Part 2: Copyrightability of #RPG Abilities and Spells #DnD #copyright #iplaw

In case it isn’t clear, WotC does not endorse this post or any work I’ve created. My use of their trademarks is purely to identify the subject of this discussion and should not be taken as an endorsement of my work by WotC. To the extent that there has been any technical infringement of a WotC copyright by this post, such use constitutes commentary on a de minimus amount of their copyrights and is therefore a fair use of those copyrights.

Also note that this post does not constitute legal advice. This addresses WotC’s copyright misuse; it doesn’t, and in fact can’t, address whether any actions of the reader themselves constitute copyright infringement. If the courts find copyright misuse, then the copyrights will be deemed unenforceable retroactively to the point in time when the misuse began (likely 2005 or earlier). If the courts don’t find copyright misuse, then past infringement is still subject to a lawsuit, and this post doesn’t address anyone’s behavior other than my own. Your case rests on your facts. If there’s any concern that you’ve infringed WotC’s copyrights, you’ll need to retain an attorney.

Outline

Writing these posts has been quite a challenge. They required a lot of work that had to be done during free time, which is usually in short supply, and these posts are directed at two very different audiences who need to hear different things and essentially speak different languages. Moreover, new material has been added frequently based not only on new ideas of my own, but also on feedback from Part 1, and some of this material hasn’t been proofread or reviewed by peers. Lastly, it’s clear that I’m not the best writer for this kind of task (or even close to it). The net result is a very long and disjointed essay that can be confusing at times and may even contain inadvertent overstatements of my argument. With the little amount of time available for rewrites, this post will never truly be ready for publication, but I insist on keeping my timeline. With all that in mind, the next paragraph serves as an outline of my primary assertions. Please keep these assertions in mind while reading through this post and remember that this is a living conversation that should continue beyond these three posts. If you feel I have misrepresented anything, please feel free to challenge me.

The threshold question in this post is whether an ability or spell description is copyrightable. They are, but only those parts that are artistic in nature. If the artistic content is removed, what remains will be statements so simple and so inherently tied to mechanics, that they cannot possibly be copyrightable. The next question is whether the combination of abilities and spells causes an otherwise mundane character to become original in the copyright sense. Again, the answer is no because very few (if any) of the combinations have never appeared before, but even if a particular combination is truly original, it is so inherently tied to mechanics that extending copyright protection to the combination would inappropriately remove game mechanics from the public domain. This is true even if finding an example of such a precise combination anywhere in history is elusive. The very concepts of magic and monsters include within them that any creature monstrous or otherwise can have any magic applied to it or can cast any magic themselves. There is simply nothing original about a particular creature having a particular array of spells and abilities at their disposal, and district courts have been consistent in upholding this interpretation of copyright law across the board, card, and video game markets. Finally, even if there exists a stat block that satisfies all of these requirements (avoids fantasy elements, creates an original and unexpected combination of spells, and rises to the necessary level of creativity), the fact that WotC specifically directs players to reproduce these stat blocks by creating monstrous player characters forbids WotC from enforcing any theoretical copyright they could possibly have.

This is the longest of the three posts. All these assertions require arguments, and that’s a lot to unpack. Let’s begin.

Much like stat blocks, spell descriptions often aren’t copyrightable, but in all cases certainly have elements within them that aren’t copyrightable. That is, when deciding to republish a spell, it’s not a question of whether you can, but rather a question of how much. Reading the prior post on stat blocks is likely required to understand some of the legal ideas expressed in this post, but one clarification and two relevant legal standards need to be discussed in detail: Creative v. Clever, Substantial Similarity, and Trade Secrets.

Creative vs. Clever

“Creative” is a legal term of art roughly synonymous with “original.” To a layman, creative takes on a broader meaning, including the notion of being “clever.” I thought it was clear from the prior post that the legal standard is being addressed in these posts, but some game designers may have inadvertently been offended. Saying that Shadow of the Demon Lord’s initiative system wasn’t creative doesn’t mean the author wasn’t clever. It doesn’t address the author at all, but rather the nature of the work. If deemed novel, nonobvious, and useful, that initiative system could be entitled to a patent on the basis of it being “innovative,” but legally speaking it’s not “creative.” It would certainly fail the obviousness test of patentability, but the point is that designing that system has value, and by extension so does the author. The fact that it isn’t legally “creative” doesn’t suggest otherwise. Legally speaking, a novel that’s dull, predictable, and rife with spelling errors is still creative, but inventing a time machine isn’t creative in the least. Clearly, there’s no reason to take offense by being told you aren’t creative. It’s very important that I make clear that I mean no insult against game designers, especially considering that they’re not going to be happy with a couple of sections of this post.

Substantial Similarity

To prove that a copyrighted work was copied, a game designer can cite either direct or indirect evidence. Direct evidence rarely exists, but would be, for example, video footage of someone infringing. Indirect evidence requires a showing 1) that the alleged infringer had access to the work; and 2) that the copy is substantially similar to the copyrighted work. It doesn’t have to be an exact copy.

Recall from the prior post that choice is key. Copyright is about choosing one thing over many other available options. An author can’t copyright a work if it will remove the ability to express that idea from the native language. The only way to ensure a suitable number of options is to allow copyrights only on sufficiently complex text. Now consider how substantial similarity affects this analysis. Let’s say an author writes the sentence, “the grass is long and green.” The idea of grass being long and green isn’t owned by anyone, but rather how the author chose to express that idea. Therefore, if another person wanted to express that idea, they’d have to use a different combination of words. How about, “long and green the grass is”? Would that suffice? Probably not because, even though the words have been rearranged, that sentence is substantially similar. What about “lengthy and green the grass is”? Again, no and for the same reason. Reordering or replacing (with a synonym) a few words doesn’t look much different than the original. For statements as simple as these, it’s impossible to avoid substantial similarity while properly expressing the idea, so those sentences cannot be copyrighted by themselves.

Accordingly, when determining whether a creative work can be copyrighted, not only must there exist an alternative way to express the concept, but also an alternative that is not substantially similar to the work. If the only expressions of an idea are all substantially similar to one another, then none of those expressions can be copyrightable. Any other interpretation of copyright law would render it impossible for any but the copyright holder to express the idea that the grass is long and green, removing all means of expressing that idea from the native language. To prevent this absurd result, copyrightability won’t exist until the expression reaches a certain level of complexity, which probably means at least a paragraph of text. Other than “one or two words can’t be copyrighted,” there’s no clear rule. Courts decide this on a case-by-case basis.

Trade Secrets

An often-forgotten form of intellectual property, trade secrets are creatures of state law. As such, they’re defined by state statutes, which means they can vary in definition depending on which state’s law applies. However, the definitions are usually quite similar. A great example of a trade secret is the formula for Coca-Cola. It can’t be copyrighted or trademarked, and even if patentable, a patent would expose that formula to the public such that, after the patent expired, everyone would be able to make soda with the same flavoring, thus destroying the Coca-Cola Company’s market power. The formula became a trade secret through the use of non-disclosure agreements, and as long as it’s hidden from the public, it will remain a trade secret.

Example Spells

Each spell in the WotC library represents a fantasy element (defined here as characters, creatures, stories, settings, themes, or traits that appear in cinema, folklore, legend, literature, or mythology). None are original works. Moreover, their expression is usually simple, and even when it isn’t, impossible to rephrase in a dissimilar way without changing their meaning and application to the game rules. For those reasons, most parts of the spell description cannot be copyrighted.

Consider the Fly spell. In 5th edition D&D, it’s expressed as follows (with some minor redactions to avoid any distractions from the point):

Fly
3rd-level Transmutation
Casting Time: 1 action
Range: Touch
Components: V, S, M ([description of material components redacted])
Duration: Concentration, up to 10 minutes

[Flavorful description redacted]. The target gains a flying speed of 60 feet for the duration. When the spell ends, the target falls if it is still aloft, unless it can stop the fall. At higher levels. When you cast this spell using a spell slot of 4th level or higher, you can target one additional creature for each slot level above 3rd.

Magical flying is a common theme in fantasy literature and mythology, literally millennia old, and expressing that concept is simple and straightforward. This carries certain consequences. Because no game designer can prevent another from creating a magical spell that allows a character to fly with the assistance of magic (i.e., you can’t copyright an idea), and because of the directness and simplicity of the expression, it’s impossible to express this theme within the mechanics of 5th edition without either directly copying WotC’s text or producing text that is “substantially similar” to it. With no textual options available, a magical flying spell for use in 5th edition D&D could never be expressed by anyone other than WotC if such text were deemed copyrightable. That would essentially extend the copyright to protect a fantasy element and game mechanics, neither of which is permitted by copyright law. Any attempt to restrict the expression of the Fly spell’s mechanics based on WotC’s legitimate copyrights would therefore constitute copyright misuse.

Some of the flavorful text was redacted, but some remained that might seem flavorful. Specifically, “When the spell ends, the target falls if it is still aloft, unless it can stop the fall,” isn’t redacted. WotC had to make this part of their mechanics because it creates a risk that’s balanced for a 3rd-level spell (i.e., it includes the risk of running out of time while in mid-air). If this statement were redacted, the Fly spell would be (however slightly) too powerful for a 3rd-level spell, which means the redacted spell block wouldn’t be a proper statement within the rules of 5th edition D&D. In the one-stop stat blocks, more concise language was used (“When the spell ends, the target falls if it’s still airborne.”), but that’s probably substantially similar to WotC’s text. In fact, there’s literally no way to express this idea within the game’s mechanics in a clearly dissimilar form of expression, so allowing a copyright in that text would prevent expression of that theme using the game’s mechanics. Even if deemed sufficiently creative for copyright, the author’s interest in their copyright would have to give way to the public’s interest to express that idea. Similarly, the modifications made to the spell when casting at a higher level are mechanically necessary to keep the game balanced, and any other way of expressing it would probably be substantially similar. WotC’s placement of conditions on the expression of this public domain material represents copyright misuse.

Of course, WotC “permits” you to publish Fly under the Open Gaming License. What about a spell that WotC forbids others from republishing under any circumstances? Branding Smite is such a spell, so if WotC has no right to place any conditions on its use, this represents an even stronger case for copyright misuse. Branding Smite is a spell associated with paladins, who are modeled after holy warriors like Fierabras. Accordingly, the spell reflects the type of ability a paladin (among others) would have. The question is whether the specific expression is protected. For reasons similar to the Fly spell, everything that hasn’t been redacted is a mechanical expression of a fantasy element. Here it is:

Branding Smite
2nd-level Evocation
Casting time: 1 Bonus Action
Range: Self
Components: V
Duration: Concentration, up to 1 minute

The next time you hit a creature with a weapon attack before this spell ends, [redacted] [t]he attack deals an extra 2d6 radiant damage to the target, which becomes visible if invisible, and the target sheds dim light in a 5’ radius and can’t become invisible until the spell ends. At Higher Levels. When you cast this spell using a spell slot of 3rd level or higher, the extra damage increases by 1d6 for each slot level above 2nd.

There’s no need to repeat the arguments above as they apply here. There are simply two points to make. First, WotC forbids re-publication of that spell (despite the minor redaction) under any circumstances. Second, WotC has no right to forbid its reproduction unless this text can be reworded in a way that isn’t substantially similar, yet still accurately expresses this fantasy theme within the context of 5th edition Dungeons and Dragons. With a description as simple and direct as what appears above, that should be impossible, but please give it a try and post me your results in the comments. For the record, this is the text from the one-stop stat block project, which was apparently deemed objectionable:

The first time the blackguard hits with a weapon attack, the attack does an extra 2d6 damage to the target, which becomes visible if invisible, and the target sheds dim light in a 5’ radius and can’t become invisible until the spell ends.

What about a spell that’s much more complex? Does the same argument hold up? Control Weather appears on page 228 of the Player’s Handbook. Even with redactions, it’s too long to reproduce here. Instead, this is the text from the one-stop stat block project from Volo’s Guide to Monsters:

Control Weather (8th). Ten minutes to cast, self (5-mile radius), concentration up to 8 hours. The ki-rin must have a clear path to the sky. The ki-rin can change precipitation, temperature, and wind every 1d4x10 minutes, moving one of those characteristics up or down on the following table:

Stage Precipitation Temperature Wind
1 Clear Blazing Heat Calm
2 Light Clouds Hot Moderate wind
3 Overcast or fog Warm Strong wind
4 Rain, hail, or snow Cool Gale
5 Torrential rain, driving hail, or blizzard Cold Storm
6 Arctic cold

Even a spell as complex as Control Weather can be expressed rather simply for a DM who isn’t looking to “power game” past the rules. Is this version substantially similar? If so, does it go beyond game mechanics or the mythological theme of weather control as practiced in ancient Greece or India, or tribal North America or Scandinavia? If so, how can it be reworded to avoid these issues?

Of course, none of these arguments apply to spell effects that are truly the original creation of WotC, but there don’t appear to be any such spells. People have been creatively imagining spells for millennia. There are few new ideas under the sun, and if WotC is misusing their copyright, a small number of exceptions will not mitigate their copyright misuse with respect to the vast majority of their spells.

The First Catch-22

Simple things can’t be copyrighted because they lack the minimum level of creativity necessary to qualify for a copyright, but a good argument can be made on the other end of the spectrum. Role-playing game (“RPG”) mechanics are so complex and interdependent that even small changes to the text can completely change the meaning of the rule, so in some cases the copying of those rules should be permitted as a fair use.

“Power gamers” are known for taking advantage of even the smallest ambiguity in the text of game rules. The one-stop stat blocks are rife with such ambiguities arising from very subtle differences. Thus, the one-stop stat blocks serve as evidence that the rules are very sensitive to changes. Complex RPG mechanics should be much harder to protect via copyright because they quite often can’t be expressed without either direct copying, substantial similarity, or a loss of game rule integrity. That is, if even a single word is changed to accommodate the copyright, the resulting text no longer represents the game. Denying republication of that rule would therefore be extending copyright protection to the game mechanic. This isn’t true of all RPG rules, and it isn’t to say that they aren’t eligible for copyright protection, but rather that a fair use defense should very often be available to third party publishers of RPGs.

The ambiguity wasn’t a concern for the one-stop stat blocks because they’re a DM’s tool, and DMs have little to no motivation to “power-game.” If they need more challenging encounters, they simply use tougher monsters. Moreover, most DMs have access to the sourcebooks from which the one-stop stat blocks are drawn. Ultimately, the sourcebooks can serve as a check against the stat blocks during the planning of a gaming session, with the one-stop stat blocks being useful while running the game. However, other projects may require direct copying or substantial similarity in order to properly express the game rules, and courts need to be shown why this is necessary. Regardless, it seems ridiculous that the one-stop stat block project was found offensive considering its significant differences and the additional value it added.

Please note that the notion that RPG rules are in some sense too complex to avoid fair use is a novel one. No court has ruled this way, but no court has dealt with rules nearly so complex. Board and card games rarely even compare in complexity to RPGs.

The Second Catch-22

If no creative text appears in a stat block, then all that remains is either public domain material or the uncopyrightable game mechanic. In such a case, the stat block is clearly not copyrightable. However, if arguably copyrightable text is included in the stat block, not as descriptive text, but rather as part of an ability, action, or spell description, then that text can become so intertwined with game mechanics that they can’t be separated. Under Assessment Technologies, public policy requires that the public be free to reproduce those creative elements in order to reproduce the mechanics, even if they rise to the level of copyrightability. Attempting to block that reproduction is copyright misuse. When in conflict, the public interest always wins out over the copyright holder’s interest.

Spell Names

Consider the spell Evard’s Black Tentacles. WotC forbids use of “Evard” when republishing that spell, but they can’t copyright a single word, so their demand isn’t supported by copyright law. What they can forbid is use of the character concept of Evard, because as a character he is copyrightable. When writing out the spell description for that spell (or Melf’s Acid Arrow, Otto’s Irresistible Dance, Tasha’s Hideous Laughter, etc.), the issue is whether the use of that name tells the reader anything about Evard other than his name. It implies he’s a wizard that invented the spell, so the only information imparted is that there’s a (probably) wizard named Evard, but perhaps another wizard named the spell after Evard. Neither scenario is creative enough on its own to warrant copyright protection, so using the name by itself can’t be infringement. Let’s say the spell description goes into details such as, “Evard created this spell in his laboratory in the year 427 with the help of his father and mother, Fred and Ethel Mertz, who always felt sorry for him because his right leg was shorter than his left leg….” Assuming all of that is the true backstory for Evard (it isn’t), now there’s a risk of infringement of the character concept that WotC owns. None of WotC’s spell descriptions generate such risk, but even if they did, simply redacting that creative part would remove any concern for copyright infringement. When WotC demanded the take-down of the one-stop stat blocks (or any “non-OGL” project), they yet again were claiming that their copyright extended to a single word. When demanding that any future stat blocks be published with the OGL, they were trying to contract away use of a single word by leveraging their copyrights through emails (and cease and desist letters in other instances).

Ability and Spell Independence

Much like with stat blocks in general, spell descriptions aren’t usually mutually dependent on one another except to the extent where they interact mechanically to describe a fantasy element (e.g., Remove Curse counters the effects of Bestow Curse, both of which are ancient fantasy elements). Therefore, they don’t come together to tell a story (or at least not an original one), so each ability and spell are instead addressed individually to see if they’re individually copyrightable. If they’re not, then just like data in a spreadsheet or phone numbers in a phone book, their collection is also uncopyrightable.

Some spells do interact, but their interaction is dictated by uncopyrightable game mechanics, not inspired by creativity. The Shield spell specifically states that it makes the caster immune to Magic Missile. While both represent fantasy elements, this particular interaction doesn’t appear to be a part of those elements. However, again there’s a major mechanical consideration in play. Magic Missile is one of the few attacks in the game system that doesn’t require an attack roll or saving throw, and most of the others at least require an initial attack before gaining the ability to do damage in subsequent rounds without additional attack rolls. As Shield is a second level spell designed to nullify attacks by imposing a significant penalty to attack rolls, and Magic Missile doesn’t make use of an attack roll, as a matter of mechanics it’s important to provide a specific exception for Magic Missile.

For all the cases of interdependence between spells in 5th edition, that interdependence is itself either 1) a fantasy element; and/or 2) necessarily exists for purely mechanical reasons.

A Return to Stat Blocks: Do They Tell a Story?

There doesn’t appear to be a single spell on the spell list that hasn’t been seen before, and in most cases, the way WotC describes that spell within the context of the game rules (and perhaps substantially similar variations of it) is the only way to do so. There’s still the open question of whether spell descriptions contained within a stat block collectively tell a story. For example, does a selection of spells for Spellcasting and Innate Spellcasting collectively describe the backstory, culture, ecology, history, or personality of either a specific creature or its species in general? If so, does that combination differ significantly from its prior treatment in fantasy such that it rises to a level of originality and creativity necessary for copyright protection?

Math

An analysis of spell use makes it clear that the spell selections are made for mechanical, not creative, reasons. Specific spells are chosen because of game balance, not because they’re providing the creature’s backstory, biology, culture, ecology, history, or personality (henceforth, its “nature”). In most cases, they’re silent on such creative concerns. Moreover, granting these particular combinations of spells to any given creature isn’t something that hasn’t been done or suggested countless times throughout fantasy. Thus, the combination of spells isn’t copyrightable.

Spellcasting

There are 361 spells listed in the Player’s Handbook, 43 spells in the Elemental Evil Player’s Guide, and 1 in the Guildmasters’ Guide to Ravnica, bringing the total number of spells in those sources to 405. There are 113 distinct monsters in the Monster Manual, Volo’s Guide to Monsters, Tales of the Yawning Portal, Mordenkainen’s Tome of Foes, the Guildmasters’ Guide to Ravnica, and the Ghosts of Saltmarsh (the “Sourcebooks”) combined that have the Spellcasting trait. Thus, it’s possible to give each of these monsters a nearly unique set of spells, which could in turn be deemed creative choices that differentiate one species from the other. There would still be overlap between the spell selections, but nevertheless a clear difference in how these monsters were built. However, this is not the case.

To start, there are 140 spells (34.6%) that aren’t used at all. All gamers know why: Some spells are worthless when given to a monster whose role in the game is different from that of a player’s character. Analogous to that is that, as any player can attest, some spells are must-haves because of how they play in combat. Among them are Fireball, Lightning Bolt, Hold Person, and Counterspell. The decision to include them is mechanical, and it’s clear that WotC had the same consideration when creating their stat blocks, which are constructed to provide a mechanical challenge for the players’ characters. Except for Magic Missile, many of the spells chosen match the ones players prefer for combat. Magic Missile is probably not as common among monsters because it doesn’t require an attack roll, and from a mechanical perspective, that could make the monsters too powerful (or at least too “swingy”). The point is that its absence is also a decision dictated by game mechanics, not creativity.

Within the Sourcebooks, there are 1,392 uses of spells through the trait of Spellcasting. Of the 65.4% of spells that are used, even among that set, 73 of them are used only once, 78 are used only twice, 96 are used only thrice, and so on. On the other side of the spectrum, 622 (44.7%) of those instances are represented by only 37 (9.1%) spells, and the spell selection for some of these monsters falls entirely within those 37 spells. That’s because the selection of these spells have nothing to do with creativity or flavor, and everything to do with game mechanics. For mechanical reasons, WotC had very few choices they could make, and they leave third-party publishers with even fewer choices to make. That makes the spell selection process functional, not creative, and thus outside the scope of copyright protection.

Innate Spellcasting

Innate Spellcasting plays out the same way. Within the Sourcebooks, there are 905 instances of Innate Spellcasting (eliminating duplicate stat blocks from Volo’s, Tales, and Saltmarsh). Of the 405 spells available, 206 (50.9%) aren’t used at all, 61 are used only once, 88 are used only twice, 72 are used thrice, and so on. On the other end of the spectrum, 449 (49.6%) of those instances are represented by only 26 (6.4%) spells. As with Spellcasting, there are very few spells used to “tell the story” of these monsters.

WotC appears to believe that monsters with no apparent connection to one another, and with entirely different natures, can have those stories expressed in the same exact way by the same list of spells. In fact, however, not only do these spells not describe those cultures or ecologies, but they aren’t even meant to do so. These spells were clearly chosen because of their mechanical effect on the game, which is why there’s such a large degree of similarity between otherwise very different species.

Comparing the Two Lists

When comparing spell use with Spellcasting versus spell use with Innate Spellcasting, there’s a difference between which spells are chosen. When looking at the spells in each list that have greater than 10 uses in the stat blocks (23 for Innate Spellcasting and 37 for Spellcasting), the list shares only 6 spells in common. Comparing the lists for 9 or more uses yields only 11 spells in common. This suggests that there’s a reason why a spell is favored for Spellcasting but not for Innate Spellcasting (and vice versa), but it would be preposterous to think that reason is flavorful and thus creative. It would still require that such flavor spans multiple monsters despite those monsters being completely different in nature. We’re not privy to the thoughts of the designers, but the obvious patterns tell us that those thoughts are concerned with mechanics when selecting spells.

On the other hand, the list of spells that are used 5 times or fewer for both Spellcasting and Innate Spellcasting share a lot more spells between them. There are 408 spells used 5 times or less for Spellcasting, and 338 spells used 5 times or less for Innate Spellcasting. Those lists share 176 spells in common, which means that among all the spells used 5 times or fewer with Innate Spellcasting, 52.1% of them are also used 5 times or less with Spellcasting. The number of spells in common that are deemed largely useless for monsters have over a 50% overlap between the two sets.

Spells by Level

The mathematical analysis so far doesn’t tell the entire story. Fireball may not look popular, but it looks a bit more popular when considering that casters beneath 5th level don’t have it as an option. When considering only the 56 3rd-level spells, Fireball is the third most popular among those used for Spellcasting, being used to fill 15 (7.8%) of the 192 3rd-level slots. In fact, there’s a crowd at the top, where 6 spells (10.7%) account for 91 (47.4%) of those slots, and with 19 spells (33.9%) never being used. These numbers are similar to those that appear when looking at all spells.

Obviously, the higher the spell level, the less opportunity there is for this effect to appear; there are fewer slots to fill. Nevertheless, at 8th level, the pattern remains for Innate Spellcasting, and it’s dramatic. Of the 28 instances of 8th-level spells appearing as Innate Spellcasting in the Sourcebooks, only 5 of 19 (26.3%) spells are used, but two of them only once. That means that 3 spells (15.8%) account for 26 (92.8%) of the 8th-level slots. The overwhelming majority of creatures capable of casting 8th level spells can use Dominate Monster, Feeblemind, and Control Weather. It would make thematic sense to replace Control Weather with Incendiary Cloud or Tsunami, or maybe even Sunburst, but WotC didn’t bother to do that even once. The power level of those other spells were probably inappropriate for combat against player characters, which would upset the mechanical balance of the game.

These spells are clearly being chosen out of necessity for the mechanical challenge they create, not to describe a monster’s nature. To the extent that they do describe its nature, they unoriginally describe the creatures in question (e.g., angels, demons, devils, giants, hags) as they appear in fantasy, and the few remaining spells are just copying those stock abilities of the former group as they appear in fantasy.

Some examples will be helpful. The following examples show that almost every element of every stat block is functional by nature, not creative; that the very few creative elements within a stat block are minimal and inseparable from the functional aspects, and thus not protectable; and that other seemingly creative elements are in fact not creative, but rather are copies of expressions from fantasy elements squarely within the public domain.

Example #1: The Slaadi and the Second Catch-22

WotC claims ownership of the slaadi. The fact that they forbid even the mention of a slaad isn’t supported by law, but they may own the concept of the slaadi when combining their biology, culture, ecology, and history. (Backstory and personality are largely irrelevant for a stat block describing the species rather than a specific individual.) To be brief, slaadi are anthropomorphic frogs from the plane of Limbo, whose personalities are so chaotic that a real-world human would characterize them as insane. They reproduce in a manner similar to another WotC-forbidden monster, the mind flayer (despite completely different origins) in which they implant eggs or a disease into a humanoid host, who eventually becomes a slaad. None of these aspects are discernable from the stat blocks, though it’s important to note that anthropomorphic frogs have existed as a fantasy element at least as far back as the Egyptian goddess, Heqet. In other words, the combination of all these aspects is what’s arguably copyrightable, and because it’s unreasonable to claim that a significant portion of this combination is discernable from viewing the stat block, no copyright has been infringed by a one-stop stat block.

However, let’s look at the most complex slaad stat block within those sources, the death slaad (Monster Manual, page 278). Of the eleven spells known to the death slaad through Innate Spellcasting, nine of them appear in the list of spells that appear virtually everywhere else. The other two, Cloudkill (creating a poisonous cloud) and Fireball have no connection to the slaad’s backstory and are stock abilities appearing extensively in fantasy. The same can be said of their other traits, Shapechanging, Regeneration, and their resistance to nonmagical items. It’s clear that the choices were made for mechanical reasons, which is to be expected of high-level, complex creatures, and that explains why those combinations, or similar ones, appear elsewhere (see, e.g., Oni, Monster Manual page 239; Vampire, Monster Manual page 297; Juiblex, Mordenkainen’s Tome of Foes, page 151; Bael, Mordenkainen’s Tome of Foes, page 170; Devkarin Lich, Guildmasters’ Guide to Ravnica, page 198). The higher the level or complexity, the more difficult it is to balance the monster to the players’ characters, so once WotC found the right few mixes, they stuck with it for all of them.

Perhaps a stronger argument for copyrightability can be made for the red slaad (Monster Manual, page 276). Its Claw attack includes within it a reference to the implantation of an egg, which vaguely describes its means of reproduction. However, because that means of reproduction isn’t unique to the slaad, but rather has been described in cinema (the Alien franchise, which predated the creation of slaadi by just over two years), exists in nature (the Tarantula Hawk), and even within the same 5th Edition book in which the slaad appears (this is also roughly how the mind flayer reproduces), by itself this can’t be seen as original material, but rather is properly characterized as a stock trait. (If it were copyrightable, then the makers of the Alien franchise would have sued WotC.) After all, far more detail is provided on the slaad’s Wikipedia page, which doesn’t appear to have ever received a takedown request. Considering that WotC is ignoring the copying of creative elements and instead demanding the takedown of the one-stop stat blocks, WotC is clearly attempting to leverage its copyright to protect game mechanics. In any event, it isn’t original to the slaad, so the stat block would have to say a bit more about the combination of the slaad’s nature in order to constitute copyrightable material.

However, let’s assume for the sake of argument that the implantation of eggs is original and by itself sufficient to give rise to copyrightability. It wouldn’t matter. Their inclusion in the stat block wouldn’t bar reproduction of the stat block by a third party. The rationale isn’t going to be popular. Certain companies in the gaming industry have sold the gaming community a bill of goods about game system complexity. The industry has convinced most gamers that a logically and mathematically normalized system can’t be fun, so that’s why they’ve created systems with mathematical irregularities and quirks. In truth, those irregularities and quirks serve a completely different purpose. They exist to create a quasi-trade secret surrounding the gaming engine. It’s not a true trade secret, because it’s been published, but the more complicated the gaming engine, the less likely people are to reverse engineer it in order to create their legal, third-party content. Many potential, amateur, third-party designers lack the mathematical skill necessary to do so, and many others don’t want to do the work, which includes not only mathematical analysis but also large amounts of playtesting for which they don’t have the time or resources. Moreover, those in the first group won’t trust the work of those in the second group, so the demand for third-party content is reduced. (In WotC’s case, the DM’s Guild restores some trust in third-party content, but that’s because WotC supports it, which they do because they get a percentage of those profits.)

Accordingly, WotC protects the game system even though neither copyright nor patent law are available to do so. This is perfectly legal but creates another catch-22. By creating such a complicated system, WotC and third parties are forced to stick with a limited combination of abilities and spells for their stat blocks (as mentioned above). Their preference for certain abilities and spells shows that even swapping a 3rd-level spell for another 3rd-level spell doesn’t guarantee the proper threat level, but it’s even harder to replace abilities such as the implantation of eggs from the red slaad stat block. It’s difficult to create an ability that represents the same exact challenge for the players without a lot of playtesting.

In other words, the alleged copyrightability of implantation of eggs is so intertwined with game mechanics that they can’t be separated, so public policy requires that the public be free to reproduce that ability even if the implantation of eggs is rises to the level of copyrightability. As in Assessment Technologies, this doesn’t mean that WotC would lose any such copyright; it just means that in the specific context of the stat block, it would be unenforceable, and attempting to enforce it would be copyright misuse.

The red slaad stat block is one of the better arguments WotC has for the copyrightability of a stat block, and for the reasons given, it fails. However, if a judge held that the implantation of eggs (or anything else) mentioned in a stat block were copyrightable, the argument for copyright misuse is even stronger. Because the copyrightable and uncopyrightable material are inseparable, the public’s interest in the uncopyrightable material must prevail, so WotC’s demand that the one-stop stat block project be terminated would represent an even more direct attempt to leverage copyrightable material to withhold uncopyrightable material from the public. That is, the copyright misuse occurs within the boundaries of the stat block itself. This falls squarely under the same reasoning as Assessment Technologies and Lasercomb.

Example #2: The Mummy Lord, Monster Manual, Page 229

This is an even more complex stat block, giving WotC room to make something unique, creative, and therefore copyrightable. Using the math from above, we know that some of the spells in this stat block were chosen for mechanical purposes. Eliminating those spells leaves us with these: Animate Dead, Contagion, Divination, Guardian of Faith, Guiding Bolt, Harm, Insect Plague, Shield of Faith, Silence, and Spiritual Weapon. However, we now need to eliminate spells that represent traditional powers of a mummy, such as Animate Dead, Contagion, Divination, Guardian of Faith, Harm, Insect Plague, and Silence. (This will also eliminate all the non-spell abilities appearing in the stat block.) WotC can’t claim ownership of applying those spells and abilities to a mummy because doing so predates WotC’s use. It wasn’t WotC’s original work; they copied it from a fantasy element. So, what story is told by remaining spells, Shield of Faith and Spiritual Weapon? Nothing. Based on the extensive write up of the mummy in the Monster Manual, the spells don’t confirm anything WotC has told us about their version of the mummy. The spells, therefore, serve no purpose beyond their mechanical application. They’re stock powers that are necessary to fill spell slots and create an appropriate challenge.

Example #3: Obzedat Ghosts, Guildmasters’ Guide to Ravnica, Page 245

This stat block, found in the Guildmasters’ Guide to Ravnica, is probably WotC’s strongest argument for copyrightability. There are five ghosts that rule as a council over a specific guild. Each of the ghosts are very similar to one another, which is why a single stat block is used to describe all five. Most of the stat block contains abilities ordinary to ghosts of fantasy, but each ghost has one feature that separates it from the other four. For example, while one of them can cast Ray of Enfeeblement innately, another can fend off a killing blow and stay in the combat. Still another gains a tactical advantage whenever it receives healing. These ghosts can summon each other, and when doing so collectively benefit from each other’s presences. The more ghosts that are present, the higher each ghost’s defense is.

While each of these benefits are mechanical, the ability to summon each other is perhaps more flavorful than mechanical, doesn’t appear with ghosts in fantasy (though ghosts have been summoned by humans), but is tied to the backstory of these ghosts. It’s certainly possible (perhaps likely) that this small number of non-standard features are sufficiently creative to make these more than just ordinary ghosts from fantasy, that the fact that these abilities exist in other creatures is irrelevant (less likely, as they are “stock” abilities), and that a court could find the mechanical and creative elements of the ghosts as separable (far less likely). However, even if a court were to make all such findings, the exception does not make the rule. One would be hard pressed to find many other stat blocks that even come close, yet the re-publication of all those other stat blocks has been forbidden by WotC. (The Obzedat Ghosts were not being considered for the one-stop stat block project before WotC’s demand.)

Major NPCs

Recall Evard from above. Evard is an example of an important historical figure in Dungeons & Dragons lore. He was a specific wizard with a specific backstory . There are several other characters like that, many of whom have been represented in WotC stat blocks. Each of these characters has a unique backstory and history, and yet their stat blocks are copies or near copies of generic stat blocks appearing in the Monster Manual or Volo’s Guide to Monsters. There are countless examples, so I’ll leave the reader to compare the Archmage from the Monster Manual to Manshoon from the Waterdeep: Dragon Heist adventure. If the stat blocks for Manshoon and other important individuals with different backstories are remarkably similar to the stat block for the generic Archmage, how can one reasonably say that the stat blocks contain information expressing that backstory? In the case of Manshoon, he has an attack called Metal Fist, which certainly suggests something odd in his backstory, but even if its metal nature were included in the one-stop stat block for the “Wizard Clone” (it wasn’t), that wouldn’t be nearly enough to claim infringement of the character. A single, small, personal detail appearing in substantially similar stat blocks doesn’t change the fact that stat blocks are merely mechanical representations of these stock characters.

Compare also Dragon Heist’s Remallia Haventree to the Abjurer from Volo Guide to Monsters. The differences consist of the swapping of a few stock powers and a few, minor, mechanical changes. The same can be said of Dragon Heist’s Skeemo Weirdbottle, who is a Mage from the Monster Manual modified only to reflect that he’s a gnome. Dragon Heist’s Renaer Neverember isn’t even given a stat block. Instead, the reader is directed to use the generic Swashbuckler stat block from Dragon Heist, merely specifying Renaer’s alignment and the language he speaks. There’s little or nothing in the stat blocks that represents anything unique (or in some cases, even interesting) about any of these “important” individuals even though their writeups are likely copyrightable. This proves that there’s no relevant overlap between the stat blocks and the backstories. Especially in light of the fact that these characters are not significantly different from any character a player would create under the rules, there’s no reasonable, legal basis for restricting their re-publication.

Fantasy Elements

Even if a stat block exists for which its spell selection is unique among all the stat blocks (i.e., no other stat block shares that same combination), and the stat block uses at least a few spells that aren’t used in any other stat block, the fact that these spells all represent fantasy elements means that their use can’t be deemed original, and thus is not copyrightable. As the Supreme Court has said, the sine qua non of copyright is originality. Unless WotC can point to one of its spells that has never been used before in fantasy, it cannot be said to be “original” if applied to any creature. Fantasy spellcasters aren’t the only ones that enjoy the benefits of magic. Spellcasters have often cast their spells on others, and that notion is as old as the concept of magic itself. No one would be surprised to see a giant flying simply because giants aren’t known as spellcasters in fantasy. It would be expected that spellcasters could cast such a spell on a giant – that’s part of the nature of magic – so a flying giant isn’t original even if a specific example of a flying giant is elusive. Giving a giant the spellcasting ability is similarly not original even if that example is also elusive, as all manner of creature has been known to cast spells. This is probably what the DaVinci court (among others) was thinking when it refused to allow copyright in the selection of stock powers regardless of their combination, and regardless of what character selected them.

Counterarguments

There are two obvious counterarguments to the analysis of the stat blocks above, both of which can be addressed by revisiting the mummy lord.

Motive

The analysis places an emphasis on WotC’s motive in selecting the spells. Should that matter? If a novelist attempts to write a drama, but the novel is unanimously viewed as a comedy, is it still a drama? No, it’s a comedy by every meaningful measure except the eye of some Beholders. Regardless of one’s philosophical characterization of the work, it certainly remains creative regardless of motive. Why then does motive matter here? Because the motive serves as evidence that there really weren’t more than a very few viable options that could exist within the 5th edition framework. It shows that spell selections were necessary as a matter of mechanics rather than an attempt to create an artistically interesting character, and the selection is so limited that direct copying would be impossible to avoid. In short, the designers didn’t have a choice, the players don’t have a choice, and choice is key.

The Low Bar for Creativity and How Characters Are Built

The minimum level of creativity necessary to warrant copyright protection is very low. For the Mummy Lord, there were two spells that, at first blush, don’t appear to be among the most-used spells for Spellcasting. The choice of those two spells appears to be arbitrary, and as minimal as that selection is, if we reject the holdings of all the District Court cases to date and allow copyright in stock abilities, shouldn’t that selection represent enough creativity to warrant protection?

Let’s assume that it does. Even so, WotC still can’t restrict their use. According to the game’s rules, a player is free to select any combination of spells they want if those selections meet the requirements of those rules. Therefore, if a player chose Light, Prestidigitation, Ray of Frost, Color Spray, Magic Missile, Shield, and Sleep for their 1st-level wizard in accordance with the rules of character creation, and then published it to their blog, they should be free to do so. There shouldn’t be any opposition to this notion. However, those are the specific choices WotC made for Sharwyn Hucrele in Tales of the Yawning Portal. This occurs because monsters have the same mechanical restrictions on spell selection as the players do. See Monsters with Classes, Dungeon Master’s Guide, page 283. Considering how popular all but one of those spells are, one should expect players often to make the same exact selection as directed by the rules.

The mummy lord is a more complex stat block, so there are far more combinations of spell selections available, and the likelihood of choosing the same exact spells seems much lower. However, it isn’t low enough. The Mummy Lord builds its cleric spell list exactly as a player’s character would, and as shown above, those choices make thematic and mechanical sense. There are just two spells, Shield of Faith and Spiritual Weapon, that were chosen from among spells not in the most popular list. Let’s do a little more math, looking specifically how popular those spells are for clerics. Of the 15 1st-level cleric spells in the Sourcebooks, 5 of them (33.3%) fill 76 (67.8%) of the 112 available slots, and Shield of Faith is among them. Of the 17 2nd-level cleric spells in the Sourcebooks, 4 of them (23.5%) fill 52 (70.3%) of the 74 available slots, and sure enough Spiritual Weapon is among those 4. Moreover, Spiritual Weapon appears to be one of the most popular spells chosen by almost all players for their clerics, and all the mummy lord’s lower-level spells are among the list of spells chosen for purely mechanical reasons. This math doesn’t include cleric spells from a cleric domain, but none of the mummy lord’s spells deviate from the basic list, which means the mummy lord isn’t given domains. This is likely to balance the fact that the mummy lord’s traits provide the same level of threat that those domains spells would provide.

But this isn’t the point. It’s possible that there’s a stat block that makes suboptimal spell selections that don’t represent fantasy elements, and thus one or two spells could represent that minimum level of creativity justifying a copyright. It still doesn’t matter. The rules dictate that players may make these same choices, and sooner or later they will. In fact, WotC encourages it. See Creating New Character Options, Dungeon Master’s Guide, page 285 (“If the options for player characters in the Player’s Handbook don’t meet all the needs of your campaign, consult the following sections for advice on creating new race, class, and background options.”); Monstrous Adventurers, Volo’s Guide to Monsters, page 118 (“This section is aimed at DMs who wish to expand the race selections for their campaigns beyond the typical folk of D&D. . . . Creating characters as creatures normally cast as villains offers up some interesting roleplaying possibilities.”). Part 1 warned that relying on fair use is risky. Not here. Even if there’s a copyright in a stat block, it’s hard to imagine a district court that wouldn’t find copying it a fair use. Finding otherwise would make RPGs unplayable as intended by their designers. Do you really want professionals in any field to be able to sell you products or services that necessarily give them grounds to sue you for their intended use? In fact, nothing would kill creativity faster. Knowing that merely using the creative work subjected the player to high-dollar judgments would discourage everyone from ever being a player. The market would dry up, and creativity would suffer.

WotC’s behavior is even more offensive if they claim that even the simple Goblin stat block is barred from republication (without the OGL). WotC has provided the mechanics for making goblin player characters. See Monstrous Adventurers, Volo’s Guide to Monsters, page 119. What is a Goblin stat block other than the underlying template for such a character? Every goblin character is the basic Goblin stat block with just a few added details. If a DM wanted players to create 0th-level characters, selecting only race and background but not a class, the resulting data would be nothing more than the goblin stat block. In addition, the Goblin Boss adds nothing original beyond the basic Goblin, so if the underlying goblin data is uncopyrightable (or justified through fair use), then the same can be said of the Goblin Boss or any Goblin character with class levels. In fact, this can be said about any stat block for any creature, no matter how complex, including yuan-ti (as expressly provided in Volo’s Guide), nagas, or even unique creatures like the arch-devil, Moloch. As unusual as it may be, the rules implicitly contemplate a campaign where the PCs could be archdevils leading a rebellion against Asmodeus, and at least some people would enjoy just such a campaign.

WotC isn’t alone in their instruction. At least a large number, perhaps most (or even all), RPG rulesets actively encourage the gamemaster to modify the rules to suit their campaigns. It is a trivial matter to anyone who’s ever run a game that allowing a player to run a Mummy as their character is unusual but not out of the question. A DM could easily decide to run an undead-themed campaign in which all the players’ characters are of undead races, and at least a couple 3rd edition Dungeons & Dragons sourcebooks (Libris Mortis and Savage Species) provided rules to do exactly that. If those characters also have class levels, the likelihood of the same spell selection is high. Just as the designers wanted to build a traditional mummy but used mechanically chosen spells when all of those thematic options were exhausted, so will the players as directed by the rules. Eventually, that Mummy will level up to a Mummy Lord, and even that stat block could easily be precisely duplicated by coincidence.

What could possibly be the basis of WotC requiring the take down of the one-stop stat block for these monsters? There are three possibilities, all of which could constitute copyright misuse, but in any case, prevent WotC from succeeding on a claim of infringement. First, they acknowledge that the mechanical content of the stat block may be republished but object to the use of the name, Sharwyn Hucrele. As discussed, they can’t own a name, so demanding a takedown under threat of an infringement claim is misusing their copyright. Second, they acknowledge that the entire stat block, including the name, may be republished, but they don’t like that this could hurt their sales of that sourcebook, so they demand the takedown anyway. This is essentially the same as the first example, so again, this is copyright misuse. The third and least likely possibility is that the entire legal staff at WotC doesn’t understand copyright law, but ignorance of the law wouldn’t excuse their misuse.

Call it uncopyrightability, call it fair use, call it an implied license, call it “unclean hands,” or call it maple syrup, but don’t call it actionable copyright infringement. Players are specifically directed to do exactly that sort of thing, both by the nature of the rules and the advice of those that made those rules. If players then decide to place their characters in a compact, monster-like stat block format that itself is purely functional in nature, then no copyright is infringed. That’s essentially how the one-stop stat blocks can be viewed: A collection of sample monstrous player characters arranged in a different, purely functional format.

What Does This All Mean?

Game designers find themselves (rightly) in yet another catch-22. Players want to face the traditional versions of devils, dragons, and frost giants, so game designers can’t give players the immersion in culture they desire unless they provide material that’s long been in the public domain. Only where the game designer 1) has deviated from fantasy elements; or 2) creates an original creature and paints a picture of that creature’s nature by a complex selection of spells, can the game designer have even a weak claim of a copyrightable stat block. A miniscule number of (if any) stat blocks meet either criteria, and a careful analysis of WotC’s stat blocks shows that the spell selection for completely different creatures are identical or near identical. This means that the selection isn’t about telling a story, but rather about striking a careful mechanical balance between the players’ characters and the monsters they face. This in turn means that WotC didn’t really have a wide array of choices for spell selection, and therefore assures that players will inevitably make the same choices. Regardless, in the case of WotC and the one-stop stat blocks, WotC has claimed ownership to many stat blocks and spell descriptions that don’t meet any of these criteria. From the email they sent:

Wizards realizes that the Dungeons & Dragons books are more than just “rules” or “instructions.” The text is highly descriptive, and as such, is inherently copyrightable.

Wizards requests that you remove your stat blocks, or create your own material under the Open Game License.

Whether or not they can manage to cherry-pick a few exceptions is irrelevant. It’s too late. They’ve already committed copyright misuse with the vast majority of their work, and so their copyrights shouldn’t be enforceable until they’ve publicly changed their enforcement practices. At the very least, reproducing the stat blocks is necessarily a fair use.

But What If You’re Wrong?

Some readers will never be convinced that stat blocks aren’t creative legally speaking, perhaps because they misunderstand what creative means in this context, and perhaps because they’re protecting their position in the industry. Let’s, therefore, assume that a stat block contains mathematical expressions that are somehow copyrightable. In the alternative, we could assume that the Supreme Court overrules its own decision in Feist and says that hard work justifies the creation of copyright where none should otherwise exist. In either scenario, a stat block could be considered creative legally speaking.

It still wouldn’t matter.

Consider any 5th edition stat block. It has sections for creature size and type, ability scores, saves, actions, etc. What would happen if, to avoid infringement, the ability scores were eliminated from the stat block? Let’s also say that the Court determines that removing the ability scores successfully leaves too little behind in the stat block to warrant “modicum of creativity” or “sweat of the brow” copyright. Everyone’s happy, correct?

Not exactly. Now you’re no longer playing 5th edition. 5th edition, among other things, includes ability scores. If ability scores don’t appear in the stat block, there’d be no way to calculate saving throws that didn’t appear in the saving throw line. If those ability scores must be removed from the stat block to avoid infringement, then the copyright protection is extending to game rules regardless if creative work is also being protected. This is exacerbated if the court required even more removed, such as references to saves, resistances, etc. Instead, let’s say that the court required removal of the trait, Nimble Escape, from the goblin stat block to avoid infringement. As discussed above, now the goblin is less powerful than it should be, which upsets whatever balance – hard, medium, or easy – the DM wanted for the encounter by making it just a little easier. Again, you’re no longer playing 5th edition as written because you aren’t getting the proper mechanical balance tied to the goblin’s CR.

This creates a huge problem solved in only one of two approaches: 1) abandon our ludicrous hypothetical that copyright can exist in a typical WotC stat block, or 2) assume that the hypothetical copyright for such a stat block must always give way to a fair use defense. As for the fair use approach, remember that the public must always be able to express an idea, whether it be the physical might of a character or the ability to take an extra action per turn to escape danger. It must also be able to express the rules of the game. If the hypothetical copyright in a stat block prevents the public from writing down an expression for either and how they fit in the system, one way or another that copyright must yield to the public’s right. Fair use would be one way to avoid transferring game rules from the realm of patents into copyright. No court in America would allow that transfer to happen, and there are at least a couple landmark Supreme Court cases that would have to be reversed in order to do so.

A Bit Confusing?

This may seem a bit convoluted, but if so it’s because the various ways in which a game designer could justify forbidding the re-publication of their stat blocks and spell descriptions are themselves convoluted. Every one of these attacks are against the re-publication of a mechanical representation of a creature, usually one from fantasy. It should be no surprise that attempts to extend art-only protection to uncopyrightable or public domain material should appear murky and confusing, and give rise to several catch-22s that prevent copyrightability. The entire notion is nonsense, both legally and logically speaking.

Let’s say a player’s character was going to meet an ancient gold dragon because the character needed to learn the history of gold dragons. That is, the character isn’t going there to fight, fool, or schmooze with the dragon; it simply needs information that the dragon already has or can look up in a book, and let’s assume that the dragon is a librarian who is therefore more than willing to give up this information when asked. (D&D has adopted the fantasy element of intelligent dragons that can read and speak.) Whatever WotC’s backstory is for gold dragons, it’s most likely comprehensive and possibly copyrightable. Would the DM need the gold dragon’s stat block for such an encounter? Would the stat block help at all? Of course not, because there isn’t going to be any conflict, neither physical nor social. The mechanical representation of the gold dragon would therefore be irrelevant to this encounter, and there’s absolutely nothing about the gold dragon’s backstory contained in its stat block. Stat blocks are creatures of game mechanics, not artistic expression.

On the other hand, if the players were going to fight the dragon, would the DM need the creative write up? Would the DM need to know what god the dragon worshipped or when the first dragon was born to run a pure combat? Again, of course not. None of that is relevant to a pure combat. Further still what if the DM didn’t tell the players what they were fighting? Let’s say that the monster is incorporeal, ghostlike creature that tries to touch the players’ characters to do damage. Could it be a wraith? No, because when it’s too far away, it resorts to audible babbling that results in psychic damage. Considering that the creature must be roughly around 4th or 5th level, clearly it must be a CR4 banshee, right? Certainly, some readers have an encyclopedic knowledge of the game’s creatures, but most wouldn’t be able to identify the creature as a CR5 allip from Mordenkainen’s Tome of Foes, because the stat block doesn’t tell you anything about it beyond the game mechanics, and the stock abilities are largely interchangeable (in this case, with the Banshee). Obviously, the stat blocks are all about mechanics, or at the very least so much about mechanics as to render creative elements unenforceable.

Of course, a given encounter could result in both scenarios, so drafting a massive stat block that includes both types of information could be copyrightable, but I’m unaware of any stat block that includes enough creative, inseparable elements to qualify. Even if one exists, if the creative parts are capable of being removed before re-publication without affecting the mechanics, any such copyright wouldn’t be infringed if those creative elements were left out. As the red slaad stat block demonstrates, it’s possible that WotC has created a modicum of creative work in that stat block, in which case they’ve misused it to protect fantasy elements and game mechanics; or they haven’t included sufficiently creative work to justify a copyrightable work in the stat block at all, in which case they’re misusing the Monster Manual as a whole as a tool to protect fantasy themes and game mechanics. Either way, they can’t forbid re-publication of their stat blocks as they’re currently expressed. The fact that this is so convoluted adds to the egregiousness of WotC’s copyright misuse. This is far too in depth of an analysis to expect of a non-attorney gamer who just wants to write about the game on a blog. If WotC places “rules” (such as the Open Gaming License) in place that convolute the issue even further, it’s clearly an attempt to capture non-copyrightable work from the public domain.

Caveat

This is a fact-intensive analysis. It’s possible to infringe a copyright in reproducing spell descriptions and stat blocks depending on how they’re written, and certainly possible to run close enough to infringing a copyright as to encourage WotC to use intimidation as a means to suppress creativity. If you insist on publishing stat blocks but don’t want to be the legal test case for your jurisdiction, make sure everything published is mechanical, rewording things if at all possible, and have it reviewed by an attorney.

In my next post, I’ll wrap this up with a discussion of the Open Gaming License, which solidifies the claim that WotC is intentionally misusing their copyrights. In fact, if everything up to this point has been wrong, in a small sense, it probably wouldn’t matter.

Advertisements

Author: Frylock

Robert E. Bodine, Esq. is an attorney in Virginia focusing his practice on real estate and intellectual property law. He is one of the founding members of the Gamers’ Syndicate, a Washington, DC-based gaming club. He was the author of the Loremaster.org article series, Protection from Chaos, dealing with intellectual property law matters as they relate to the gaming industry, and has represented several game designers on intellectual property matters. You can follow him on Twitter @RobertEBodine for politics, @PropertyAtty for legal matters, @GSLLC for gaming matters, and if you’re a sports fan, @MMADork.

18 thoughts on “Part 2: Copyrightability of #RPG Abilities and Spells #DnD #copyright #iplaw

    1. Would you comment on the analogy of a game mechanical stat block to a food recipe, per the circular? Seems like the stat block is, to an extent, “a list of ingredients.”

      1. I really don’t know what to say. Recipes appear to be treated in a manner similar game rules. Their specific expression could be covered, but what they’re accomplishing isn’t. So, I can prevent you from copying my precise instructions for key lime pie, but only to the extent that it doesn’t stop you from writing your own instructions in your own words for creating key lime pie. That’s a heavy restriction on my copyright, especially if the recipe is simple and you take no artistic liberties with your directions. If necessary, fair use would kick in, but that’s always a gamble in court. If things get too simple, such as the instructions for boiling water, there wouldn’t be copyrightability at all, so there’d be no restriction. I’m not sure where you want me to go with this, but if I haven’t addressed your question, and you can further elaborate on it, maybe I can offer something that I haven’t already said with game rules.

  1. It seemed to me as a layperson, that if the copyright office basically shoots down “look, a list of ingredients can’t be copyrighted. As Captain America once said: ‘Son…just don’t.’” and methods and processes can’t be copyrighted, then combining the two principles means that the second bit is game mechanics (a method for resolving uncertainty) and a stat block is a list that can be used with a process. I was just wondering if the firm stance on “list of ingredients” helps the case that the stat block is not subject to copyright. In short, I was wondering if the analogy of stat block to recipe list of ingredients is a shorthand for the case you made at length in your last two posts.
    Or, if the analogy doesn’t hold up because [legal stuff], I’d be interested to know from a legal standpoint what that breakdown is and why.

    1. I think it’s a good analogy, which you may have inferred by my response. The reason it’s a good analogy is because many of the same arguments apply. However, I’d have to give it a little more thought. What happens when you concoct an extremely complicated recipe? Also, consider my novel approach to extreme complexity. If it gets too complex, does the interdependency necessarily lead to fair use? Perhaps more so with a recipe because recipes are always interdependent, right? I’d have to ponder that, especially because I’m a terrible cook. 🙂

      But my first thoughts are that the analogy is strong.

  2. Pingback: Short | Delve

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.