.
Blog posts cannot substitute for legal advice. If the topics discussed in this post are relevant to a real case you have, please consult an attorney.
I’ve previously dispelled a common misconception between copyrights and trademarks. In summary, the “doctrine of laches” does not apply to copyrights. That is, if a copyright holder doesn’t enforce their copyright, they don’t lose the copyright. The doctrine of laches does apply to trademarks. Bayer’s Aspirin is an example of a trademark that fell prey to the doctrine of laches and was subsequently “genericized.” But there’s a legal twist to this story.
The German company, Bayer, held a patent in acetyl salicylic acid (“ASA”), and a trademark in Aspirin to identify it. The patent expired in 1917, but they continued to sell it under the brand name Aspirin, so the trademark lingered. Due to World War I, Bayer lost all its assets including its intellectual property. A new, company, bought those assets (including the trademarks “Bayer” and “Aspirin”) and continued selling ASA using the Aspirin trademark. Unfortunately, “considerably more than 220 tons” of counterfeit Aspirin flooded the U.S. market. This ASA was sold as “aspirin” throughout the general public, but with perhaps only an insignificant percentage of exceptions, manufacturing chemists, retail druggists, and physicians didn’t use or sell the infringing ASA.
In Bayer Co. v. United Drug Co., 272 F. 505 (S.D.N.Y. 1921), Bayer sued to enforce the trademark, and the result was, despite the Honorable Learned Hand’s claim, a first in the law. Here’s the relevant quote, which I’ll next explain.
The case, therefore, presents a situation in which, ignoring sporadic exceptions, the trade is divided into two classes, separated by vital differences. One, the manufacturing chemists, retail druggists, and physicians, has been educated to understand that “Aspirin” means the plaintiff’s manufacture, and has recourse to another and an intelligible name for it, actually in use among them. The other, the consumers, the plaintiff has, consciously I must assume, allowed to acquaint themselves with the drug only by the name “Aspirin,” and has not succeeded in advising that the word means the plaintiff at all. If the defendant is allowed to continue the use of the word of the first class, certainly without any condition, there is a chance that it may get customers away from the plaintiff by deception. On the other hand, if the plaintiff is allowed a monopoly of the word as against consumers, it will deprive the defendant, and the trade in general, of the right effectually to dispose of the drug by the only description which will be understood. It appears to me that the relief granted cannot in justice to either party disregard this division; each party has won, and each has lost.
Id. at 513-14.
What all of this means is that, to the general public, aspirin was no longer a trademark. Anyone could sell ASA to the general public and call it aspirin (with a small A), because to the general public, they were the same thing. However, Aspirin (with a capital A) was still a distinctive mark among manufacturing chemists, retail druggists, and physicians, because they never treated it as a generic term. As professionals in the industry, they weren’t burdened by having to call the generic drug acetyl salicylic acid (or monoaceticacidester of salicylicacid), so they continued to do so. Also, those professionals weren’t willing to trade in infringing goods, so they never did.
The net result was that the trademark was no longer applicable to the general public, but it was still valid when selling to manufacturing chemists, retail druggists, and physicians.
I had a discussion during Winter Vantasy: The Return with Erik with respect to Wizards of the Coast’s (“WotC”) new stat block format. The new stat block has some rearranging of material, but that wasn’t the subject matter of the conversation. We were discussing the removal of spells and spell-like abilities from the new WotC stat block. Erik doesn’t like it and referenced my concerns about the complexity within the current stat block format. Erik referred to my position as “ridiculous,” but WotC’s switch proves that Erik’s view is the minority one. I didn’t have a large enough internet footprint to prove it on my own. More importantly, however, Erik understandably mischaracterized my position. I wasn’t saying that the Monster Manual got it wrong. In fact, quite the opposite. I’ve mentioned before that I think it’s the best RPG bestiary I’ve ever read. My concern is that WotC didn’t supplement it properly, then attempted to shut me down when I did.
Important Note: I’m not 100% certain that WotC’s stat blocks have been changed in the way we’re all assuming they were. I’ve seen a sample of the new format (below), but it was for a low level creature whose stat block would be simple anyway. Thus, this discussion comes from a place of partial ignorance, and I may get some things wrong. Take this all with a grain of salt.
When you look at a complex stat block (e.g., Mummy Lord), unless you have a truly eidetic or nearly eidetic memory, there’s no way you can effectively run that stat block as written, especially if the encounter is a combat encounter. There’s too much going on, and what we’ve all seen (and I actually got Erik to admit to an extent!) is that every DM just gives up and resorts to using the common spells they all know: Magic Missile, Hold Person, Fireball, Counterspell, etc., even for higher spell slots. Why? Well, first you must figure out which sourcebook contains the spell in order to look it up. If it isn’t a Player’s Handbook spell, you may not know, so you wind up searching through a couple of books before finding the correct one. Second, you must read the spell, which could take a while if it’s not one like Fly. If it were a spell like Fly, you may not have to look it up at all, which is why Fly is one of the spells to which DMs eventually resort. Something like Control Weather has far too much going on for most people to memorize. Erik is sometimes willing to do that, but there are very few players whose eyes don’t glaze over with boredom during that long process. Moreover, if you’re playing with a real-world time limit (e.g., convention play), that’s certainly not time you have to waste. At the table, the spell’s details should be right in front of your face. I don’t understand why anyone would disagree, and those with eidetic memories shouldn’t care one way or the other.
That said, in theory these stat blocks provide a framework for the culture of that creature. (In my second stat block/copyright post, I mathematically proved that WotC fails to do so, but that’s not relevant here.) So, the Monster Manual itself shouldn’t eliminate that complexity (I know; WotC can’t win with me), but rather use it as a framework for creating specific monsters within that cultural framework but suited to the encounter at hand. That last sentence is a tough read, so here’s an example. (I’m going from my memory, which is not eidetic.) The Couatl has both offensive and divination spells. If your encounter involved the Couatl using Detect Thoughts to aid in an interrogation, then you wouldn’t need the Couatl to have Shield. On the other hand, that position would be reversed if the Couatl were to engage in combat against the PCs (i.e., it would need Shield but I don’t think, from memory, Detect Thoughts would have value). The Monster Manual stat block provides you the spells a Couatl needs for all situations, but not every Couatl will appear in all situations. In fact, I doubt any will unless the Couatl is a PC, but a Couatl PC is clearly not what I’m talking about. For NPCs at the table, you need only the spells that that specific NPC will need in that specific encounter. Everything else muddies the water. However, it’s good that all situations are covered by the general stat block in the Monster Manual, because that’s what you use to build such table-based stat blocks.
So, in my ideal world, this is how WotC (or any game designer with sufficient resources) should approach their stat blocks. Make them as complex as WotC did in the Monster Manual, using only spell names as shorthand to make the stat block printable, but modify their online tools with check boxes allowing DMs to pick which spells and spell-like abilities appear on a final stat block at the table (whether in hard or soft copy). For that final stat block at the table, make sure that the spell descriptions are presented fully so that there’s no need to resort to multiple hardcopy resources to know details that are relevant to the combat, but at the same time make sure that the stat block isn’t cluttered with irrelevant details. If there are no online tools, provide one-stop stat blocks for all NPCs (as I did) as a PDF. They could also provide PDFs containing generic spell entries with coded placeholders such as, “Magic Missile, Atk: [L]+3+IntMod, . . . .” (or whatever it is), so that DMs could copy and paste them into their own stat blocks as needed. All my project did was the one part of that process that I could, which is something WotC didn’t do.
I fully appreciate that some (most?) game designers can’t do this. Online tools are a huge investment of time and resources they may not have, but some in the gaming community do. Game designers simply need to stay out of the way and allow the community to do that heavy lifting for them. On the other hand, WotC has both the time and resources to create this ideal that appeals to the most people, but they’re still getting it wrong, probably because there’s more profit in selling a new hardcopy (which I suspect will be very good nonetheless).
So yeah, WotC can’t win with me, but only because they’re choosing to lose. We’ll see how the final product shakes out.
Blog posts cannot substitute for legal advice. If the topics discussed in this post are relevant to a real case you have, please consult an attorney.
Note: This post was written almost two weeks ago, but last Thursday night, this topic came up again with my friend, Stephen Radney-MacFarland. It’s an issue that just won’t die, especially in the gaming industry because of WotC’s ridiculous OGL claims.
I read two online posts in as many days making a persistent claim that continues to astound and annoy me. One article here.
Yeah, that even includes supercalifragilisticexpialidocious. The music can be copyrighted, and the lyrics as a whole can be copyrighted, but not that one word. You may trademark a single word, but the protection for trademarks is different. There’s a lot more flexibility when it comes to using a word that’s trademarked.
I completely understand that you don’t understand copyright law. That’s no crime; it’s complicated. However, if you don’t, you should be asking questions, not making authoritative statements on the issue. I don’t know the first thing about performing brain surgery. I’m not ashamed of that, nor should I be, but the day I give advice on how to perform it, please call me out for those ignorant ramblings.
If you’re making an argument relying on the copyrightability of a single word, name, or title, your argument is legally and logically invalid. If your conclusion is correct anyway, it’s mere coincidence.
Blog posts cannot substitute for legal advice. If the topics discussed in this post are relevant to a real case you have, please consult an attorney.
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 Documentcollectively 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 discussedelsewhere, 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.
Having worked in intellectual property law, I like to give proper credit where it’s due. I found this meme and was looking for an excuse to use it.
As I was doing my research as to who produced this, I ran into an issue. I saw this shared on Facebook by a connection (I don’t remember whom), but they shared it from another source, so that person shouldn’t get credit. It looks like they got it from thekratorianchronicles via Instagram, but based on a signature of sorts within the image, thekratorianchronicles doesn’t seem to have created it, so they also shouldn’t get credit.
So, credit belongs to “HORRORFLIX,” but who are they? Searches via Instagram, Twitter, and Facebook yielded far too many entities for me to figure out who owned it. With no logo, Twitter handle, URL, or other unambiguous identifier as part of the signature, I can’t give proper credit despite how important I think that is.
I bought something that arrived on Thursday. It’s stupid, and it appears to be the most brazen example of copyright infringement since Napster (though with far fewer consequences). For that reason, I didn’t want to support it. But I had to. It cost less than $15 with shipping.
I discovered via Facebook a game system known as Bruno’s Earth. I’m not going to post photos because of the nature of the infringement. Instead, I point you to the Amazon listings.
This book shamelessly copies the artwork from the AD&D Players’ Handbook and Monster Manual (and perhaps others), including the covers of the books. There’s no way you know about these books and not know that it’s infringement, yet Wizards of the Coast, who enforces and threatens a hell of a lot more than they have any right to, has apparently taken no action. It’s bizarre. I’d be surprised to hear that Wizards licensed it, but it’s certainly possible. Until I hear otherwise, I’m assuming that. Besides, as Kermit the frog might say, “But that’s none of my business.”
Oh, by the way, I haven’t had much of a chance to review the material beyond the artwork, but I can tell you that it’s riddled with language errors/typos. I’ve been told the game system itself rather sucks. I’ll let you know what I think of that when I’ve had the chance to really look it over.
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Dungeons & Dragons is a trademark of Wizards of the Coast, LLC, who neither contributed to nor endorsed the contents of this post. (Okay, jackasses?)
I’m one of a wake of attorneys that was asked to comment on the recent filing of the above-referenced lawsuit. I’ve spoken my mind but always included my statements with the stereotypical legal caveat that we don’t have all the facts yet. This caveat exists for good reason and is clearly applicable here. All we have is one side of the story, and we don’t have the licensing agreement on which the entire case turns. Ergo, everything at this point is speculation, and I feel that there are enough people commenting that I don’t need to add to the chorus.
That said, there’s one thing that came up in a Twitter conversation that’s important to me, and I felt it was important to expand on it.
I have no vested interest in #Dragonlance, not even as a consumer. My concern is that #WotC has used their ownership of the DL IP to suppress the material rather than market it. That's the opposite of the point of IP. I'd bet good money the authors would publish it if they could.
As I’ve written before, I no longer play D&D, but in my 19 years of playing it, I’ve never played anything in the Dragonlance setting, and I’ve certainly never read one of their novels. (I prefer non-fiction.) This suit has no bearing on my life personally, but certainly does so philosophically.
Why Do We Have Intellectual Property (“IP”)?
Many people assume that the goal of IP is to reward the creator, inventor, or producer. That’s incorrect. The reward is the means to achieve the real goal, which is to make sure that the public — you and I — has access to plenty of art (copyrights) and technology (patents); can instantly know whether they want to purchase particular goods or services based on brand names (trademarks); and have access to lots of other products not otherwise protectable (trade secrets). We assure that goal is reached by giving those creators, inventors, and producers a financial incentive to do what they do by granting them a “limited monopoly” on their endeavors. However, in the end, the point is to serve the public interest. If that interest isn’t being served, why grant the limited monopoly in the first place? There are several exceptions to IP that prove my point, but they’re not relevant here.
Campaign Settings Gone AWOL
Wizards of the Coast (“WotC”) owns the rights to several campaign settings that haven’t had anything significant published in years. We know that WotC will be publishing works within three classic campaign settings in the near future, but we don’t know how extensive those efforts will be, or what their nature will be (e.g., novels, campaign settings, living campaigns). However, it’s been a long time coming, and there are still plenty of other campaign settings that won’t be published soon. How long will we have to wait for those?
When I raised that issue via Twitter, someone with a better sense of their profitability pointed out that it made no financial sense for WotC to publish them. I believe him, and in fact it’s hard not to. After all, WotC isn’t publishing them (or is just getting around to doing so). Obviously, despite their popularity, WotC can’t financially justify producing them. A smaller (yet still competent) company could do so, but only if WotC’s contract terms aren’t so draconian as to make it unprofitably even for them. To my knowledge, this licensing is open only for novels anyway, so we’re still looking at the suppression of the IP with respect to the actual game where they belong.
My Philosophical Issue
The entire point of IP is to get that IP to the public. As steward of these properties, WotC should (not must) get that material to the public. However, the situation effectively uses IP to do the very opposite. The limited monopolies are being used to horde the material, so there’s no legal, viable means through which that material can be marketed to the public. That’s a big problem for me. As I asked above, what’s the point of granting the rights if it means the public won’t get access to the material?
Wies/Hickman v. WotC
According to the Complaint, WotC wants to walk away from the deal altogether. If that’s true, then WotC stands to gain nothing from the Dragonlance IP. We’re right back to square one with that property, but the important point is that WotC themselves have nothing to gain from the property, so they have nothing to lose if the property is transferred to Weis and Hickman.
There’s no legal basis of which I’m aware for stripping WotC of their copyrights in these other campaign settings, so I don’t want to see that happen by force. They acquired the property fair and square. However, if WotC is in the wrong here, and this suit gives Weis and Hickman the leverage to take ownership of the Dragonlance IP, WotC breaks even, and everyone else wins. I wouldn’t be upset if that happened. I suspect that if Weis and Hickman did get the license back, then they’d produce a lot more Dragonlance content than WotC ever would. When I suggested that on Twitter, I received this response:
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This one’s a little dry, but it’s also short.
A copyright protects the expression of an idea. For example, an author can write a poem about springtime, and because the text is sufficiently complex, it can give rise to a copyright as long as there’s at least some reasonable amount of creativity (a.k.a., originality) in that text. However, that doesn’t mean the author now owns the idea of springtime; the author owns only the particular expression of it (and all “substantially similar” variations of it). The reason the idea isn’t protected, but the expression is, should be obvious: If an author copyrighted the idea, then no one else could write about springtime during the life of the copyright. The public must be able to discuss springtime. It’s part of life. (Note: This is also why a single word is never sufficiently complex to earn a copyright. If someone could copyright the word, “spoon,” then the public couldn’t discuss spoons for quite some time.) On the other hand, the author’s particular expression of springtime can be copyrighted because there are a seemingly infinite number of ways for the rest of the public to write about springtime. That is, there are many other options that will allow others to write about springtime while still allowing the author the sole right to copy and profit off of their particularly clever and enjoyable expression, as well as any substantially similar variations of it. This is the essence of copyright.
However, what if there aren’t a seemingly infinite number of ways to express and idea, or what if all the other ways to express it are all substantially similar to one another? This is where the merger doctrine comes into play. In such a case, the expression is said to merge with the idea, such that the expression cannot be copyrighted regardless of how complex the expression is, and regardless of whether the author was actually the first person ever to express it. (In the case of my example of a poem about springtime, that was first done long before the concept of copyright existed.) This is an important doctrine for the reason given above: If not for the merger doctrine, in situations where there aren’t a reasonable number of options available to express and idea, then no one would be able to express it as long as that copyright exists. That is, the copyright would effectively extend to the underlying idea itself. Under current law, the term of copyright is far too long in my opinion, but even if the term of copyright were more reasonable, any amount of time to prohibit expression of an idea is too long. Fortunately, the law recognizes that.
Rob Bodine is a Virginia attorney focusing his practice on real estate and intellectual property law. He’s currently Virginia counsel with Cardinal Title Group, a Virginia title insurance and settlement company. Rob is also a licensed title insurance agent in Maryland and Virginia.
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