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Shadow Demon wrote:Per Circular 34, I can definitely use it in a list for an NPC, monster, or character. In fact, since the format and terminology of the spell description is present in the 5e SRD, the spell could simply be rewritten and fall under Fair Use. There is no reason to do that because the 5e SRD is about writing new not trying to copy existing material.
I believe everything in your post is fundamentally correct, except that the phrase "the spell could simply be rewritten" glosses over something that I think is actually quite tricky.
The problem is that in games, the line between the game mechanic (which is not copyrightable) and the expression of that mechanic (which is copyrightable) is often blurry. Take the Fireball spell from the 5.0 SRD:5.0 SRD wrote:
Casting Time: 1 action
Range: 150 feet
Components: V, S, M (a tiny ball of bat guano and sulfur)
A bright streak flashes from your pointing finger to a point you choose within range and then blossoms with a low roar into an explosion of flame. Each creature in a 20-foot-radius sphere centered on that point must make a Dexterity saving throw. A target takes 8d6 fire damage on a failed save, or half as much damage on a successful one.
The fire spreads around corners. It ignites flammable objects in the area that aren’t being worn or carried.
At Higher Levels. When you cast this spell using a spell slot of 4th level or higher, the damage increases by 1d6 for each slot level above 3rd.
Clearly they can't lay claim to the word "Fireball." And sure, those three paragraphs at the bottom can easily be rewritten. But what about those other 5 lines at the top? Is "Casting Time: 1 action" a non-protectable mechanic, or a protected expression of a mechanic?
If you change "1 action" to, say, "1 step," or if you remove it entirely, it no longer makes sense in the game, so maybe that argues...
Does the fact that, in each case(save the name and the exact material component), the game mechanics in those five lines appear in the SRD on existing spells mean that the terms are in effect Open games content, even if the spell is not?