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This is the second of my two planned videos about Paizo’s ORC license. This one summarizes the issues I raised in the last video, follows up on one of those issues, then discusses an entirely different topic. I take a side trek towards shrink wrap licenses, but as long as this video is (41:00), I tried to keep it as brief as possible, so I didn’t mention the mild circuit split on shrink wrap licenses. Basically, sometimes the courts uphold them, and sometimes their skepticism has them strike them down. In other words, the concerns I expressed aren’t merely speculation, but rather based on actual disagreement between different courts. But hey; just watch the video. I wasn’t nearly as fired up in this one.
EDIT: After you watch the video, come back here for point of clarification. I say that shrink wrap licenses are being used in a weird way with respect to RPGs. Here’s another way to phrase it. With software, the licensor places a unilateral contract on their product and says, “This product is paired with this license. Use the product, and you accept the license.” With RPGs, the licensor (e.g., Paizo) isn’t putting their license on their own product, but even if they do, it’s not capable of being accepted at that point anyway, so it means nothing so far. Instead, the licensee (e.g., you) are putting Paizo’s unilateral contract on your own product, and in doing so effective saying, “Yeah, I accept this.” But you never actually say that to the licensor. Moreover, if Paizo accidentally figures out that you used the license on the product, they’re never going to contact you. Everyone is in a contractual relationship with everyone else, but most of us don’t actually know it. That’s weird.
Remember, shrink wrap licenses are unproven where it counts, and there are legitimate reasons not to trust them, not the least of which is that they’re unilateral. Now you’re using them in a way unique to an industry that’s rarely subject to litigation of this sort. That’s even more suspect.
Here’s something kind of funny. As you know, Wizards of the Coast (“WotC”) has continuously laid claim to copyright over monster names (which is impossible; let me repeat: impossible) or has leveraged their legitimate copyrights to restrict their use (which is copyright misuse). However lacking in legal force as either position is, that’s been their position. Now WotC has released the SRD 5.1 using the Creative Commons licensed, CC-BY-4.0. As Mike Myler pointed out to me, in doing so, many of these names are now expressly licensed even from WotC’s warped perspective. They’re telling you that you may once again state that beauty is in the eye of the beholder because they’re now licensing you the right to use “beholder.”
Seriously. Do you not see how stupid this sounds?
All of this can be found on page 254 of the SRD 5.1. Both pages 97 and 254 include use of “mind flayer,” so that’s now eligible for use. Or is it? Christian Lindke pointed me to a United States federal trademark registration for “Mind Flayer.”
So, by WotC’s arguments that continuously blur copyright and trademark, they can’t even use mind flayer in a sentence. It belongs to a Chinese dude(tte).
Seriously. Do you not see how stupid this sounds?
WotC legal is stupid, or they think you are. Probably both.
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.
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.
As I’m continuing my data entry of 1e monsters into my database, I relearned a rule I don’t ever recall from my 1e days: Magic resistance isn’t a constant. A monster’s magic resistance is calculated based on an 11th-level caster, adding/subtracting 5% for each caster level below/above 11th. For example, if a monster’s magic resistance is 50%, then a 10th-level caster has only a 45% chance of piercing it, whereas a 12th-level caster has a 55% chance of piercing it. Once again, this sent me down a rabbit hole, though a shallow one.
First, some obvious context. There are a lot of conditions or effects you can place on an enemy creature. These effects become available at various character levels throughout the game, getting progressively more problematic (interesting) as one progresses in level. If you give a low-level character too powerful of an arsenal, it makes the game boring because 1) it’s too easy at lower levels, or 2) if the monsters also get that same arsenal, you run out of effects to earn, and the game becomes the same for far too long during the adventuring life of your characters. Put another way, your 20-level system could have a sweet spot from levels 1-5, with levels 6-20 being identical. I’m sure this is obvious to everyone. Basic stuff.
Here’s where all of this took me. Going beyond 1e, other editions made it a lot easier, for example, to make saves. Save bonuses continued to go up, but certain abilities screwed with that system. For example, in 4e characters might eventually gain the ability to save at the start of their turn rather than the end. One response that undid the value of that ability was that some high-level characters couldn’t be hit by low-level characters no matter the attacker’s to hit modifier, weapon, or d20 roll. That was simply a feature of the NPC.
Magic resistance is a simple, open, uniform, and thus elegant way to implement this. It was a way of resetting the system when characters got to be a certain level. Monster’s still got saves, but a lot of high level spells didn’t grant saves. No worries. The monsters remained a challenge because they didn’t need a save. Magic resistance gave them a secondary sort of save. Another example that wasn’t developed this way, but should have been, was the hellfire created by 3.5e’s Mestopholes. It was fire that penetrated fire resistance, and it was said to worry Asmodeus greatly (see Fiendish Codex II: Tyrants of the Nine Hells). Something like that could have, again, more elegantly been used to reset the bloated system of resistances while still keeping things interesting. Granted, this would require a subtle touch, but 1e magic resistance didn’t piss off the masses, did it? The tiers of 4e (i.e., heroic, paragon, and epic corresponding to 10-level ranges) were perfect for such periodic adjustments. Unfortunately, the desire of game designers to hide their mechanics prevents such elegant mechanics, resulting in unnecessary bloat and math at the table.
Game designers should focus on their characters, campaign settings, and adventures. Mechanics should be streamlined.
That’s a weird title, I know, but it relates to something that’s bugged me about what appears to be a universal approach to game design. It manifests in two general ways.
“Damage Type” Magic Items
What could be cooler than a flaming sword, right? It’s a sword made of metal but is on fire. That’s great. It’s also an appropriate item for a weapon-using character advancing to an appropriate level. Except that it isn’t. It’s actually a curse. If you have a +1 longsword that does 1d8+1 damage, and I have a +1 flaming weapon that does 1d8+1 fire damage, in most cases, we have the same chance of doing the same damage. However, when we face a fire giant, you’re still doing 1d8+1 damage, and I’m doing 0 damage unless I pull out my non-magical dagger. All my fire damage is negated by the fire giant’s resistance. But hey, that’s okay. When we face a frost giant, you’ll still be doing 1d8+1 damage, but I’ll be doing double damage (2d8+2) damage, right? Right? Well, no. Against the frost giant, we’ll both be doing 1d8+1 damage because frost giants inexplicably aren’t vulnerable to fire damage. From a logical perspective (i.e., flavor), it makes sense that they would be, and from a gaming perspective (i.e., having fun), it would be an appropriate trade off considering that fire giants nerf me. However, I rarely see vulnerabilities in monsters when in fact every single resistance a monster has should always be countered by a meaningful vulnerability. That would appeal to both logic (flavor) and game theory (fun).
The pretentious among us (no judgments; that’s me too) may respond that it doesn’t necessarily make you weaker; it just holds you in place. But that’s the same thing for all intents and purposes. In 4e, a +x magic weapon would do an extra xd6 damage, but for a fire weapon, that extra damage would be fire damage. So, the fire weapon wouldn’t make you weaker than you already are, but it would make you weaker than what you should be. At a given level, if you’re expected to have a +2 weapon, then eliminating your extra 2d6 of damage against fire giants is effectively the same thing as weakening you when facing those monsters. You’re weaker than your contemporaries, which means you’re far better off selling the flaming sword than keeping it. In any event, it’s no reward to find one.
I know that curses can be fun, at least for old-school D&D players, but the flaming sword isn’t meant to be a curse, so it shouldn’t be. Yet it is. Consistently. Why? Even in 4e where vulnerabilities were more common than any other game I played, they were still relatively rare, and when they existed, they didn’t balance. That is, a fire giant with resistance to fire of 10 was (of course) vulnerable to cold, but his vulnerability was only 5. Maybe the game was balanced around this discrepancy (not as far as I can tell), but even if so, all this accomplishes is to make the game more frustrating. If you adjust the math so that they could both be 10, people would feel like their found items were actual rewards for a job well done. As I’ve previously discussed, mathematical advantages and disadvantages are illusory. The real money is in doing cool things and telling a good story (the latter not being relevant here). Making yourself useless against fire giants is uncool. Making yourself insignificantly more useful against frost giants is almost as uncool (though it might mathematically come close to balance considering that you can still do a small amount of damage against the fire giant with your non-magical dagger). The boring magic items became better than a lot of the ones that would otherwise be cool.
I should know. I’m the arbiter of what’s cool.
Why do seemingly all game designers do this? It’s maddening.
The 4th Edition Invoker
Here’s another way this manifests itself, though it’s probably far less common. For those of you that never played 4e, the Invoker was a flavorful class. It was the divine equivalent of the sorcerer (c.f., Divine Soul from 3.5). That is, Invokers channeled divine energy not through research or training but through instinct. As a result, they lacked control over those energies, often resulting in self-harming feedback. This meant that, in addition to damaging the enemy, the Invoker’s attacks (usually) dazed the Invoker. Here’s a hypothetical example that demonstrates the problem. Let’s say the Rogue (a.k.a., Thief) has a 3rd-level power (that’s an “attack” in 4e) that does XdY+Z damage and on a hit immobilizes the opponent. The Invoker would also have a 3rd-level power that does XdY+Z damage and on a hit immobilizes the opponent, but then dazes the Invoker. That makes the 3rd-level Invoker weaker than the Rogue. Not just different (which is cool), but weaker (which is not). The class was always behind the curve, but there’s an easy fix for this. Change the Invoker’s power such that it also dazes the enemy in addition to the immobilization. That’s not a perfect solution – PCs are far more sensitive to conditions than NPCs – but it comes close enough for government work. It makes the flavorful self-harm worth it, and thus the class is viable. My experience is anecdotal, but I knew only one person other than myself that played an Invoker. I wouldn’t be surprised if it were among the least popular classes in 4e, and that’s probably a large part as to why.
EDIT: After discussing this on Facebook with a friend, I want to add that the 5e sorcerer’s Wild Magic in 5e technically has a chance of creating negative feedback, but the chances of that are quite rare, and the bonuses it gives in the vast majority of cases (4d10 lightning damage to up to 3 creatures within 30′!!!) is amazingly beneficial. Clearly, Wild Magic is meant to be a boon, not a bust, and it absolutely is one. No balancing feature is needed, but technically Wild Magic by itself is a balancing act, and it certainly is an exception to the problem I’m addressing. Hence, I’m not surprised that the class remains relatively popular.
I think both of these things come from the same place. Again, I ask, why do game designers seem to take this approach? It seems obvious to me that this is a flaw in game design, but I’ve never seen a game even try to get it right, let alone succeed.
I played 1e Advanced Dungeons & Dragons (“1e“) from 1977 to 1982. I received the “blue box” for Christmas 1977, but by 1982, the Satanic Panic pulled me away. I came back in 2005 (completely missing 2e and 3.0e), but by then I was wrapped up in the current edition, 3.5. Last week (when I wrote this post), the 1e Unearthed Arcana had been generating a lot of chatter over on MeWe, but because it wasn’t published until 1985, I was never aware of its existence until long after I left 1e. With my impending return to 1e, I’m creating a database of all the 1e information I can gather and have just finished the slow process of data entry on 1e Unearthed Arcana spells. Having played the 3rd, 4th, and 5th editions, it’s amazing how much iconic material is in the 1e Unearthed Arcana.
Alarm, Evard’s Black Tentacles, Heroes’ Feast, Melf’s Acid Arrow, Mordenkainen’s Magnificent Mansion, Otiluke’s Resilient Sphere, Stoneskin, and Tasha’s Uncontrollable Hideous Laughter (or their equivalents) are among many spells that are in most (or all) of the first Player’s Handbooks for later editions, but that didn’t enter 1e until Unearthed Arcana. I took those spells for granted as part of the game even though I never used them when I played 1e. So, if for no other reason, there’s no doubt that I’m going to allow Unearthed Arcana in my game.
I’ve said it before, and I’ll say it again: 1e has its problems, but there’s a ton of good in there.
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.
By now, most of you nerds must be aware of the newest incarnation of TSR (“newer TSR”). They exist despite the fact that the new TSR (ummmm, “new TSR”) hasn’t died yet. Among other well-known gaming people, Ernie Gygax serves as Executive Vice President. The idea behind the newer TSR is to recapture the magic (get it?!) of the old days of the original TSR and Advanced Dungeons & Dragons. Unfortunately, Ernie casted Dispel Magic in an interview that ruffled a lot of feathers. I’m not commenting on that. As I’ve said, this is a not a blog for political issues, matters of human rights, or nuclear war. That’s way too heavy for this blog. Besides, do you really need yet another voice in this massive choir of commenters? No, so instead I’m going to discuss an aspect of IP law that’s probably relevant to the case and many of you may not know.
Disclaimer
Okay, you knew this was coming, but it’s especially important here. This is not legal advice. All I’m doing is stating the law in the abstract. If someone, including either or the two TSRs, thinks it applies to their facts, then they can hire an attorney to get legal advice. But isn’t stating the law legal advice? No, it’s not. Anyone can state what the law is (e.g., “The speed limit is 55 mph.”). Only attorneys can apply that law to another person’s fact pattern (e.g., “The speed limit is 55 mph, you’re driving 65 mph, and therefore you’re violating the law.”). No district attorney is going to prosecute you for telling someone they’re speeding, but this is an easily digestible example to define “practice of law.” This is key here because I strongly suspect that I have only a fraction of the facts surrounding this case, so it would be impossible for me to practice law here. So I ain’t. Got it?
I’m My Own Inspiration, aka, The Tweet Heard ’round the World
This blog post was ultimately inspired by, well, me. That is, it was inspired by my response to Luke Gygax’s tweets with which many of you are familiar. Of course I was deflecting from the actual topic to the law. It’s what I do.
I have reasons for distancing myself. The way TSR treats people online in their public exchanges is rude. The museum is a for profit business and was asking for donations. Using names of people to promote without their knowledge. Going out of the way to talk gender/woke stuff
What concerns me is that some people give up rights simply because they don't understand them or can't afford to enforce them. They may still have "senior common law" rights to "TSR." It depends on the specific facts I don't have. They really should speak to an IP attorney.
— Rob Bodine, #Attorney by Day, #Nerd by Day & Night (@GSLLC) June 26, 2021
Trademarks and the Constitution
Oh, you thought you were going to get through this without any heavy-handed legal philosophy, didn’t you? Here’s some constitutional law, suckers.
The US Constitution defines a government of limited powers. That is, unlike the states, the federal government lacks power unless 1) the US Constitution expressly says it has that power; or 2) the federal government absolutely must have that power in order to use a power that the US Constitution expressly says it has. As for number two, nowhere does the US Constitution say that the feds have the power to enter into employment contracts, yet they must have that power in order to, for example, create the IRS and hire accountants, admin assistants, janitors, etc., because otherwise the power to collect taxes would be rendered useless.
This is not a controversial statement among lawyers, though lawyers are (believe it or not) human, so many of them sometimes ignore this principle as well because . . . okay, no pontificating. The notion that the feds lack the power to act by default seems to be lost on many people, but there it is. Accept it or deny it, but it’s 100% true.
Okay, back on point, the Arts & Sciences Clause grants the federal government the power to grant patents and copyrights, but it doesn’t mention trademarks. That’s left largely to the states. (Weird, huh? When have you ever heard of state trademarks?) However, there’s a back door that gets the feds into that game. The Commerce Clause allows the feds to regulate “interstate commerce” (i.e., business transactions that cross state lines). If a vendor in Arizona sells something to a consumer in Utah, then that sale could open the door to federal regulation even if the feds don’t otherwise have the power to stick their noses into it. So, the Lanham Act provides for federal registration of trademarks with the US Patent and Trademark Office only if the owner is using their trademark in multiple jurisdictions. If you’re using the trademark in only one state, you don’t qualify for a federal trademark. However, if you do qualify for a federal trademark, it applies across the entire United States. (Well, almost, which will be my ultimate point.)
There’s a limited exception for those with an “intent to use,” but I’ve given you enough to digest.
So what happens if you don’t register your trademark federally? As long as you’re using the trademark in commerce, you develop “common law trademark rights,” but unlike the federal trademark rights, those rights apply only in the jurisdiction or region where you’ve been using the trademark.
If you’re doing business in a large state, common law trademark rights may arise only in your local region. In that case, registering your trademark with that Secretary of State for that state would grant you trademark rights across the entire state.
Seniority of Trademarks
Okay, I’m finally approaching my point. Imagine a situation where I’m using a trademark, Bodine’s Bovines, on my cow farm in Virginia. Therefore, I have trademark rights only in Virginia. Only I can use that trademark in Virginia.
This probably ends as poorly for me as it did the MacDougals.
Next, Fred Bodine (no relation) opens a couple of cow farms, one in Utah and one in Nevada, both using the same Bodine’s Bovines trademark. He registers the trademark federally based on his use across state lines, so now he has a trademark that applies across the entire United States. Finally, I decide to open a second farm in North Carolina. I try to register my trademark federally, but Fred beat me to it, so my application is denied. Also, Fred sends me a cease-and-desist letter preventing me from using Bodine’s Bovines at all. Does he have a right to do that? In North Carolina, yes, but in Virginia, no. I opened my Virginia farm first, and even though I never registered the trademark with either the feds or even the Commonwealth of Virginia, my use in Virginia was “senior” to Fred’s use (i.e., because I used it in Virginia first). However, Fred can block me from using it outside Virginia because he registered the trademark federally before I opened the North Carolina farm.
What if instead I had a federal trademark based on prior use both in Virginia and North Carolina, let it lapse, and then Fred came along and grabbed it based on his use in Utah and Nevada? I’d still have senior rights in both Virginia and North Carolina.
Take a hint, people.
So, you can think of a federal registration as having the same effect of using the trademark in every state starting at the time you registered it. Where you got there first, you get to use it, but you’re blocked where you didn’t get there first. In a more complex case, you could imagine a patchwork of multiple, identical trademarks being used by several different companies in several jurisdictions, with one of those companies having a federal trademark covering the unclaimed jurisdictions. So, the company with the federal trademark could nevertheless be blocked from using that trademark in jurisdictions with senior users. This isn’t a far-fetched scenario, but if its mere possibility surprises you, then . . . surprise!
So, what happens next? Well, when the two parties each have something the other wants, they could strike a deal. For example, each could license the other the right to use their trademark in jurisdictions in which they’d otherwise be prevented from marketing. If both parties are on relatively equal footing, the license fee may be, I don’t know, as small as $10 per year. However, if one party doesn’t realize how much of an advantage they have or lack the funds to enforce their advantage, they may make the same deal.
Sound familiar? No? Well, too bad. I’m not getting into specific cases. 🙂
Epilogue
After completing this post, I found a relevant Twitter thread.
Because @abstruce asked for it, here’s a quick runthrough of what I see are the trademark (“TM”) issues in the TSR dispute. This isn’t legal advice, just an overview of an area that I don’t specialize in. I don’t know any of the facts beyond what I read. https://t.co/kyCZEH9ApG
There’s a lot of overlap, but Orcish Law makes a few other relevant legal points and peppers in a lot more gifs. I left much of that out because I have a tendency to ramble, so I try to keep my posts as short as possible. We both included disclaimers though. It’s what we do.
If the trademark is valuable, and you can afford a lawyer, get one. Otherwise, you’ll have to either cut a bad deal or find a new trademark.
Play What You Want 