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In other words, could I publish an adventure which uses the OGL (and the Pathfinder licence) and include within it additional material which is either:
a) non/pre OGL, or
b) OGL where nothing was designated open content
but using only rules-based mechanics.
For example, the 3.5 D&D book Ghostwalk is of type (b) above. This book contains within it a spell called "Bonerattle" which I would quite like to use in my adventure. Although written for 3.5 D&D it hardly needs any conversion. Could I include it in my adventure using the OSR-style copyright exclusion principle and, if so, what should I be careful to do or not do?
Richard
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Can the OGL and "Rules cannot be copyrighted" exist side by side? Yes. Buuuuuuuuuut ...
For example, the 3.5 D&D book Ghostwalk is of type (b) above. This book contains within it a spell called "Bonerattle" which I would quite like to use in my adventure. Although written for 3.5 D&D it hardly needs any conversion. Could I include it in my adventure using the OSR-style copyright exclusion principle ...
No. Absolutely not. Not even close. This is a major no-no.
Why?
Lets start with, "What does 'rules cannot be copyrighted' mean?"
Here's what it means, roughly (a hired lawyer will be able to tell you better, I am neither hired nor a lawyer, disclaimered). It means the basic idea, the math (if you will), behind the system cannot be claimed as one's own. To break it down really far, 2 + 2 = 4 cannot be claimed by any company as their own property. To translate that into direct game terms, no company can say that "if d20 roll + modifier > target number, then success" is their own property.
But what can a company say is theirs? The presentation. So plagiarism is still plagiarism and you can get sued over that. A company might name the modifier. That name is copyrighted. The paragraph that a company types to explain how the mechanic worked is copyrighted. To use your example, the name "Bonerattle," is copyrighted and you cannot use that. Nor can you copy the text from this spell, make a few minor changes and publish it.
What you can do is this: you can take the idea and the mechanics behind the spell, write a completely new spell that uses the same idea and similar mechanics and name it something completely different.
Mind you, if you are writing for a publisher, you should tell the publisher you are doing this. Some are less comfortable than others skating that close to the thin ice area (and yes, this is thin ice). And the publisher will let you know if you should drop this or not. If, however, you are planning on publishing this yourself and making money off of it, contact a lawyer in very short order and have them explain this to you in much greater detail (because there are variations on the specifics of this that depend on where you live). The less you know, the more it can hurt you in the end.
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If Ghostwalk doesn't have any Open Game Content, you can't use it in your third-party adventure. This is a situation where you don't want to cross the streams without legal counsel—keep OSR stuff for OSR, and OGL (and by extension Pathfinder Compatible products) for that.
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Gosh - lots of really quick answers!
Fair enough, though, and I can certainly live without it.
When you look at the idea and mechanics, however, it's basically a short-range spell that does 1d4 points of damage per level to a single creature (with bones) with a fortitude save for half.
It wouldn't surprise me in the least if someone hadn't already written something similar in blissful ignorance that the Ghostwalk version existed. Even Paizo - I mean, how could anyone know everything that's ever been written? There's no master database anywhere. And can you really copyright that sort of mechanic?
Still a bit puzzled, to be honest with you, but thanks for all the answers.
Richard
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a short-range spell that does 1d4 points of damage per level to a single creature (with bones) with a fortitude save for half.
And if that's all you use from the original writing, you should be fine.
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Still a bit puzzled,
Here's the thing to remember: with few exceptions, none of us publishers can survive the time/expense of a law suit. If a publisher decided to put another publisher out of business, all they would have to do is examine all of their products, find something that is "close enough," hire a lawyer and file a law suit. The amount of money the defending publisher would have to pay a lawyer (plus travel expenses and a hundred other small expenses that will pile up fast, plus taking time off of their day job) would easily surpass the amount of sales the publisher had last year. Plus while the defending publisher is fighting the suit, they don't exactly have the time and energy to create new products to sell so the amount of money coming in is going to go down. Even if the defending publisher wins the suit, they are still out of lawyer fees and lost ... gobs of time. More than likely, the publisher will require time away from the company or might even close the doors altogether just from sheer burn out.
Now imagine the plaintiff publisher is Wizards of the Coast, a company that (comparatively speaking) has unlimited funds, can drag the law suit out until well after you declare bankruptcy and it won't cause any slow down in their production schedule since the people fighting the law suit are completely different than those making new products. At that point, it doesn't matter if you are right, or even if you win the suit (which are two completely different things, legally speaking), you're finished as a company and probably economically destroyed in the process. A good scenario would involve you closing your company (like Fast Forward Entertainment did).
So any publisher should be at minimum a little skiddish of doing something that could draw the ire of WotC. Hell, we don't even want to draw the ire of our fellow Pathfinder Compatible publishers. We all know it could happen. None of us want it to happen and to my knowledge it hasn't happened, yet. (Personally I attribute that to the fact that none of us are that big of a d*ck, but I'm sure there are other reasons as well.) But that doesn't mean it can't happen and when you're talking about using non-OGL material, it makes that standard of "close enough" just a little closer.
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Just going from the specific to the general, and at the risk of derailing this thread completely, but it is important, do you think therefore that we live in a plutocracy, and that the principal means by which we are controlled by the wealthy is through fear of litigation?
Richard
That's something that's scared me about many legal systems for a while now. You can win many cases just by being able to outlast your opponent's ability to pay legal fees - or in some cases, their unwillingness to go through the hassle of the process.
Sometimes I think there's a lot to be said for the "person A states their side, person B states theirs, person C makes a decision" with no lawyers involved, approach.
By bringing it up, you've proven that you're not someone in blissful ignorance.Gosh - lots of really quick answers!
Fair enough, though, and I can certainly live without it.
When you look at the idea and mechanics, however, it's basically a short-range spell that does 1d4 points of damage per level to a single creature (with bones) with a fortitude save for half.
It wouldn't surprise me in the least if someone hadn't already written something similar in blissful ignorance that the Ghostwalk version existed. Even Paizo - I mean, how could anyone know everything that's ever been written? There's no master database anywhere. And can you really copyright that sort of mechanic?
Still a bit puzzled, to be honest with you, but thanks for all the answers.
Richard
That's absolutely true, Lazar, but "(with bones)" is the only part of that hypothetical spell description that seems even slightly IP related.
(Also, don't take what I say to count for anything, I'm not a lawyer.)
It wouldn't surprise me in the least if someone hadn't already written something similar in blissful ignorance that the Ghostwalk version existed. Even Paizo - I mean, how could anyone know everything that's ever been written? There's no master database anywhere. And can you really copyright that sort of mechanic?
In this, we're pretty much in the same boat as anyone writing anything, anywhere. If you come up with this fantastic idea for a love story where the protagonists are members of two groups that hate one another and which concludes with death in tragic circumstances, someone somewhere is going to point out how you're plagiarizing.... West Side Story. :)
In court, the problem would be proving that blissful ignorance. It's entirely possible someone could sue you over something you developed 100% in isolation, all they have to do is put together a case that looks reasonable enough.
Generally, my advice is to take inspiration everywhere you can find it, but not to take anything more than inspiration. In the case of a spell that deals damage, I'd probably even tweak the values of the dice to something similar but not exact just to ensure an extra difference from the original (which isn't technically necessary, but I always like to say every change you make puts you one step further away from the copyright minefield.)
Take Dale's advice above and completely rewrite the text from scratch - and if you're creative enough to be writing this kind of thing in the first place, making a few extra changes to differentiate your version from its inspiration shouldn't be any problem, right? :) You could, for example, bump spells up or down a level with a relevant change in power, add in a requirement or feature unique to your game world, and switch classifications (something that works with the undead now works with demons instead, elemental spells are switched to a different element, and so on.)
Just going from the specific to the general, and at the risk of derailing this thread completely, but it is important, do you think therefore that we live in a plutocracy, and that the principal means by which we are controlled by the wealthy is through fear of litigation?
As regards to writing game materials and, well, writing anything, fear of litigation aside, I do not want to plagiarize what someone else came up with or wrote because I respect that person's right to get credit and profit from that idea. And because if I come up with a cool bit of flavor I write about, I know I would feel upset if someone took that from me. For me, the main reason I do my best to respect copyright laws is not because of fear of getting sued (although of course I don't want to be), but because even if copyright laws are are flawed (and I do believe they are), the intent of those laws is to protect artists and writers and their creations, and I respect and agree with that intent and thus agree to abide by those laws.
Writing, say, an OGL game, yes, you are using mechanics and such somebody else made, but hopefully putting your own spin on things (and of course using the OGL, which requires giving the credit and legally forgoes the profit (save indirectly)).
Yes, because, as they say, "there is nothing new under the sun," you might accidentally repeat something very similar to what's been done. You can't necessarily avoid that, but if your intent is not to steal, then hopefully you can prove that in the unlikely circumstance that you are "caught."
On another note, following along with what Dale said, the intent of OSR isn't "rules can't be copyrighted," it's "mechanics can't be copyrighted." There's a difference.
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This is, if I am correct, at least the third thread you have made about weaseling around some of the bits of the OGL that you think are too restrictive for what you want to do.
Just hire a lawyer. I know you've said in the past that you despise lawyers, but if you're actually serious about publishing, especially using something like the OGL, not having a lawyer is essentially business suicide.
Do you really trust the amateur judgment of a bunch of faceless people on the internet more than an actual professional?
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This is, if I am correct, at least the third thread you have made about weaseling around some of the bits of the OGL that you think are too restrictive for what you want to do.
I'm not *weaseling*, I'm asking, and the last thread was 18 months ago. I don't think anyone should ever be attacked for asking questions.
Just hire a lawyer. I know you've said in the past that you despise lawyers, but if you're actually serious about publishing, especially using something like the OGL, not having a lawyer is essentially business suicide.
I already publish. I don't despise lawyers but I don't have one. I'm still alive. I am not frightened of litigation.
Do you really trust the amateur judgment of a bunch of faceless people on the internet more than an actual professional?
Actually, yes, because the faceless people on here represent the collective experiences of people who have dealt with lawyers and/or who have wrestled with the same issues.
I have plenty of ethics. I do not wish to steal or plagiarise. I wish to abide by the rules but there are times when I would like to understand them better.
Asking a question about where the boundaries of such things lie does not constitute an attempt to break the rules, steal, plagiarise, or behave unethically.
Richard
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So, Richard is the spell all you need? Describe it in more detail. Could be there's a similar spell already in the OGL, say by Rite Publishing in 1001 spells or Kobold Design's Deep Magic perhaps?
Ear piercing scream maybe?
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Ear piercing scream maybe?
Thanks for the suggestion :-)
I'm ok, really - I can always find an alternative, even if I buy into the fact that that spell mechanism is somehow protected.
A similar issue must happen with patents. I have a patent, funnily enough, in my normal work, so I know about some of the hoops you have to go through with that. In particular, you can't patent anything obvious. There are certain things in our game which in my opinion are obvious and I imagine they must be the things which come under the term mechanics and therefore cannot be copyrighted.
In my next adventure I intend to use a magic item, which I have come up with myself, called a Death Ward Talisman. What is it? Well, it's a talisman that grants you the benefit of Death Ward for 7 minutes (CL 7) when you put it on. It's one use only, costs the same as a potion would cost if such a thing was possible but in order to keep the balance it actually uses up a body slot for the time that it is operational.
I have no idea if anyone has ever come up with this idea before and quite frankly I don't care. This is mechanics and, well, obvious. It would seem crazy to me if I could somehow or another publish my Talisman in my adventure, designate it as product identity and then from that point on the whole of the gaming community be precluded on pain of deepest darkest litigation from ever using it in their games.
Ghostwalk does have Death Ward Armor and guess what that does? It gives you Death Ward once per day. Wow! That's a surprise :-) It's OGL but Product Identity so does that mean Death Ward Armor is off the agenda for the rest of gaming history? I can't believe that.
I come on here to try to have an open and honest discussion about these things but just like I had 18 months ago it's like stirring up a hornet's nest.
Richard
Just as a question- not that I'm planning on self-publishing anything in the near future, but I do like to understand 'the rules' with regards to the OGL and whatnot- If Publisher A creates something OGL and declared as open content, and publisher B does the same, could publisher C then take those things- slightly altered or whole-cloth- and republish them AND declare them as IP? Are they even required to cite their sources for those elements they've used and/or 'lifted'?
No. If publisher A and B declare something open content, publishing C can print them, modify them, use them in anyway he wants, but he must put the books he took them from (and every source listed as an open game source in all of those books) and list them all in his declaration of sources used.
He is under no obligation to identify which material came from which book (and is actually restricted from doing so without other agreement in the text of his book, or from referring to pages, ect).
Essentially the more you grab from other open sources the longer the list of those in the back grow. Then if someone uses something from your book they have to list it, and all the books you listed.
Declaring IP is generally reserved for proper names, setting information, really unique monsters or races (but again, you can only really copyright/IP the name-- reference "Underdark" wizards IP versus "darklands" paizo's version and "Kenku" Wizards IP raven race and "Tengu" Paizo's version).
There is a lot of fear of the possibility of litigation but there hasn't been any appreciable action on WOTC's part. If you did cross a line, the first action would be a cease and desist letter. The OGL has really weakened the concept of copyright within D&D. At this point, avoiding the name and a rewriting the description is sufficient without worry. The most important part is really the TradeMark. "D&D, Dungeon & Dragons, Greyhawk, Forgotten Realms, Ravenloft, etc."
Here is an example of what I would think is a blatant copyright violation but WOTC pretty much hand-waved it.
In the Necromancer product, Eldritch Sorcery this product copied the name and description of spells from 1e AD&D Unearthed Arcana with little revision other adding d20 mechanics. These were spells discarded by 2e and therefore didn't make it into 3e. Why did they let it go? Probably because of the statement on the back cover "Requires the use of Dungeon and Dragons Player's Handbook, published by Wizards of the Coast" Would they be so forgiving if this book is converted to Pathfinder? Who knows? I would consider this an example of taking the OGL with regard to copyright too far.
There is a lot of fear of the possibility of litigation but there hasn't been any appreciable action on WOTC's part. If you did cross a line, the first action would be a cease and desist letter. The OGL has really weakened the concept of copyright within D&D. At this point, avoiding the name and a rewriting the description is sufficient without worry. The most important part is really the TradeMark. "D&D, Dungeon & Dragons, Greyhawk, Forgotten Realms, Ravenloft, etc."
Here is an example of what I would think is a blatant copyright violation but WOTC pretty much hand-waved it.
In the Necromancer product, Eldritch Sorcery this product copied the name and description of spells from 1e AD&D Unearthed Arcana with little revision other adding d20 mechanics. These were spells discarded by 2e and therefore didn't make it into 3e. Why did they let it go? Probably because of the statement on the back cover "Requires the use of Dungeon and Dragons Player's Handbook, published by Wizards of the Coast" Would they be so forgiving if this book is converted to Pathfinder? Who knows? I would consider this an example of taking the OGL with regard to copyright too far.
Might be-- there are definitely things that WoTC is very protective of though-- anything Forgotten Realms, any of the monsters or spells that were in the 3.5 PH or MM that are not in the SRD, anything that gets into their novel line's characters (the real profit driver for D&D). . .
I bet if someone published a character who was a reformed CG Drow name Miz't Modrane with dual scimitars and a cat companion they would be hit hard and fast.
There is a lot of fear of the possibility of litigation but there hasn't been any appreciable action on WOTC's part. If you did cross a line, the first action would be a cease and desist letter. The OGL has really weakened the concept of copyright within D&D. At this point, avoiding the name and a rewriting the description is sufficient without worry. The most important part is really the TradeMark. "D&D, Dungeon & Dragons, Greyhawk, Forgotten Realms, Ravenloft, etc."
Here is an example of what I would think is a blatant copyright violation but WOTC pretty much hand-waved it.
In the Necromancer product, Eldritch Sorcery this product copied the name and description of spells from 1e AD&D Unearthed Arcana with little revision other adding d20 mechanics. These were spells discarded by 2e and therefore didn't make it into 3e. Why did they let it go? Probably because of the statement on the back cover "Requires the use of Dungeon and Dragons Player's Handbook, published by Wizards of the Coast" Would they be so forgiving if this book is converted to Pathfinder? Who knows? I would consider this an example of taking the OGL with regard to copyright too far.
Might be-- there are definitely things that WoTC is very protective of though-- anything Forgotten Realms, any of the monsters or spells that were in the 3.5 PH or MM that are not in the SRD, anything that gets into their novel line's characters (the real profit driver for D&D). . .
I bet if someone published a character who was a reformed CG Drow name Miz't Modrane with dual scimitars and a cat companion they would be hit hard and fast.
Absolutely and totally agree. There are certain proper names that Wizards has decided are iconic to their business.
Another example of a product that comes right up to the line is OSRIC (1e retroclone). There are few spells that don't have a direct mapping in the SRD. For example, 3e uses the skill and feat system for creation of magic items but OSRIC includes the spell enchant an item. This is name and description right out of AD&D Player's Handbook.
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Boneshatter as an alternative spell?
Here is another example and how just far you can go without the dreaded cease and desist.
There is OSR game called Adventures Dark and Deep which is a "what-if" 2e if Gary remained with the game. Game is by Joseph Bloch of BRW Games, used a KS to pay for artwork, uses print on demand. Easy to change if he actually got a cease and desist letter.
In the Bestiary which is for sale on RPGNow, there is a monster called "Demoniarch" which other the name is nearly identical in mechanics and description with artwork to the 1e AD&D Monster Manual entry "Demogorgon"
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Seriously. Hire a lawyer sometime. ^_^;
I'd also suggest mixing Open Content and non-open content is tricky.
IMHO, saying something "is OGL" isn't quite sufficient if you're a publisher. Colloquially, sure, but I'd suggest publishers should be as specific as possible when they're talking about these things. Using OGL terms, if you use something from a product that is OGL, you're generally using Open Content (as distinguished from Product Identity).
Also, I'd suggest publishers distinguish copyright and trademark. They're different areas of law, the OGL deals with both, and there are different associated risks. (For a variety of reasons, risk tends to be higher with the use of trademarks.) The OGL restricts your uses of material that is trademarked in some ways- which is we used to have the d20 STL and now the Pathfinder Compatibility License. And by using the OGL, you agree to not use Product Identity without permission. Product Identity can be declared, but is also defined fairly broadly in the license itself. That's one of the reasons mixing and matching OGL material with other material gets complicated. You still have to worry about Product Identity in the sources that aren't using the OGL, because by using the OGL you're agreeing to do so.
One big, major, huge thing to keep in mind- if you get it wrong, you may not be the only person affected. You're not just risking yourself. You're potentially affecting the community- anyone who wants to use your open material in the future. So please get it right. ^_^
You normally shouldn't find works that are using the OGL in which nothing is declared open content. Making something open content is required when that material is derivative of open content, and specifically declaring that derivative material open content is a requirement of the OGL.
So even if you run into such a situation, it's quite possible that whomever published that material is doing it wrong. That will get into its own tricky legal waters, since then you potentially have a challenge in whether or not that license is valid at all.
In this case, though, Ghostwalk isn't your option b. Ghostwalk did not use the OGL. Even though any given third party publisher would need to use the OGL if it was printing such material, the book was published by Wizards of the Coast. Since Wizards of the Ghost holds the copyright for the original material, unlike any other publisher they don't need to release any of their derivative material under the OGL. As the original copyright holders they can license material however they want to. They can't close material that they've released under the OGL, but unlike other publishers they can release new material under a different (or no) license- which is what they did with Ghostwalk, the Tome of Battle, the Tome of Magic, and later books. They specifically declared that no part of the book was open content- I'm assuming just to be absolutely clear- but they didn't need to do that, and they definitely didn't use the Open Game License for the book. (At least, not my copy.)
Carlos, you made excellent points.
However, my question, is the following: What changes are required to break Product Identity?
I would say the changing the name and not copying the description verbatim is sufficient except in cases that WOTC is willing to defend further that are directly related to trademark and iconic IP i.e no scimitar-welding drow with a large black cat.
Here is another example from OSRIC: As all of your know, "carrion crawler' is closed content; however WOTC has shown that the name is really the only part they are willing to defend. It is perfectly legal to have subterranean worm-like creature with eight 2ft long tentacles that paralyze their prey. The OSRIC entry is identical in mechanics to 1e AD&D Monster Manual entry. The differences in description are only very slight; in MM, "a cross between a giant green cutworm and a huge cephalopod" and in OSRIC, "the magical hybrid of a cutworm and a squid".
Finally, the name change in OSRIC using the same initials is "carcass creeper".
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Zarathos: your point is very good, IMO, and gets to the root of my original question.
I would say that additionally you can't read through the product identity section of every OGL book ever published, even if you could find them all.
So presumably if you don't quote an OGL source in your own product then normal copyright rules apply?
In the case of Ghostwalk, though, Carlos is right - it's no more OGL than 1st ed.
I've always imagined that our current copyright laws have come about after years and years of legal wrangles between people either plagiarising each other or trying to copyright "once upon a time". I imagine that the current set of laws has found the right balance between protecting people's creativity without stifling creativity in others. Go too far either way and you basically kill creative writing.
I'm never been terribly sure of this but I certainly hope that the OGL continued in this direction without reversing any of the hard-fought rules which our current copyright laws have.
Richard
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The OGL has made copyright issues for the D&D game murky.
I believe the original intent of copyright was the following:
As an author, you can write a novel about vampires. However, you can't take the existing work "Salem's Lot" by Stephen King and change the title, rename the characters, and rearrange the temporal order keeping most of existing syntax and story and call it your own.
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The easiest way to think about it, for me, is to imagine that the OGL has nothing to do with rules. The OGL is a license that lets you use various snippets of copyrighted text. Even though the OGL does deal with trademarks, it does so mostly by exclusion; nothing trademarked or trademarkable is OGC and therefore cannot be dispensed under the OGL, only another license.
The OGL is a license and therefore binding; if you start playing fast and loose, you lose a lot of what the OGL is supposed to give you in the first place.
Since Ghostwalk is not open content, this is not directly relevant, but it's worth nothing from time to time that spell names are one of the things that are considered, by default, Product Identity. Now, a lot of spell names aren't really unique ideas in the first place, and it's doubtful you could copyright or trademark most spell names, but directly copying another spell's name and effect is really pushing it, also, as mentioned above, kind of rude.
In the Necromancer product, Eldritch Sorcery this product copied the name and description of spells from 1e AD&D Unearthed Arcana with little revision other adding d20 mechanics. These were spells discarded by 2e and therefore didn't make it into 3e. Why did they let it go? Probably because of the statement on the back cover "Requires the use of Dungeon and Dragons Player's Handbook, published by Wizards of the Coast" Would they be so forgiving if this book is converted to Pathfinder? Who knows? I would consider this an example of taking the OGL with regard to copyright too far.
I don't know that book, but I'd check if it was released under the d20 license (which, as i understand things, was separate and additional to the OGL) before drawing any conclusions as to precedent. It's possible that you were allowed more "access" if you operated under the additional license.
In the Necromancer product, Eldritch Sorcery this product copied the name and description of spells from 1e AD&D Unearthed Arcana with little revision other adding d20 mechanics. These were spells discarded by 2e and therefore didn't make it into 3e. Why did they let it go? Probably because of the statement on the back cover "Requires the use of Dungeon and Dragons Player's Handbook, published by Wizards of the Coast" Would they be so forgiving if this book is converted to Pathfinder? Who knows? I would consider this an example of taking the OGL with regard to copyright too far.I don't know that book, but I'd check if it was released under the d20 license (which, as i understand things, was separate and additional to the OGL) before drawing any conclusions as to precedent. It's possible that you were allowed more "access" if you operated under the additional license.
Yeah, I guess it is possible that WOTC allowed greater access in similar fashion like it did with Tome of Horrors monsters.
Yes, you are correct there is a d20 System logo. The following is in the Legal Appendix
This printing of Eldritch Sorcery is done under version 1.0a of the of the Open Game License, below, and version 6.0 of the d20 System Trademark License and version 5.0 of the d20 System Trademark Logo Guide.
However, the only thing under Product Identify relates to Necromancer Games only. I don't see how the d20 trademark and logo relate to those spells. They are included without differentiation along with the others.
All I meant is that, without knowing what "version 6.0 of the d20 System Trademark License" says you don't know if those spells are allowable under the OGL or allowable by virtue of the more restrictive license.
I'm very much in the "ask a lawyer" camp (faceless or otherwise), but for anyone trying to invent their own legal advice and concoct their own argument from precedent, I think it's important to understand that using the PGL doesn't mean you don't also have permission to go further.
I agree, Steve. So, I looked up the d20 System Trademark License and their is nothing in there that gives special permission. The text for version 6 is easily found with Google.
It appears very fishy that WOTC just didn't enforce their own Product Identity in this instance.
I would think like the case of ToH monsters where it was required to give a line item for each monster in the legal appendix that we would see something similar.
Under the FAQ for the Open Game License, it also states that Product Identify must be clearly identified. I don't see how as written in the legal appendix that not all spells including the ones in question are not considered open content.
Also in FAQ, I read the following: "Product Identity is material, otherwise clearly identified as Open Game Content, that is excluded from the License terms that apply to Open Game Content. Product Identity usually includes trademarks and other Intellectual Property (characters, settings, etc.)"
The above may answer the question. There may simply be some cases where if there isn't a significant trademark or important iconic IP that Wizards just won't defend it as Product Identity. I guess old defunct spells from Unearthed Arcana may well fit in this category.
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What about faceless professionals such as myself? :)
There are, of course, exceptions. But, no offense intended, I'd want more than simply the word of a bag with teeth that he was a lawyer before I trusted him with legal matters. Especially when he's a bag with teeth for whom the relevant legal document was not in his native language.
However, if I ever find myself in need of a lawyer while in Poland, I'll be on the lookout for hungry bags.
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There is a lot of fear of the possibility of litigation but there hasn't been any appreciable action on WOTC's part.Tell that to Fast Forward Entertainment.
Oh, wait, you can't, they don't exist any more.
Hmm, had to look this up.
Apparently in their product, they referenced Gruumsh, Pelor, Merrshaulk and Hieroneous, Lolth, and Drawmij. Referencing proper names part of D&D IP is a big no-no.
That me restate the quoted part above:
"There is a lot of fear of the possibility of litigation but there hasn't been any appreciable action on WOTC's part that doesn't include a significant trademark or important iconic IP."
Another factor to take into account in these things:
If you're small enough to go under the radar, you may get away with things you're not supposed to be able to get away with.
However, this is absolutely not a recommendation to do that, it's exactly the opposite. It means you may see that a tiny 3PP has done something with the OGL and assume that therefore it's okay to do the same, when in reality it could just be that the IP owner being infringed upon simply hasn't noticed, or cared enough to do anything about it.
Before using the "well, I checked and such-and-such seems to have gotten away with it, so I guess I'm okay" argument, ensure that such-and-such is a large company with their own premises, a good few permanent employees, a swathe of releases under their belt, and manages to keep a few hardbacks in print without the use of kickstarter. Anyone else is probably not the best choice to use as an example of precedent.
That's in no way knocking the 99% of publishers that don't fit into the above requirement, I'm just saying that in the grand scheme of things they're likely not big enough for the likes of WotC to have picked up a copy of their work and checked it for infringement. Bear in mind that's no kind of protection at all, as it only takes one random mention of a possible infringement on a message board to get picked up by a mod and passed up the chain.
The other category that's likely to get away with something it shouldn't are works given away for free. If nobody is making money off it, chances are a blind eye may possibly get turned somewhere (either out of benevolence or simply because people tend to think twice before suing someone that hasn't made any money to pay them with). Again, don't use these (even if they're OGL licenced) as examples of what you can and can't do with the OGL.
What about faceless professionals such as myself? :)There are, of course, exceptions. But, no offense intended, I'd want more than simply the word of a bag with teeth that he was a lawyer before I trusted him with legal matters. Especially when he's a bag with teeth for whom the relevant legal document was not in his native language.
However, if I ever find myself in need of a lawyer while in Poland, I'll be on the lookout for hungry bags.
Hmm. He does have a *lot* of teeth, and they seem quite pointy.
Looks like good lawyer material to me ;)
Another factor to take into account in these things:
If you're small enough to go under the radar, you may get away with things you're not supposed to be able to get away with.
However, this is absolutely not a recommendation to do that, it's exactly the opposite. It means you may see that a tiny 3PP has done something with the OGL and assume that therefore it's okay to do the same, when in reality it could just be that the IP owner being infringed upon simply hasn't noticed, or cared enough to do anything about it.
Before using the "well, I checked and such-and-such seems to have gotten away with it, so I guess I'm okay" argument, ensure that such-and-such is a large company with their own premises, a good few permanent employees, a swathe of releases under their belt, and manages to keep a few hardbacks in print without the use of kickstarter. Anyone else is probably not the best choice to use as an example of precedent.
That's in no way knocking the 99% of publishers that don't fit into the above requirement, I'm just saying that in the grand scheme of things they're likely not big enough for the likes of WotC to have picked up a copy of their work and checked it for infringement. Bear in mind that's no kind of protection at all, as it only takes one random mention of a possible infringement on a message board to get picked up by a mod and passed up the chain.
Its really hard to get a feel for just how large companies are . .. but I am pretty sure Necromancer games was fairly large, right?
You do add a layer of protection for yourself if you are using something that was designated as open content by another company in a published source and was not pursued-- i.e. if I used the spells in the before referenced necromancer games product (listing that product in my references list as appropriate/required correctly) then in any legal battle that attacks said content you have the defense that it had been published for X years and was not attacked as infringement.
Its really hard to get a feel for just how large companies are . .. but I am pretty sure Necromancer games was fairly large, right?
Necromancer, I'd probably say yes. However, with Necromancer you've got a whole different problem - some of their work was produced under direct license from WotC and other publishers and thus sometimes contained references not covered under the OGL. In some cases this OGLed material not previously OGL (Tome of Horrors), and in others it just allowed them to use existing material from other publishers without directly OGL-ing it.
Anything published by Necromancer thus tends to be complicated to dissect for the purpose of determining what is and isn't allowed under the OGL :)
End of the day, what's allowed by the OGL is best determined by having a legal professional go over the OGL itself, and not by looking at what others have done with it. It can help form guidelines, but it's best then to take those guidelines to a legal professional and say "After examining the relevant text, I believe I can do this, is this okay?"
Advice from the forums is probably in the same category. Use it as a shortcut to cut down on legal contact time. Rather than employing a lawyer for hours to find out what you can and can't do under the OGL, make a shortlist from forum comments and examples from other publishers, and present it to a lawyer for confirmation. If said lawyer already has OGL experience (and this is another thing that can drastically reduce legal fees), they should be able to give that confirmation in a fraction of the time if you've done much of the groundwork for them.
Agree and think that is exactly what is happening. Products are either free or too small to be considered. My examples are stuff that shouldn't be happening but are because WOTC can be bothered. I think they are copyright violations but it is up to WOTC to try enforce it.
I guess I saying that taking an obscure spell from a now obscure product then renaming it and rewriting the description from the building blocks of open content is very unlikely to be a problem. Although you used the obscure product for inspiration, it is possible using SRD elements that you could have created it independently. Not likely, but possible.
Yeah, I don't like to use too many things outside the PRD in the stuff I'm working on for possible publication anyways, as the whole point for me is to get my ideas out there, but yeah there are other companies from the early days of d20 that had their own individual licenses too that are just not covered by OGL
Some of the early companies were also kind of stingy on designating open content, or really vague in what is/is not-- like Mongoose publishing. I have a few of their splats and I could not begin to decipher what is OGL and isn't.
Paizo and most of the companies publishing recently seem to have been very generous, and very specific in reference to designating mostly everything game rules related OGC though.
I guess I saying that taking an obscure spell from a now obscure product then renaming it and rewriting the description from the building blocks of open content is very unlikely to be a problem. Although you used the obscure product for inspiration, it is possible using SRD elements that you could have created it independently. Not likely, but possible.
I'd concur with that :) If there's literally no direct textual correlation between the two, it's hard to make any copyright claim whatsoever. To protect the underlying ideas, they'd need to have a patent on them.
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Just going from the specific to the general, and at the risk of derailing this thread completely, but it is important, do you think therefore that we live in a plutocracy, and that the principal means by which we are controlled by the wealthy is through fear of litigation?
Richard
I would call it an "oligarchy", but yes.