Legal Questions: Games Are Not Protected by Copyright (?)


Other RPGs


I am interested in developing, publishing, marketing, and sellng supplemental material and adventures for 2e AD&D rules, but am confused about the legality of this. There has been a huge amount of work put into the development of 3e's Open Gaming License and the products spawned by the d20 system, but looking at this page about copyright law, it seems that all of that was just an exercise in smokescreen and stupidity:

"Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it." Full text

Any lawyers viewing this thread, please comment. Anyone who has developed AD&D compatible products outside of the OGL, please comment as well.

Thanks in advance...

Silver Crusade

Pathfinder Adventure Path Subscriber

The copyright does not protect the name "role-playing game", the idea (a bunch of folks playing imaginary interactive theatre) and the method (use of dice to determine results based on pre-generated data).

It protects the name Dungeons and Dragons, the 2ed mechanics, the 2ed monsters and spells.

If you would start to publish and sell 2ed supplementary material, I would expect a cease and desist letter shortly. If not worse.

The OGL lifts legal protection of stuff included in the SRD.

Pretty simple :)


Gorbacz wrote:

The copyright does not protect the name "role-playing game", the idea (a bunch of folks playing imaginary interactive theatre) and the method (use of dice to determine results based on pre-generated data).

It protects the name Dungeons and Dragons, the 2ed mechanics, the 2ed monsters and spells.

If you would start to publish and sell 2ed supplementary material, I would expect a cease and desist letter shortly. If not worse.

The OGL lifts legal protection of stuff included in the SRD.

Pretty simple :)

Is it that simple? From the link:

"Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form.

Material prepared in connection with a game may be subject to copyright if it contains a sufficient amount of literary or pictorial expression. For example, the text matter describing the rules of the game or the pictorial matter appearing on the gameboard or container may be registrable."

The OSRIC project also serves as an interesting example:

About OSRIC™

OSRIC™ represents a compilation of rules for old school-style fantasy gaming. The book is intended to reproduce underlying rules used in the late 1970s to early 1980s, which being rules are not subject to copyright, without using any of the copyrighted "artistic presentation" originally used to convey those rules. In creating this new "artistic presentation," we have made use of the System Reference Document produced by Wizards of the Coast.

--------------------------------------

The rules and mechanics are not subject to copyright. The "artistic presentation", including trademarked names, are protected. It seems like if someone were to develop supplemental materials for 2nd edition rules without using/violating trademarks, that would be legal. If someone were to produce an OSRIC-like document compiling the rules and mechanics of 2nd edition AD&D in a new artistic presentation, would that be acceptable?

It would be helpful to hear from lawyers. If you are a lawyer, please state that in your reply.

EDIT: I see from his profile that Gorbacz is a lawyer. Thanks for your response, Gorbacz. What is your take on the approach of the OSRIC™ folks?

Silver Crusade

Pathfinder Adventure Path Subscriber

OSRIC's legality is a murky topic, as it skims the borders of OGL. I suppose it's out there because it's a free project, and as far as I recall some obscure threads on Enworld the WotC stance was "we don't sue, we don't authorize, keep the project clean and don't mention D&D, ever".

In essence, the OSRIC is a legal "hack", it uses 3ed terms and mechanics to emulate 1ed.

You could likely make a "hack" of 2ed, but you would not be able to use any 2ed-native names (eg: THACO), and bascially work off the OGL and it's terminology.


Hiya.

Gorbacz wrote:

OSRIC's legality is a murky topic, as it skims the borders of OGL. I suppose it's out there because it's a free project, and as far as I recall some obscure threads on Enworld the WotC stance was "we don't sue, we don't authorize, keep the project clean and don't mention D&D, ever".

In essence, the OSRIC is a legal "hack", it uses 3ed terms and mechanics to emulate 1ed.

You could likely make a "hack" of 2ed, but you would not be able to use any 2ed-native names (eg: THACO), and basically work off the OGL and it's terminology.

"Free" has nothing to do with it. OSRIC is out there because it is perfectly legal. WotC may have talked to them, and in that I'd bet they said something akin to "Nothing we can do about it, but don't mention D&D please. If you do, while we may not have much of a legal leg to stand on, we could probably get it at least in the doors...and that would cost a LOT of money...".

As for a 2e knock off...you could probably get away with THAC0, but why do that when you can just call it TH0? Or Vs0? Or something else? The biggest thing is to be careful of specific things that are completely covered under IP law. You could make 2e and have the main campaign take place on the 'Material Plane', but you had better not call it "Oerth" or "Faerune".


Gorbacz wrote:

In essence, the OSRIC is a legal "hack", it uses 3ed terms and mechanics to emulate 1ed.

Actually, this is not true. There is not a single mechanic in OSRIC that barely resembles 3ed, they (AFAIK) are 1ed mechanics reprinted.

For example, the 'reverse AC' (the lower, the better), the 5 different Saves (Death/Paralysis/Poison, Breath Weapons, etc.), the HDs (only flat hp after 'name' level), the different XP tables, Human Dual Class, Demihuman Multiclass, Exceptional Strength (18/xx), Casting Times segments, and so on.

And, as far as I know, the term 'THAC0' was not used until 2ed (see this reference on Wikipedia),

"In Advanced Dungeons & Dragons, a character or monster's ability to strike successfully was measured by its THAC0, meaning the minimum roll needed on a 20-sided die "To Hit Armor Class 0." The die roll needed to hit other armor classes could be computed by subtracting the armor class from the THAC0. The lower one's THAC0, the more likely a hit would be successful. This system replaced combat tables in the 2nd edition of AD&D, but was officially abandoned in the 3rd edition of D&D (2000)."

which is not the purpose of OSRIC in the first place (they state that The book is intended to reproduce underlying rules used in the late 1970s to early 1980s, which being rules are not subject to copyright, without using any of the copyrighted “artistic presentation” originally used to convey those rules), so it's not used for that motive.

(Please note that I'm note associated with OSRIC in any way, I'm merely trying to clarify your assertion).


Thanks for the input, Pming and Wraith. That's helpful and encouraging, and rather in line with how I am perceiving the issue. Are either of you lawyers? While OSRIC makes reference to and reprints the OGL in order to cover potential legal issues, it is not based on a d20 mechanic or derivative of 3e in any way that I can see. It also is not exactly a free project, as hard copies of the books are for sale at what seem to be profitable prices.

I'm looking forward to more input. In the meantime, I've decided, nevermind 2e and AD&D, I'll take it from scratch: check out my new project, Creatheater, which takes an explicit stance on game rules being social property, not intellectual property, and therefore not subject to copyright.


Gorbacz wrote:

The copyright does not protect the name "role-playing game", the idea (a bunch of folks playing imaginary interactive theatre) and the method (use of dice to determine results based on pre-generated data).

It protects the name Dungeons and Dragons, the 2ed mechanics, the 2ed monsters and spells.

If you would start to publish and sell 2ed supplementary material, I would expect a cease and desist letter shortly. If not worse.

The OGL lifts legal protection of stuff included in the SRD.

Pretty simple :)

I don't think that it is quite that simple. Floppy, I think that you need to find out first what the legal status of 2E is. Obviously the name of the game is off limits, but the core books were made by a company that no longer exists, and 2E is, for all intents and purposes, an extinct game, since Wizards discontinued it. I think your first step should be contacting Wizards of the Coast, since they are probably the ones who would object to your project. I would guess they own it, but I really don't know.

RPG Superstar 2010 Top 32

Standard IANAL stuff.

Game mechanics are not copyrightable. You cannot copyright them in the same way that you cannot copyright a name or a mathematical computation.

Role-playing games are more than just game mechanics, though. If you wanted to make an SRD-style document of the mechanics of 2e without the flavor, it would be possible and arguably legal. In fact, that's exactly what OSRIC is: it's a project to make a rules-only, uncopyrightable document with any possible element of its interpretation or presentation released under the OGL.

2e, like 1e, is chock-full of expressive elements (names, art, fiction, fictional concepts, which are all copyrightable) which are wholly owned by Hasbro/WotC. Reprinting or adapting any of those expressive elements, in their original form or in modified form, would be a violation of Hasbro's copyright.

If you want to do this, talk to the OSRIC guys, then get a good copyright lawyer. You're going to need to carefully extricate the 2e mechanics from the copyrightable expressive elements, and they can both help you with this in different ways.

Liberty's Edge

Pathfinder Roleplaying Game Charter Superscriber; Pathfinder Starfinder Adventure Path, Starfinder Roleplaying Game, Starfinder Society Subscriber
A Man In Black wrote:
You cannot copyright them in the same way that you cannot copyright a name or a mathematical computation.

Wonder how those blu-ray lawyers keep shutting down anyone that attempts to create blu-ray copiers if it's not a copyright thing. :P


SirUrza wrote:
A Man In Black wrote:
You cannot copyright them in the same way that you cannot copyright a name or a mathematical computation.
Wonder how those blu-ray lawyers keep shutting down anyone that attempts to create blu-ray copiers if it's not a copyright thing. :P

The DMCA allows a lot of nastiness that shouldn't be. If those BluRay copiers are circumventing a supposed "copyright protection mechanism", that could be how they're hammering them.

As A Man In Black stated, strictly speaking, a rule, method or formula is not able to be protected by copyright. We have patents for a reason.


Brian E. Harris wrote:
As A Man In Black stated, strictly speaking, a rule, method or formula is not able to be protected by copyright. We have patents for a reason.

Right, there's a difference between patents and copyrights. My question was about copyright law in regard to games.


A 2E Floppy-Eared Golem wrote:
Brian E. Harris wrote:
As A Man In Black stated, strictly speaking, a rule, method or formula is not able to be protected by copyright. We have patents for a reason.
Right, there's a difference between patents and copyrights. My question was about copyright law in regard to games.

As long as you express those mechanics in a way that doesn't infringe someone else's copyrighted artistic expression, you're not violating copyright.

Like many others, I'm not a lawyer either, but the sheer weight of "unlicensed" D20-based systems/games out there give credence to the application of this particular piece of copyright law.

(When I say unlicensed, I'm referring to the lack of an explicit license outside of the OGL.)

RPG Superstar 2010 Top 32

SirUrza wrote:
Wonder how those blu-ray lawyers keep shutting down anyone that attempts to create blu-ray copiers if it's not a copyright thing. :P

There are other intellectual property laws. The Blu-Ray logo and name are protected by trademarks, and many parts of its mechanism are protected by patents.

Quote:

Like many others, I'm not a lawyer either, but the sheer weight of "unlicensed" D20-based systems/games out there give credence to the application of this particular piece of copyright law.

(When I say unlicensed, I'm referring to the lack of an explicit license outside of the OGL.)

The OGL is an explicit license.


A Man In Black wrote:


The OGL is an explicit license.

Yes, but the OGL (or SRD) is not a system, and does not provide a set of core mechanics.

WotC did not license the virtually-identical-to-3.5 mechanics/system to Paizo for Pathfinder, for an example of what I was trying to illustrate.

Dark Archive Bella Sara Charter Superscriber

Copyright law is a pretty complex beast, so if you really want a good answer from a lawyer, you need to pay one. It's not a good idea for lawyers to give people legal advice on the internet for free (nor is it a good idea to rely on legal advice you receive on the internet for free).

The big problem is that, although the basic principal you stated (you can't copyright mechanics) is correct, interpreting what exactly that means is very difficult. At the end of the day, you are unlikely to get a clear brightline test or answer. Without a license or other express right to use someone else's intellectual property, the best you can do is mitigate the risks of being sued by cleaving as closely as possible to existing case law. You will always have some risk that the copyright owner will claim that your product infringes. Even if their claim is entirely without merit, the lack of a brightline test means that it would be difficult for a judge to dismiss the claim out of hand. As a result, if you were sued, you would likely incur substantial legal fees in defending your right to use the material even if you are not infringing on any copyrighted materials.

Note that this is not legal advice in any way, shape, or form. It's just a quick overview of why relying upon general principals in copyright law does not provide much protection.

RPG Superstar 2010 Top 32

Brian E. Harris wrote:

Yes, but the OGL (or SRD) is not a system, and does not provide a set of core mechanics.

WotC did not license the virtually-identical-to-3.5 mechanics/system to Paizo for Pathfinder, for an example of what I was trying to illustrate.

Whoa, you're confusing things which aren't even close to the same.

The OGL (or Open Gaming License) is a license to anyone who wants to come along. As long as you follow the rules of the OGL, you're licensed to do the things the OGL lets you do. That's an explicit license, and in that sense Paizo did get a license from WotC to use the 3e material for Pathfinder. The reason the OGL exists is so that game companies don't have to tread on thin ice to extricate the mechanics of a game from the presentation of the game.


Sebastian wrote:

Copyright law is a pretty complex beast, so if you really want a good answer from a lawyer, you need to pay one. It's not a good idea for lawyers to give people legal advice on the internet for free (nor is it a good idea to rely on legal advice you receive on the internet for free).

The big problem is that, although the basic principal you stated (you can't copyright mechanics) is correct, interpreting what exactly that means is very difficult. At the end of the day, you are unlikely to get a clear brightline test or answer. Without a license or other express right to use someone else's intellectual property, the best you can do is mitigate the risks of being sued by cleaving as closely as possible to existing case law. You will always have some risk that the copyright owner will claim that your product infringes. Even if their claim is entirely without merit, the lack of a brightline test means that it would be difficult for a judge to dismiss the claim out of hand. As a result, if you were sued, you would likely incur substantial legal fees in defending your right to use the material even if you are not infringing on any copyrighted materials.

Note that this is not legal advice in any way, shape, or form. It's just a quick overview of why relying upon general principals in copyright law does not provide much protection.

Excellent answer. That's helpful and goes a good way towards clarifying the issue for me. Well, not clarify exactly, since you are saying that there is a huge spectrum of grey areas and untested or unprecedented legal territory just waiting to be explored through lawsuits. I certainly don't have the capital to be incurring legal fees and am not interested in inviting them, nor do I have extra money at hand at the moment to pay a lawyer for advice. Thanks for taking the time to sketch out that overview for me.


A Man In Black wrote:
Brian E. Harris wrote:

Yes, but the OGL (or SRD) is not a system, and does not provide a set of core mechanics.

WotC did not license the virtually-identical-to-3.5 mechanics/system to Paizo for Pathfinder, for an example of what I was trying to illustrate.

Whoa, you're confusing things which aren't even close to the same.

The OGL (or Open Gaming License) is a license to anyone who wants to come along. As long as you follow the rules of the OGL, you're licensed to do the things the OGL lets you do. That's an explicit license, and in that sense Paizo did get a license from WotC to use the 3e material for Pathfinder. The reason the OGL exists is so that game companies don't have to tread on thin ice to extricate the mechanics of a game from the presentation of the game.

If I'm confusing anything, I'm confusing how I'm trying to convey an idea.

What we know as "The D20 System" is not released under any official license, yet a bunch of people are using this system in their OGL products.

The material that you're referring to is the SRD stuff (which I may have muddily mentioned above). Yes, I get that this is released under the OGL, and that it's a distinct entity, seperate from the OGL (i.e. OGL and SRD are not the same thing).

The SRD contains no core mechanics or system, so, again, NO, WotC did NOT license a SYSTEM or SET OF MECHANICS to Paizo (or anyone else, for that matter). They licensed a bunch of content that gets wrapped around said system or set of mechanics, and Paizo constructed their own mechanics, which are virtually identical to the D20/D&D mechanics.

RPG Superstar 2010 Top 32

Brian E. Harris wrote:

What we know as "The D20 System" is not released under any official license, yet a bunch of people are using this system in their OGL products.

The material that you're referring to is the SRD stuff (which I may have muddily mentioned above). Yes, I get that this is released under the OGL, and that it's a distinct entity, seperate from the OGL (i.e. OGL and SRD are not the same thing).

The SRD contains no core mechanics or system, so, again, NO, WotC did NOT license a SYSTEM or SET OF MECHANICS to Paizo (or anyone else, for that matter). They licensed a bunch of content that gets wrapped around said system or set of mechanics, and Paizo constructed their own mechanics, which are virtually identical to the D20/D&D mechanics.

The D20 system, as described in the SRD, is available to anyone who chooses to follow the strictures set out in the OGL. While you technically shouldn't be able to copyright a game mechanic, extricating it from expressive elements is a long, touchy, and most importantly subjective process. Even if they did it perfectly, Hasbro/WotC would be perfectly within their rights to sue, and it'd be a case with enough justification to last long enough to grievously wound Paizo, even if Paizo won. And Paizo is bigger than most 3PPs.

The game system is a combination of mechanics and expressive elements, and Paizo licensed the whole lot from WotC because the OGL is not onerous.

Grand Lodge

I am not a lawyer...

Having said that. Please consider contacting WOTC to see if they would be interested in allowing you to use that material.

I know what you might be thinking, that you might be refused out of hand, but unless I miss my mark, in this industry it is considered the polite and professional way of starting something like this.

At worst, they say no. At best, you might get exactly what you want.

Secondly, if you are going to go into a business, you need to consider having your own professional legal advisor, for many reason. even as good advice you find here, you need your own expert.

I used to monitor the OGL mail lists and let me tell you the whole copyright issue disccussions were frequent and at best frustrating. The only thing that came up again and again that everyone agreed with was, get your own lawyer.

Best of luck in your endevor!


I'm out.

We're arguing semantics around a concept that we're both on the same page about, and likely completely agree about. I'm not trying to insinuate that Paizo (or anyone else) did anything horrible or wrong, or violated any copyright - I don't believe they did.

Anyone can build their own D20-system based game, as long as they're not copying the so-called "artistic expression" of the rules.

Yes, anyone can sue anyone for anything.


Wow, due to a thread bump I now see that Exiled Prince asked almost the same exact question in regard to another system at the beginning of November:

http://paizo.com/paizo/messageboards/community/gaming/otherRPGs/aQuestionAb outCopyrights&page=1#0

Guess I didn't dig deep enough.


A 2E Floppy-Eared Golem wrote:

The rules and mechanics are not subject to copyright. ...

It would be helpful to hear from lawyers. If you are a lawyer, please state that in your reply.

Where is a rules lawyer when you need one? :)

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