Part 4: FAQ/FRI #DnD #copyright #iplaw #ogl

In case it isn’t clear, Wizards of the Coast (“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.

Unsurprisingly, these three articles have generated a lot of questions and concerns. This is an attempt to address as many of these as feasible. If you post comments below, I’ll answer even more

Killing WotC

From Twitter: “Wizards of the Coast one day will fall. We are a day closer to that day.”

First, I don’t think that these posts and any litigation that comes from it will significantly damage WotC. They’ll just be forced to adapt, as will the rest of the industry when those other companies realize that WotC’s “leadership” was just self-serving manipulation. Besides, WotC themselves admit that freely distributing some of their material isn’t bad. Setups and misstatements of the law aside, they’ve claimed to have done so with the SRD. They’ve freely given away some class writeups for which copyrightability can be reasonably argued. Ultimately, WotC should be fine.

Second, I’d be greatly disappointed if this did kill WotC, so I don’t agree with the sentiment at all.

Third, we all better hope this doesn’t kill WotC. As I said, the entire industry will be forced to adapt. If that’s not possible for WotC, then it isn’t possible for anyone else. Do you actually want the entire gaming industry to collapse? I don’t.

Assuming a Total Loss for WotC, What Are the Consequences to the Industry?

You’re asking the wrong guy. I have my speculations, but they’re probably no better than your own. However, for the record, here’s what I suspect, which should be addressed by industry professionals.

Gaming companies will be forced to abandon books like the Monster Manual and focus more on books like Volo’s Guide to Monsters. Rather than mass produce monster stat blocks, they need to focus on cultures, backstories, storylines, etc. of those monsters, making sure that whatever stat blocks are provided don’t represent the impetus for buying the book. This in turn means that their game systems will have to be written in a way that players can quickly and intuitively design their own monsters. If they don’t, the game will be unplayable. Many designers have added unnecessary complexity to their mathematical systems in order to assure a market for bestiaries, and convinced the community that this was necessary to make the game fun. Now that this is no longer an option, they’ll need to come clean and prove otherwise.

So, the question to ask any professional game designer you know is this: Can you produce a game subject to the constraints outlined above that’s still fun to play? If the answer is yes, no one’s life or profit margin will change significantly.

Stat Blocks Aren’t Facts

An attorney took me to task for characterizing stat blocks as facts. In the copyright context, facts are things that no human being created, such as the circumference of Saturn. Stat blocks aren’t strictly facts. Instead, they’re human creations that aren’t creative enough to rise to the level of copyrightability. Those are two different things. With facts, there’s no analysis of creativity. They simply aren’t copyrightable from the get-go. With low-creativity creations, you must perform that analysis to determine whether they’re copyrightable. This is 100% true.

However, once you determine that creative works aren’t copyrightable, from that moment forward in the conversation, they’re indistinguishable from facts. The only important aspect to either at that point is that they’re uncopyrightable, so I could fairly use “facts” as shorthand to represent both. Everything I said about one would apply to the other.

What the attorney didn’t fully appreciate is that I was writing this for two very distinct audiences, attorneys and laymen, each of whom needed to hear different things. However, when in doubt, I favored the laymen. They had to understand what I was saying, and if simplifying my language was helpful in that regard, then that was the best way to write it. It wouldn’t affect an attorney’s understanding of what I was writing because attorneys would still be aware of the distinction.

In fairness to the commenting attorney, at the point that I first referred to stat blocks as “facts,” I hadn’t yet established that they were uncopyrightable. In legal writing, we tend to state our conclusions first so that the reader knows where were going, and then the justification follows. However, my justification had to cover a lot of ground, over half of which was reserved for post #2, so by frontloading my designation of stat blocks as facts, and failing to conclude my argument by the end of the post, it appeared I was missing that distinction. Was that a bad approach to take?

If so, take it up with Justice Sandra Day O’Connor. She did the same thing in Feist. Phone numbers were referred to as facts throughout her opinion, signed onto by seven other justices (Justice Blackman concurred without explanation). Are phone numbers facts? Do you expect to find phone numbers growing in the bushes during your hikes through the wilderness? Of course not. A human (or a human’s software) at the telephone company selects a phone number (subject to area code and exchange constraints) and assigns it to a person. They could choose from a large number of phone numbers but choose one in particular. They’re status as a phone number occurs only after someone at that phone company creatively selected and assigned it as such. While the raw number exists in nature, its status as a “phone number” has some small amount of creativity. It just isn’t creative enough, and because the question of creativity was a side matter in that case, Justice O’Connor chose to use the same shorthand even though her primary audience consisted of attorneys. One could also interpret her opinion as saying telephone numbers “become facts” once assigned, so by the time the phone company places it in a phone book, it becomes a fact. I think this would be a strange interpretation, but assuming that’s the case, it doesn’t reduce the strength of it’s comparison to stat blocks, because one could say the same thing about them. Under the same logic, stat blocks become facts once WotC creates them, so a compilation of stat blocks remains uncopyrightable (despite appearing alongside copyrightable elements in the Monster Manual, etc.).

This isn’t the only time that I played a little loose with copyright law. For example, in the discussion of the slaad, I suggest that the idea of a slaad can be copyrighted. The idea of a spy can’t be copyrighted, but the character of a specific spy, James Bond, can be. What’s a slaad? Is it an idea or a character? To be precise, it’s a species, which seems to make it an idea, but it’s completely make-believe, which one could characterize as a bunch of specific characters. I didn’t want to get into this abstraction/reification debate because it wasn’t important to my point, so as I did in a few other places, I simply assumed WotC had a possible copyright, then asked, “So what?” I then moved onto why that wouldn’t matter. Copyright can be complex, and I certainly covered enough to make the average gamer’s head spin.

To the extent I confused any of the laymen reading this, I apologize, but I have a feeling that this discussion has as much potential to confuse you than what I wrote in my first post.

Complexity and Non-Stock Abilities

It may seem counter-intuitive that the more complex a system gets, the less it enjoys copyright protection. At the extreme end of the complexity spectrum, this actually makes sense, but the explanation gets a little weird.

In science, an “emergent property” refers to a characteristic that a group has that the individuals comprising that group do not have. A looser definition is something that rises from extreme complexity, where the whole becomes greater than the sum of its parts. Consciousness is thought to be an emergent property of the vast number of neural connections in the brain. Civilization is an emergent property of the vast number of human relationships when bound together in a relatively small area. Similarly, the concept of magic is so complex at this point that even truly original combinations are nevertheless contemplated by copyright law, disqualifying them for protection.

I think this is what the DaVinci Court was trying to say with respect to non-stock abilities but couldn’t because the subject matter didn’t lead to the proper argument. Even if there has never existed the fantasy element of an elf that was said to have the power of invisibility, the massive complexity of the concept of magic trivially implies such an element. Dwarves have done it, humans have done it, dragons have done it, oni have done it, fungi have done it, etc. Thus, even if you were literally the first person to create an elf that could turn invisible, while technically creative, it’s not nearly creative enough. You can think of it this way: The DaVinci Court assumes (rather reasonably, I believe) that you must have been considering all of those creatures being able to turn invisible when you decided an elf could too. Ergo, while technically creative, it isn’t creative enough. There’s just been too much done with magic to think that your contribution to art was copyrightable. In this respect, the concept of what magic includes outpaces the ideas that have been literally expressed.

What about a spell that’s never been contemplated before? Let’s say that each of those creatures (except the elf) had the D&D 5e version of invisibility. It lasts until you cast another spell or attack. Let’s also assume that we’ve seen creatures that can fly, charm a person, or push them away, but that doesn’t go away when they cast another spell or attack. How much of a creative leap is it to come up with an elf that can 1) turn invisible, and 2) stay invisible even after it casts a spell or attacks? Considering that we’ve seen all manner of creatures cast all manner of spells, and that we’ve seen all manner of creatures be able to sustain spell effects even after casting another spell or attacking, the leap isn’t great enough. In fact, it naturally follows from how the typical person defines magic. This necessary implication is something akin to an emergent property of the total body of magic as imagined. Perhaps it fits the definition of an emergent property perfectly. I’ll allow the scientists to debate that.

That’s why even non-stock abilities shouldn’t be protected. Even original combinations of abilities are easily contemplated based on the nature of magic and spells, such that those original combinations aren’t creative enough to justify a copyright. If the games in those court cases were RPGs, I’m sure that’s what the courts would have said (in different words).

The Pattern of Bad Behavior and Cultivating Misinformation

I referenced WotC’s pattern of bad behavior without being able to pin down how far back it went. I also claimed that WotC has cultivated a misunderstanding as to what third parties can and cannot publish. These were based purely on my experiences over the years, most of which I expect most readers to have shared, and so I provided little support for them. About four hours after I published the third post, I found some of that evidence.

In 2004, WotC published a FAQ (last visited 8/26/2019) explaining their interpretation of the 3rd Edition OGL. Among other things, the FAQ states that Open Game Content “cannot be something that is in the public domain,” but the 3rd Edition OGL itself defined Open Game Content as including “the game mechanics and includes methods, procedures, processes and routines . . . .” Unless WotC is under the mistaken impression that it was granted a patent in the d20 mechanics without having ever applied for one, how could they possibly think any of those things weren’t in the public domain? In another hypothetical question, WotC was asked if the terms were unfair, and their answer was, “If you don’t like the terms of the Open Game License, don’t publish Open Game Content.” Remember, this includes the game mechanic.

WotC also claimed that a user could identify a character’s name as “Product Identity,” thus prohibiting its distribution. WotC was stating the position that a character name could be deemed copyrightable. I suppose their “out” is that they were contemplating the name being used as a trademark, but the specific example given was that of a character name being used in a stat block. At the very least, WotC was suggesting to laymen that names could be copyrighted as well. In the context of the prior three posts, it appears they were attempting to protect their perceived interest in names of characters and creatures. Again, we’re not inside their heads, but the evidence is strong, and ultimately their actions will be more important than their motives.

Moving forward to the less comprehensive 5th edition FAQ (last visited 8/26/2019), the second frequently asked question provides an answer that shows intent to make the 5th Edition OGL a continuation of the 3rd Edition OGL. Keep in mind that the OGL still applies to 3rd Edition, and it appears that WotC’s general approach to the subject matter has remained unchanged.

In fairness, I will say one thing in their favor (without being too nice about it): They also answer the first question with, “The goal of the SRD is to allow users to create new content, not to replicate the text of the whole game.” This is the noble goal I referred to in part 2. In most cases, do you really need to republish what WotC has already provided? What does that do other than to harm the creators’ market for their IP? If you’re going to publish gaming material, make sure you’re introducing something new that isn’t yet available. Be a help, not a hindrance.

But here’s the not-so-nice part: That’s exactly what the one-stop stat blocks did. They provided a form of the stat block that WotC wouldn’t provide and did so only to the extent necessary to fulfill its mission. In doing so, they made the game more accessible to several DMs. You may personally not have use for them, but everyone is different. I won’t run games without them.

My Intentions

As these posts have circulated, I’ve been accused of bad intent; specifically: 1) I picked a fight; 2) I’m trying to take the easy way out; 3) I’m manipulating the law to do an immoral thing; 4) I’m out to destroy WotC; and 5) that I’m in it for the money and my talk about the public good is empty. Some of those critics were clearly just trolling, but not all. Most of you don’t know me, so you have no way to sense my motives. These are all fair concerns, and all I can do is address them here. Believe it or don’t.

I Picked a Fight

No, I didn’t. WotC threatened me. Based on the context of everything I’ve written, let’s summarize the turn of events leading to us to where we are.

  1. I did something that was 100% legal but had the potential to harm WotC;
  2. I carefully crafted that thing to make sure that it didn’t damage WotC’s sales, as it was still necessary to purchase the Sourcebooks in order to play the game;
  3. If I had a broader footprint, what I did had the potential to help WotC’s sales; and then
  4. WotC threw its customary temper tantrum.

As I’ve established, stat blocks as currently written aren’t copyrightable, so I could have copied every single WotC stat block in existence and republished them. In fact, I was asked to do that, which I refused (catching heat in the process from some unappreciative fools). Instead, I released them only as PDFs, and I released only those stat blocks that required the one-stop treatment (i.e., ones with Spellcasting or Innate Spellcasting). This made the game more accessible for people like me, which meant that more people would be willing to play more often, as well as invest in the game. Again, my footprint is too small to be significant, but the point is that I could only help, not hurt.

That said, WotC’s reaction wasn’t thought through at all. I received a mild demand to take down the stat blocks, but based on their history of intimidation, it wasn’t something that could be ignored. It was a short email but somehow managed to make as many factual errors as it had sentences. This is their modus operandi. They see material related to 5th Edition Dungeons & Dragons, they don’t see a copy of the OGL attached, and so they threaten before researching that material.

This is 100% on them. If they had left me alone, I probably wouldn’t have written these posts. If they don’t sue me, there’ll be no lawsuit and no GoFundMe. I just want everyone to be crystal clear about the fact that if they do sue me, I’m prepared to go all in. If no one contributes to the GoFundMe, I still won’t back down.

Taking the Easy Way Out

This project has taken years. I didn’t make photocopies of the Sourcebooks. This was a ton of work, and I’ll never make a dime from selling these OSSBs even if a legal ruling in my favor allows me to do so. There was nothing easy about it.

Legal Manipulation and the Destruction of WotC

I’ve been asked what gives me the right to take down the D&D empire that was built through blood, sweat, tears, a brilliant strategy. Let’s say that WotC, through hard work and intellectual superiority, created and implemented an ingenious business plan to steal money from the elderly’s trust funds, and in doing so built an empire. Would you still be asking that question? Clearly not. If the empire is built on an immoral foundation, there’s absolutely nothing immoral about toppling it.

Of course, WotC isn’t stealing money from the elderly. They aren’t even committing a crime as far as I know. But they’re behaving wrongly and doing so essentially through bullying on a corporate scale, financed with the fortune they made off a patent that should never have been issued. They absolutely need to be placed in check, and the intangible harm they’re doing, which the average person can’t appreciate, needs to be stopped. Also, as I pointed out in part 2, WotC would be doing themselves a favor by abandoning their copyright misuse. A much larger threat looms over their work, and if they don’t get ahead of it, it could potentially “bankrupt” the marketability of 5th edition.

But they won’t, so what happens if this goes to trial and I get a judgment expressly excluding stat blocks from copyrightability. What then? Does WotC go bankrupt? Does the entire industry go bankrupt? No. What happens is this: WotC must stop misusing their copyrights, and once they stop, they get their copyrights back. Their artistic folk will never have to stop doing the creative work they do, no one will lose their job (except perhaps their lawyers and me for spending too much time on this matter; who can’t get behind that?), Adventurer’s League will keep going, and everyone will be happy.

Does anything else happen?

I’m in It for the Money and I’m Full of It

Again, let’s say this goes to trial, and I earn a 100% victory. What do I win? The judge or jury will give me the whopping award of $0.00. That’s zero dollars. For people overseas, that amounts to zero euros and zero yen. For the privilege of earning that cash reward (I won’t take a personal check), I get to invest in the equivalent of as much as $500,000 in billable legal hours (based on Gary Gygax’s atypical experience representing the upper end of costs).

If I’m not doing this for the community and the industry, I’m not sure who I’m doing it for.

Cognitive Dissonance

A recently published article had a quote in it that’s essentially what’s been bouncing around in my head as I wrote these posts. The article is about the origins of D&D, and the premise of Rob Kuntz is that a significant part of the public has mistakenly believed that Gary Gygax was the single focal point for the origins of role-playing games. In making his case, he said:

“Humans do not like to admit they’ve been hornswoggled, lied to, cheated, or fooled.”

Absent any genuine counterarguments to my piece, and in light of the genuine anger some people have expressed towards me online, I suspect this is the basis of the resistance I’ve seen over the years in my conversations of the OGL. People not only assume that no legal challenges must mean there’s nothing to challenge, but also that they couldn’t possibly have been so very wrong about the OGL for so many years. They can be, and they were.

By all means, if you think I’m wrong challenge me, but don’t assume I’m wrong just because you don’t like it. The consequences to the industry and community are too great for any of us to allow our biases or emotions to guide our approach to this topic.

Consideration in the OGL

I want to add a little more depth to my claim that the OGL lacks consideration. As you may recall, consideration is legalese for something of value that passes between the parties to a contract. If homeowner pays painter $3,000 to paint homeowner’s house, then the painter receives $3,000 as consideration, and homeowner receives a paint job as consideration. Without both parties receiving consideration, the contract isn’t legally enforceable.

The OGL lacks consideration. In a nutshell, the OGL creates two classifications of subject matter: the OGC (defined as the “game mechanic”) and the PI (defined by a list of different elements of the game). The OGL claims to license the OGC but not the PI. This is problematic because the OGC doesn’t contain anything in it that’s copyrightable. That is, it’s well-settled in American copyright law that game mechanics aren’t copyrightable, which means that the entire public already “owns” (so to speak) the game rules, so an attempt by the OGL to license OGC fails to provide the public any consideration.

The issue, however, is that the OGL never specifically mentions, “the specific way in which the game rules are expressed.” That’s something that is copyrightable. For example, on page 197 of the Player’s Handbook, WotC provides several paragraphs of text organized by several subheadings describing what happens when a player’s character drops to 0 hit points. Everyone is welcome to express the 5th edition rules for dropping to 0 hit points, but probably not in that particular way (or any way in which is substantially similar to it). So, does the OGC include “the specific expression” within the definition of “game mechanic”?

I don’t think so. First, it’s clear that the listing in PI is an attempt to grab anything that falls under the realm of either trademark or copyright. Moreover, that list contains several vague terms that clearly are meant as “catchalls” to grab anything copyrightable that isn’t expressly listed. On the other hand, the OGC goes on to define what is meant by game mechanic, and the list consists of terms (and synonyms) that are used for the subject matter of patents (methods, procedures, processes and routines), and then qualifies that to exclude any aspect of the game mechanic that falls under the category of the comprehensive list of copyrightable and trademarkable subject matter. Still not convinced? Here’s an exceprt from the 2004 FAQ, which has never been retracted by WotC:

Q: Is Open Game Content limited to just the “game mechanic”?

A: No [but] Wizards, however, rarely releases Open Content that is not just mechanics.

It seems WotC’s intentions have never been to “license” more than something they have no power to license. At the very least, this represents an ambiguity that would be interpreted against WotC.

It’s easily possible that a court would disagree, but that would create a whole host of issues for both WotC and the industry in general (all the fault of WotC). As mentioned in Part 3.5, if the OGL were to contain consideration within it, then the OGL itself represents copyright misuse, without having to look at the SRD or WotC’s other behavior. This means that when WotC intimidated the industry to include the OGL in their products, those other game designers were placed in an impossible position: Get sued by WotC or engage in copyright misuse that prevents them from enforcing their own copyrights.

I’ll never include the OGL in any of my publications.

No More Posts

I don’t plan on a part 5, 6, or 127 for this series, but this is an ongoing conversation. Feel free to comment here or on Twitter.

Part 3.5: A Mild Retraction That Makes Matters Worse for #WotC #DnD #copyright #iplaw #ogl

Some excellent commentary on Part 3 from a reader uncovered an error and a weakness that deserve examination. Neither the error nor the weakness significantly detracts from the overall argument and its strength, but instead bolster the case for copyright misuse and, if the weakness proves to be a true flaw in the argument, heighten the damage done by the Open Gaming License (“OGL”) to the gaming industry.

In case it isn’t clear, Wizards of the Coast (“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.

The Error

Throughout Part 3, the “preamble text” was referenced as part of the OGL. This is incorrect. That text is actually part of the System Reference Document for 5th Edition Dungeons & Dragons (“SRD5”). Therefore, when evaluating the OGL on its own merits, one can’t rely on that “preamble text.”

Mea culpa.

The Weakness

In short, one (of a few) criticisms of the OGL is that it lacks consideration to the alleged licensee, which is something of value that must pass to a party for a contract to be legally enforceable. The basis of this criticism is the assertion that nothing, including the specific expression of the game mechanics, is licensed. Instead, the only subject matter that’s licensed are the game mechanics themselves, but because no one can own game mechanics, the OGL isn’t licensing anything. The assertion that the specific expression of the game mechanics isn’t being licensed is based on the list of elements that are included under Product Identity. That list includes several terms that are vague and can be broadly interpreted as an attempt to cover anything that could conceivably be copyrighted.

All that said, neither “specific expression of the game mechanics” nor “all our copyrights” (or a similar term) is expressly stated, so the chances are nonnegligible (perhaps better than 50%), that a court could find consideration properly stated in the OGL. The contract still fails for lack of a means to accept it, and contains some ambiguity (which generally tips against the favor of the contract’s drafter), but as far as consideration is concerned, the OGL arguably contains it.

Let’s assume this criticism sticks, and the OGL properly states consideration.

The New Interpretation

Without reference to anything else – the SRD5 or WotC’s threatening behavior – the OGL itself contains within it a license for copyrighted subject matter; to-wit: the specific expression of game mechanics. However, recall that Section 1(e) of the OGL defines Product Identity as, among other things, concepts, themes, names, none of which may be copyrighted in theory. It also includes “places, locations, and environments.” What exactly is an environment? The first rule of contractual and statutory interpretation is that if two different words are used, they must mean different things. If locations refer to, for example, specific cities, forests, etc.; and places refers to planes of existence; then all that’s left for the definition of environment are, for example, “a location with mist in it” and “a rocky hillside,” none of which are copyrightable. It also includes “special abilities” and “spells” that, as discussed in earlier posts, contain elements that can’t be copyrighted. Without any caveats such as “to the extent these represent copyrightable subject matter,” the only reasonable interpretation of the OGL is that it includes the complete text for those elements, which extends to noncopyrightable subject matter. Most damning, however, is that “concept” is a synonym for “idea,” and the most fundamental principle of copyright law is that “ideas” can’t be copyrighted. Nevertheless, WotC is claiming ownership of concepts. One cannot assume, without a caveat, that WotC is unambiguoisly limiting itself to an expression, especially in light of the fact that, as a matter of contractual interpretation, “concept” can’t have the same definition as “location,” “storyline,” “character description,” etc.

Thus, if the OGL states consideration in the form of copyrightable expression of game rules, then WotC is attempting to leverage that copyright to prevent the alleged licensee from using public domain material. Whether WotC succeeds in doing so or not, this is the essence of copyright misuse as defined in Assessment Technologies, among others, and it’s inherent to the OGL itself. One doesn’t have to examine the SRD5 or WotC’s behavior to find copyright misuse with respect to the OGL.

The Chilling Effect

Consider what this would mean to a small-time game designer, who may not be using the SRD5 and who may not be sending out illegitimate cease and desist requests. Game designers clearly feel compelled to include the OGL in their work for fear that WotC may sue them, but if they include the OGL in their work, their own copyrights could easily be held unenforceable until they remove it, even assuming no other bad behavior on their part. That’s one hell of a position in which to place game designers, all the result of WotC’s stated position.

Thus, if consideration is properly stated in the OGL, the damage done by the OGL is even worse (or at least more direct) than previously stated.

Note

I’m preparing another post that will serve as a FAQ of sorts based on other commentary. That should go up on Monday morning.

Part 3: The Damage Done by the Otherwise Ineffectual Open Gaming License #DnD #copyright #iplaw #ogl

This is the last in a series of three posts on the copyright misuse of Wizards of the Coast (“WotC”). Much of this post relies on the others for context, so it would be better to read the Copyrightability of Stat Blocks and the Copyrightability of Ability and Spells before reading this one, but it’s not strictly required.

WotC introduced the OGL and the System Reference Document 5.0 (“SRD5”) for the noble cause of telling the public which of the material they published was, in their opinion, protected work (i.e., work only they could publish), and which was public domain (i.e., freely useable by everyone without restriction). This isn’t sarcasm; their stated intent was noble. Sure, they called it a license when it clearly isn’t, but if that were their only sin, we could all overlook that. The idea was to avoid as many unnecessary disputes as possible. That’s helpful. It has since morphed into an oxymoronic attempt to license public domain material and intimidate members of the industry and community in general, who are fearful, ignorant, or unable to finance a defense against a lawsuit. That’s damaging.

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.

Credits

Before I begin, I want to thank those that helped review some or all these documents before I published them. They were instrumental in helping me get the wording to where I wanted it, coming from the perspective of lawyers with IP experience, lawyers without IP experience, and nonlawyers. This was not an easy project to write because I was writing for two different audiences, which is why I needed help from people in both of those audiences. I needed to back up my assertions with solid logic and case law but in a way that was understandable to nonlawyers. Most of these people requested that they not be named, but those listed below didn’t mind.

If you’re one of the people who helped and would like credit, I’ll gladly add you name to the list. I do so only so that you get the credit that you’re due, but there’s no need to put yourself in a bad position with industry professionals and friends. Either way, thank you.

Jason Dandy
Donald Dechert
Mike McMullan
Katey Springle Lempka

I also want to thank those that took me to task on various social media platforms. Even though their statements were public, I won’t mention them by name unless they request I do. One friend was particularly instrumental in keeping me emotionally grounded. WotC’s legal department has infuriated me, but on the few occasions that I’ve met and gamed with the creative minds at WotC, they’ve been fantastic. They’re good people, and I’m glad my friend kept me from losing sight of that. Others provided critical legal analysis, resulting in edits prior to publication of parts 2 and 3. My decision to break up the first discussion into two parts (1 and 2) was an unintentionally brilliant strategy, as it gave me the time to process criticisms and strengthen my arguments in part 2. Thanks to all of you.

Some More Law

There are just a few legal concepts relating to contracts that need to be discussed quickly before we can address the Open-Gaming License (“OGL”) and WotC’s copyright misuse. These aren’t difficult and in fact may be intuitive to many. Although contract law varies from state to state, these very basic rules are at least in part universal, applying to all fifty of the United States and probably much of the world.

A Contract is a Legally Enforceable Agreement

Two parties can agree to a lot of things, but such an agreement is a “contract” only if the law deems it enforceable. For example, if a mob boss contracts a hitman to murder someone, and the hitman backs out on the deal, the mob boss couldn’t take the hitman to court and ask the court to force the hitman to go through with the murder. Such a contract is void as a matter of public policy because it is a contract to do an illegal thing, in this case a criminal act.

Offer and Acceptance

In order to be bound to a contract, one party must make an offer, and the other party or parties must accept it. If a party makes an offer, but the other party agrees to accept the offer with certain conditions, then acceptance hasn’t actually occurred. Instead, this is deemed as a counteroffer, which must then be accepted by the first party. A long series of offers and counteroffers is the essence of negotiation.

All Contracts Require Consideration

“Consideration” is defined as something of value passing between the parties. If a painter agrees to paint a homeowner’s house, that’s not enforceable because the painter isn’t getting anything out of the deal. If, on the other hand, a painter agrees to paint a homeowner’s house in exchange for $3,000.00, then the agreement is enforceable as a contract. The homeowner receives consideration in the form of a painted house, and the painter receives consideration in the form of a payment of $3,000.00. Both parties get something of value out of the deal.

License

A license is a contract in which one party (“licensor”) grants another party (“licensee”) permission to do something or use some subject matter (e.g., the right to live in an apartment, the right to hold a rally on another’s property, the right to claim the licensor endorses the licensee’s products or services). The licensor must actually hold the rights to that subject matter, and must have the authority to grant licenses to other people (or entities, such as corporations).

Ambiguity

Any ambiguity in a contract is interpreted against the drafter of that contract. Some attorneys insist that this rule doesn’t apply where all parties are represented by attorneys.

Tying These Together

Applying what we have in the definitions above, if a licensee already has the right to that subject matter, then there’s no consideration passing to the licensee, so the license isn’t a license at all, but rather an unenforceable agreement. For example, if two people own a piece of land and each have the rights to occupy it, one of the owners can’t rent the land to the other owner. The other owner already has those rights.

Game Rules

As a reminder, game mechanics are not copyrightable. In part, the reason for this is that the game designers didn’t really create them either. The mechanics have probably been done before in prior games, but even if they’re brand new, they’re often just a collection of mathematical equations. Math describes the way the universe acts, and no one can (or should) own that. I reiterate this point yet again in case some are acting under the misguided notion that it would be “immoral” to copy game rules. It isn’t. It’s immoral to claim ownership over clearly unowned subject matter, especially knowing full well that a large group of people will believe it and self-censor themselves, thus stifling creativity. The public must be free to find a way to express the rules of any game.

What Exactly is Licensed by the OGL?

Open Gaming Content is the content WotC says the public can use, and Product Identity is the content WotC claims the public can’t, but Open Gaming Content can’t be copyrighted because it’s already in the public domain. By its own terms, the 5th edition Dungeons & Dragons OGL (“OGL”) grants to gamers something that the gamers already have the right to use. Thus, no consideration passes to the gamers, and the OGL is a legally null document.

The OGL defines two gaming elements: The “Open Game Content” and the “Product Identity.” Open Game Content (“OGC”) is defined in paragraph 1(d) as

“the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity and is an enhancement over the prior art and any additional content clearly identified as Open Game Content by the Contributor, and means any work covered by this License, including translations and derivative works under copyright law, but specifically excludes Product Identity.”

Next is the Product Identity (“PI”). In summary, paragraph 1(e) gives a comprehensive list of everything relevant to the RPG that could possibly be protected under copyright or trademark law and defines that as PI. For the sake of argument, we’ll assume that, except for game mechanics or items specifically excepted below, anything WotC has historically claimed to be copyrighted or trademarked material is indeed protected.

Let’s break down OGC first. It includes the game rules (a.k.a., “game mechanics”), which are not copyrightable, so everyone may distribute them without restriction. The definition goes on to point out that if any game rules are copyrightable, then they’re included in Product Identity. Technically, this is correct, but there are no game rules in PI (as a matter of law), so nothing is transferred into that pool of material. The talk about copyright law in this term is without substance. This means that the OGC is subject matter a gamer may use without WotC’s permission, and thus doesn’t require a license. Compare that to PI, which is everything gamers can’t use unless they have a license from WotC, and we get to the crux of the problem. Turning to paragraph 4:

“Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, nonexclusive license with the exact terms of this License to Use, the Open Game Content.”

In plain English, “We’re licensing to you game mechanics, which we have no right to prevent you from using.” Now paragraph 7:

“You agree not to Use any Product Identity, including as an indication as to compatibility, except as expressly licensed in another, independent Agreement with the owner of each element of that Product Identity.”

In plain English, “We’re not licensing anything that we could theoretically license to you, so you may not use Product Identity. In fact, you can’t even say that your original work is compatible with our game system.”

Ergo, WotC is licensing nothing with the OGL. They claim to license something they have no right to license (OGC), and anything that requires such a license is explicitly excluded (PI). Moreover, they don’t even want third parties to mention their game system. Once again, in plain English: “We’re licensing to you what we have no right to claim as ours, and not licensing you anything we can claim as ours, and are thus giving you nothing.” Even if a third party signed this agreement (probably no one has; there’s no signature line), or if a court bound the third party to its terms because it was printed in a book as instructed in paragraph 10 (“You MUST include a copy of this License with every copy of the Open Game Content You Distribute.”), there’s no consideration, so there’s no legally enforceable agreement.

Ambiguity

At first glance, there appears to be a back door to using copyrightable material. The preamble of the OGL lists items designated as PI, and then states the following:

“All of the rest of the SRD5 is Open Game Content as described in Section 1(d) of the License.”

The SRD5 is the collection of material that WotC is specifically claiming to license. It includes, among many other things, descriptions of a fraction of the spells, races, and character classes, as well as monster stat blocks, that are included elsewhere in WotC publications. Use of the phrase, “the rest,” necessarily means that the SRD5 includes at least PI within it.

The quoted preamble text seems to allow gamers to distribute all that content, but that’s not true. Returning to the definition of OGC above, an alleged licensee may use OGC

“‘Open Game Content’ means the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity . . . .”

(emphasis added). So, if the SRD5 contains copyrightable material (that is, the PI that they admit is in the SRD5), such as the parts of spell descriptions that go beyond mere mechanics, then that copyrightable material is not useable even though it appears in the SRD5. In fact, a reasonable interpretation of this apparent ambiguity is that the one thing WotC could possibly be licensing with this material – the specific means of expressing their game rules – is also not being licensed. This means that, despite the existence of the SRD5, and a strong implication that all SRD5 material may be copied freely, if an alleged licensee copies SRD5 material directly, there’s a breach of license, and WotC holds a potential lawsuit in their back pocket in case they ever decide to sue for unrelated reasons.

This is no small matter. The license’s ambiguity leaves the third party uncertain as to whether WotC has reserved the right to sue for reproduction of any SRD5 material, but they’re encouraging the third party to reproduce it. Assuming WotC genuinely believes the OGL is enforceable, this appears to be a setup. It appears that they’re using ambiguity to encourage third parties to use copyrightable material, only to then use the quoted preamble text to justify claims of infringement or punish other legal behavior they simply don’t like (such as publication of one-stop stat blocks, henceforth “OSSBs”). If WotC realizes that this isn’t an enforceable agreement, then at the very least, the ambiguity is used to confuse and intimidate third parties into not republishing material, self-censoring any use of uncopyrightable material just to avoid a costly lawsuit they’re uncertain they can win. Part 2 cautioned of the dangers of a copyright holder having grounds to sue arising solely from mere use of their product. It appears that WotC is seeking exactly that. (What’s actually going on in WotC’s head is unknown to the general public, but whether or not they realize they’re creating a setup, they’re in fact attempting to do so, and that’s all that’s needed to create a problem regardless of whether they legitimately believe the OGL is a license or not.)

Either way, this is copyright misuse. They’re leveraging copyrightable material to restrict the use of uncopyrightable material. WotC is a bad actor, and until their misuse discontinues, their copyrights in the Monster Manual, Volo’s Guide to Monsters, Tales of the Yawning Portal, Mordenkainen’s Tome of Foes, Guildmaster’s Guide to Ravnica, Ghosts of Saltmarsh, Dragon Heist, Dungeon of the Mad Mage, Tomb of Annihilation, and perhaps others (the “Sourcebooks”) should be deemed unenforceable until they stop the misuse.

Less Than Useless

Let’s revisit the definition of OGC: “the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity.” Claiming that at least some methods, procedures, processes, and routines (all public domain by definition) could embody PI indicates that WotC has every intention of including public domain material in the PI. Elsewhere in the preamble, WotC specifically designated the following creatures as PI: beholder, gauth, carrion crawler, tanar’ri, baatezu, displacer beast, githyanki, githzerai, mind flayer, illithid, umber hulk, yuan-ti. (The list is much longer than this.) Many have taken this to mean that WotC specifically forbids by contract even the mere mention those creatures, and WotC has cultivated this interpretation. Most likely, WotC realizes they can’t forbid mention of these terms, but instead can forbid reproduction of their creative descriptions of these creatures, places, and items.

Copyright does not permit protection of a single word, and it would be exceptionally difficult to copyright two words, such as “displacer beast.” So, if enforced as a contract, the OGL would place an alleged licensee in a worse position than if never having entered into it. The alleged licensee gains nothing but must give up something in the public domain (i.e., a few single words otherwise in public domain). Sure enough, this appears to be another set up. If third parties change the name of the githyanki to “githkin” but keep the backstory, etc. the same, that third party would still be liable for copyright infringement. Changing the name was unnecessary; it’s the backstory that’s arguably creative. To the unsophisticated, the OGL may seem to be restricting only the name, in which case WotC holds another lawsuit in its back pocket if it doesn’t like something a third party has done that’s otherwise legal. (This has played out many times with, for example, people referring to Warforged as Forgekin and Drow as dark elves, but otherwise publishing those species as written.) This list also appears to be another attempt to snatch ideas from the public domain. The Gray Waste of Hades is no different than the basic concept of Hades from Greek mythology (though some storylines within are possibly copyrightable), but its inclusion in the OGL’s list seems like a vague threat that a third party’s inclusion of Hades in their gaming material will be watched carefully or even litigated. That’s absurd.

Opt Out?

It seems that one solution is not to be a party to the OGL. Unfortunately, if the OGL were deemed enforceable, every player of the game likely already is. Under paragraph 3, acceptance of the OGL requires nothing more than “Using the Open Game Content.” That is, based on paragraph 1(g) (defining use), if a player writes down the game mechanic on a piece of paper (“copy”), or even simply plays the game (“use”), the player has agreed to abide by the OGL. This is true even if the player has never heard of the OGL, Wizards of the Coast, or Dungeons & Dragons. It’s that broad a term, and this is supposedly a valid form of acceptance of the license only because Wizards claims it is. No one has ever agreed to that mechanism in the first place, so it’s likely that everyone has allegedly accepted the OGL without realizing it. Again, that’s absurd. (For those familiar with software licenses, this appears to be WotC’s attempt at a “shrink wrap” license. The legality of those licenses is technically unsettled, but the OGL’s attempt here is even weaker than software licenses because of how broadly a reasonable reader would have to interpret the term, “use.”)

Paragraph 14 is a reformation clause, stating in boilerplate language that “[i]f any provision of this License is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable.” However, it seems that the only way to make sense of this tangled mess would be for a court to write a completely new contract. Even if the court could somehow strike bad terms from the OGL, it wouldn’t change the purpose of the OGL, which was, at best to misuse copyright, and at worst set up gamers for infringement claims. However, even reasonable rewrites would solidify the unenforceability of the OGL. Revisiting the text discussed earlier: “All of the rest of the SRD5 is Open Game Content as described in Section 1(d) of the License.” This text makes itself subservient to Section 1(d), expressly pointing the reader to Section 1(d) for clarification of what parts of the SRD5 are considered OGC. Remember that Section 1(d) states that nothing copyrightable is being licensed. If the tension between the two terms is interpreted in the only reasonable way available, the result is an unenforceable contract with no consideration, and because WotC drafted this contract, a court would be inclined to interpret it in a way against WotC’s interests.

The OGL is a brazen statement by WotC that they don’t want you using material that’s in the public domain, and they give you nothing in return after dictating you not use that material whether you agree or not.

A Pattern of Bad Behavior

In assessing whether WotC has engaged in copyright misuse, the courts will have a difficult time ignoring the fact that this is part of a pattern of misuse in which WotC has engaged for at least 15 years. This doesn’t appear to be an accident.

Third edition Dungeons and Dragons also had an OGL. There’s no need to go through an identical analysis of it. It’s important to note that, more or less, the broad strokes were the same, and that the 3rd edition OGL demonstrates that this bad behavior dates back to its publication in 2000. Between 2008 and 2016 WotC published the legally legitimate Gaming System License for 4th edition Dungeons and Dragons, but the 3rd Edition OGL was still enforced.

Why Would WotC Expose Itself Like This?

This is a very bold move by WotC. Why would they do such a thing? The “Hand Formula” is a legal concept referring to the fact that deterrence occurs only where punishment is both sure and severe. That is, if jaywalking carries a 20-year prison sentence, but a jaywalker knows they’ll never get caught, the sentence doesn’t scare them. On the other hand, if the punishment for stealing $1,000,000 is nothing more than getting yelled at for 30 seconds, the thief won’t think twice of stealing the money. A criminal must know that the punishment will be bad, but also that they’ll likely have to face that punishment.

Let’s examine the potential plaintiffs against WotC. The only entities that could be harmed directly by this misuse are game designers and “little guys” (like me). Game designers won’t sue because, even if they win, they may lose. Depending on their own circumstances, they may be exposed to the same claims from others. On the other hand, both game designers and the little guys have no desire to spend up to $500,000.00 to sue a company backed by Hasbro just to win the right to create a PDF with limited sale potential or just to post to a blog. No one in a legal position to sue has the incentive or funds to do so, WotC knows that, and this has been confirmed over the 19 years that an OGL has existed in one form or another.

Why is This Such a Big Deal?

If the OGL isn’t enforceable, WotC couldn’t really sue anyone, so there no harm to it, right?

Wrong. Belief that this license is enforceable gives WotC control over the believer, who voluntarily agrees to do what WotC says and gets nothing in return. A cease and desist letter from a company ultimately backed by Hasbro will terrify the average person, which is precisely why Lasercomb didn’t require that a defendant be a party to a license in order to raise the claim of copyright misuse. The result is self-censorship and a lost opportunity for further creativity. It’s especially frustrating that this community allows this to happen. When it comes up in conversation, many say they’re upset that the copyright monopoly has grown too strong, yet they’re encouraging it to grow even stronger, at least with respect to the role-playing game industry, by voluntarily ceding to WotC public domain material. “Using” the OGL and SRD5 by agreeing to publish and abide by it in other games feeds a culture of ignorance and stifles creativity. It’s a shame anyone does that.

The loss of creativity is hard to see, because it’s impossible to quantify that loss. With such an ethereal concept, how does one prove that something would have been there if not for someone else’s actions? That’s why the doctrines of copyright misuse, patent misuse, and antitrust rules exist. They’re designed to assure no such losses, even if several owners don’t get as much value from their works. This is the reason the public good always outweighs the rights of the copyright holder; those rights exist solely to serve the public good.

Remember, I’m not saying nothing is copyrightable in the various Dungeons & Dragons books published by WotC. If that were true, there’d be no copyright to misuse. WotC would just be engaged in bad behavior that we should ignore. Rather, I’m saying that WotC has a history of leveraging their legitimate copyrights to threaten those that that republish material that is not copyrightable, inappropriately claiming ownership of that uncopyrightable material.

How Will This Play Out for All Game Designers?

If WotC is held to be committing copyright misuse based on the OGL, then the period of copyright misuse could stretch back as far as 19 years to the creation of the 3rd edition OGL. Any copyrights being misused will be unenforceable during that entire period. Moreover, the copyrights won’t be enforceable until the misuse ends. More importantly, game designers would be forced to allow republication of their stat blocks that aren’t copyrightable, which means certain types of crunch books won’t be nearly as profitable.

But this would be good for the gaming community.

By affirming that clearly uncopyrightable material can’t be withheld through the misuse of valid copyrights, the courts will force game designers to focus on what they do best: creative work. Most people with decent math skills can design a balanced game system if they’re willing and able to put in the time. Those that say otherwise are lying to protect their position in the industry. What’s hard for most people to do is to create a game world filled with people and places, entwined in complex storylines, and clearly expressed in an artistic, fun, and interesting way. Game designers will focus on, and as a result produce more, unique characters, campaign settings, and adventures. Ironically, with 5th Edition D&D, WotC has already shifted their focus in that direction, which has apparently worked out well for them because that’s what most gamers want. However, their continued insistence on threatening those who republish uncopyrightable material deserves condemnation.

WotC’s copyright misuse has spread through the industry like a poison. Even professional game designers have toed the line. They’re working with the hand they’ve been dealt, and the profit margin on games is too low for even an established company to risk a lawsuit. Other companies have created their own licenses, with some having received criticism for their efforts. Even worse, it’s extended beyond the gaming industry. When Old Spice created a harmless, whimsical Gentleman class, they received a request they include the OGL with it, which they eventually did. WotC has extended its stranglehold on the gaming industry beyond the gaming industry itself. Furthermore, WotC’s misuse could serve as inspiration to other companies to do the same in other industries, so this is even bigger than gaming.

I had a Twitter conversation recently that was helpful. My friend pointed out “Isn’t it good for RPG companies to not have fans be able to repost all their stuff? I feel like this doesn’t help the industry at all…. I am just a fan of [RPG] companies. It’s a hard business. I am all for them protecting their stuff in such a rough market.” I responded, “I agree, but the key is ‘companies,’ as opposed to ‘company.’ WotC hasn’t hurt my feelings [much]; they’ve hurt the community and the industry.” Putting aside the public interest for a moment, the industry is larger than just one company. All game designers should have an equal opportunity to carve out their own space, but WotC is preventing the industry from realizing that potential.

Will this significantly harm WotC individually? No, and WotC admits that. With the OGL and SRD5, WotC proports to give away far more material than the OSSB project does. For example, WotC gives away the goblin stat block. The OSSB project as originally written didn’t do that. WotC also gives away the creative text for the Fly spell. The OSSB project never will simply for reasons of brevity. The problem rests in the fact that WotC demands that it retain sole publication rights to material that they can’t claim, but the point is that, by WotC’s own admission, losing control of the goblin stat block or even legitimately creative text won’t hurt their market considerably. They (claim to) voluntarily do so. Moreover, their basic rules give away actual copyrightable material that appears in the Player’s Handbook, allowing players to play a full version of the game having bought absolutely nothing from WotC, yet WotC’s market for 5th edition seems to be enhanced by that, not diminished. Other RPG companies do a similar thing, even tiny ones. It’s clear from these implicit admissions that any losses suffered by WotC from the OSSB project couldn’t possibly outweigh the public’s losses (i.e., stifled creativity) if WotC’s copyright misuse goes unchecked, but also can enhance their market.

Of course, this doesn’t mean that a third party should be permitted to take bits and pieces of copyrightable material, such as the specific text of the elf racial write up in the basic rules, and publish it freely just because WotC does. WotC needs to maintain control over its intellectual property so that it can still withhold enough material to protect the marketability of its products. Multiple third parties publishing small pieces eventually adds up to the whole. Also, as discussed, the OSSB project will likely force WotC and other game designers to adapt how they produce bestiaries, and maybe how they design games. However, the OSSB isn’t taking any intellectual property that WotC owns except maybe a small amount that is inseparable from the mechanics, and WotC admits that it can adapt to that; it’s already doing so quite successfully. Their inevitable pleas for sympathy regarding my alleged immoral assault on their market share will ring hollow. In any event, it’s WotC’s own fault for being too arrogant and too greedy for too long. If they had left the OSSB project alone, parts 1 and 2 would probably never have been written, and perhaps part 3 would never have been finished and published. Moreover, the only possible impact the OSSB project could have had was a positive one. Considering the OSSB project’s footprint in the community prior to these posts, it’s unlikely even that would have been significant.

With WotC being told to stop misusing their copyrights, the damage they’ve inflicted will slowly fade away, and future damage won’t materialize. It may even save WotC’s 5th edition market from legitimate threats to their intellectual property.

This Can Also Help WotC Avoid Greater Threats

Whether the OSSB project results in litigation or not, WotC’s copyright misuse will become an issue in the near future. There’s a certain website that I won’t mention, because I don’t want them to gain any traffic. They seem to have every single RPG sourcebook in PDF format – including WotC’s – for free download. My understanding is that there are at least two other such websites, as well as some other well-known entities that are involved in alleged infringement on smaller levels. For anyone with the slightest respect for copyright law, stockpiling that many sourcebooks for that many RPGs represents a horrendous and shameless theft of RPG properties that may even be criminal. Eventually, WotC will figure out they exist, and when they sue for copyright infringement, they’ll lose. As in Lasercomb, even though this site is run by “bad guys” who are clearly infringing valid copyrights, WotC’s copyright misuse will prevent WotC from being able to enforce those copyrights. If WotC’s attorneys drop their arrogance and do as I suggest quickly, maybe they’ll be able to recover some damages from the website. Sadly, I don’t think that’s in the cards, which would be disastrous for them. Once the website wins, everyone will flock there, immediately download the PDFs before WotC can change their policies, and no one will be liable for that infringement. This could potentially “bankrupt” (so to speak) the marketability of 5th edition, causing a need to immediately publish a 6th edition far ahead of schedule. It’s critical that WotC not waste its time quibbling with me, and instead right the ship and beat these entities to the punch.

Conclusion

Since I returned to the game in 2005 after a 24-year absence, I’ve been a WotC apologist. I briefly ran a gaming convention and organized (with others) a large gaming club in the Washington, DC area. At one point, I was personally organizing events in six different gaming stores during every weekend of the month and introducing new players to the game weekly. I’m directly responsible for a relatively tiny but non-negligible number of sales of their products, having brought hundreds of new players to the game. I’ve consistently been on WotC’s side, but the OGL has always given me pause. Most of the material in this third blog post has been on my hard drive for over a decade as I’ve mulled over whether to publish it, knowing that WotC, a company that’s been a part of my life for quite a while, would be harmed by it. Some of the few people that knew this post existed as a draft have begged me to finish and publish it, but I could never bring myself to do it.

Part of the reason is that WotC was producing material that I loved, which I purchased like it was a necessity of life. The other part is that, with one exception, I’ve never met a person at WotC I didn’t like. They all have different personalities, but there’s a common thread of approachability and kindness. They’re very down to Earth and talented. I was at Winter Fantasy a few years back, and Mike Mearls, Jeremy Crawford, Greg Bilsland, and a friend of mine were getting ready to play the brand-new game, Lords of Waterdeep. Jeremy just grabbed me from the crowd and asked me if I wanted to play. I joined in, and, needless to say, got destroyed by four professional game designers, three of whom (I think) were involved in its playtesting. I was treated like an old friend for the whole game. These are good folks undeserving of ire. Their legal department, on the other hand, is a problem, and perhaps WotC’s owners are aware of that and turn a blind eye. I don’t know. All I know is that the entity known as “Wizards of the Coast, LLC” is responsible for bad behavior.

Considering that only a single attorney among many nationwide has approached me with a significant challenge to even a portion of my argument, I suspect that WotC’s attorneys understood what they were doing was copyright misuse. They must also have known that the day would eventually come when they’d poke the wrong bear. The smart thing to do would be to admit their error, apologize to the public, right the ship, and get ahead of a much more serious threat than I could ever be. The question is whether their arrogance and stubbornness will outweigh their intelligence. The ball is in their court, and I hope by now that both they and you realize this is a lot bigger than the ability to publish a few stat blocks.

WotC has threatened me, and I expect them to do so again, meaning I, and anyone interested in the OSSBs, and many others in other contexts, have suffered tangible harm. The question now is what I’m going to do about it. I have several options:

  1. Walk away. Don’t republish and instead allow WotC to continue their practices. Never once have I considered this possibility.
  2. Republish the OSSBs as they were originally intended to be published. That is, publish only those stat blocks that needed the one-stop treatment, providing the mechanics for spells that the monsters could cast, innately or otherwise. This was all the project was ever intended to be, and because it made the game more accessible, it’s impact on the game could only be a net positive.
  3. Republish the OSSBs but include all WotC stat blocks, including an Access database with all that data within it so that anyone can create stat blocks as they see fit (as well as verify my math from part 2). Such publication is legal but doing so in a way that hurts WotC’s sales would be just deserts for a company that responded to my legal behavior with an arrogant threat.
  4. Sue WotC. Two of the five federal appellate courts that have recognized copyright misuse as a defense also allow it as an affirmative cause of action. At least one person online claimed that I had an obligation to incur as much as $500,000 in billable legal hours because otherwise I was a “cop out.” While that accusation is unfair, it would fix the problem once and for all, and I’m already getting some help from experienced litigators in that regard.

The following paragraph has been rewritten multiple times over for each of those options except the first one. I wasn’t sure how I wanted to proceed, so I was prepared in any of these scenarios.

I’m going with option #2. I’m republishing the one-stop stat blocks as they were originally intended: An expansion of a subset of the stat blocks designed solely to make the game more accessible to certain DMs. I’m choosing this over the other options because my intent has always been to help all parties involved, not hurt any of them, and that’s what option #2 will do. I’m not seeking revenge or some notion of “justice”; I just want to publish public domain material that will help the community by filling a gap that, for some odd reason, WotC won’t fill themselves. If WotC’s legal department arrogantly and stupidly wants to sue me, that’s their call. They know my arguments, so they know what they’re getting into, and if they shoot themselves in the feet, that’s on them. I don’t need to make an example of them, but nothing will change unless I’m serious about the public’s rights, so I’m fully prepared to make these arguments in court (as well as arguments for cancellation of two of their trademarks for non-enforcement), and will scorch the Earth on which they stand if forced to do so. This is a rare opportunity for the courts to correct a problem in the industry, and it would have positive effects on other industries as well. I have a feeling that the court will jump at the chance to rule in my favor. However, there’s no pot of gold at the end of this rainbow. If I win, I won’t even see a $20 judgment, which is why no one ever pursues such a case. Accordingly, I’ve set up a GoFundMe campaign to finance the process. It’s still not in any search engines, not even GoFundMe’s search routine itself, so you can’t find it unless I point you to it or you take a remarkably good guess. If WotC sues me***, I’ll make the GoFundMe visible, place a litigator on retainer to monitor my legal work (I haven’t litigated in a while) or actually do the work (depending on how much I raise), and then switch to option #3, legally republishing all WotC stat blocks and the database. It shouldn’t have to come to this, but that’s not my call.

As expansive an industry as gaming is, it could be a whole lot better, and it’s WotC’s fault that it isn’t.

Thank you for taking the time to read and criticize these posts. I’m making some changes to the OSSBs that have nothing to do with legal issues. Once they’re ready, I’ll publish them as a separate blog post. This should give WotC plenty of time to decide if and how they want to respond.

*** If you’re interested in helping with any lawsuit that may occur, please share your negative interactions with WotC via email. This should include threats of any sort from WotC for publication of any of their work, though most likely only threats related to 3rd and 5th edition Dungeons & Dragons will be relevant. Also consider contributing to my GoFundMe to finance the suit, which I will publish if and when needed. Intellectual property-based litigation can easily carry a six-figure price tag. My own work will mitigate those costs to a large extent, but I’d prefer to retain litigation counsel to assist. You all know what they say about an attorney who represents himself.

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.

Part 1: Copyrightability of #RPG Stat Blocks #DnD #copyright #iplaw

I received an email from Wizards of the Coast (“WotC”) demanding that I take down my one-stop stat blocks. Unsurprisingly, the email didn’t provide an actual argument, but it raises some important issues as to what’s copyrightable and what isn’t. WotC has a history of taking advantage of gamers’ ignorance of contract and intellectual property law and lack of wealth when making similar demands, thus harming the gaming community and industry, so it’s time those issues are addressed. Most of the following arguments apply to any role-playing game produced by any game designer.

This is the first of three blog posts that I’m going to put out as quickly as possible. They’re entitled:

    1. Copyrightability of Stat Blocks
    2. Copyrightability of Spell Descriptions
    3. The Damage Done to the Gaming Community and Industry by the Otherwise Ineffectual Open Gaming License (OGL)

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 WotC’s and 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.

First, Some Sympathy

Most of you aren’t going to base your decisions to publish stat blocks on what I write here. You shouldn’t, because whether a game designer can validly claim copyright infringement of a stat block depends on exactly how you word your stat blocks and spell descriptions. Even if you do so without infringing, it’s still scary and expensive to face a lawsuit. However, I’m willing to take that risk so that we’ll have a definitive answer in the not-so-distant future. I’ve always been supportive of this community and industry. In fact, WotC owes a lot of sales directly from the work I’ve done with organized play and running my convention back in 2010 and 2011. I’ve supported and defended them many times, making their threat a questionable tactic. It’s time to put their demands in the proper light.

Stat blocks are difficult to copyright, and I have yet to see one that is, but before that can be addressed, there are a few legal concepts that must be discussed. Legal terms of art will appear in quotation marks that, in the interests of space, I may or may not define.

Functional v. Creative

Shadow of the Demon Lord is a fantastic game that, in my opinion, has an interesting initiative system. As much as I like it, and as much as we all may think of it as “creative” colloquially speaking, in the context of intellectual property law, it’s not. Because the initiative system a “formula” or “process,” it’s considered “functional,” protectable in theory only under patent law. The initiative system would almost certainly not be eligible for a patent, which means that third parties should feel free to adapt that to any of their games. If it’s the inspiration for doing so, the third party may want to give credit but is not legally required to do so, and should not feel the slightest bit ashamed to incorporate it in those games. No one can own that system, and more importantly, no one should own it. That would be bad for the gaming community in particular and society as a whole.

On the other hand, some material is considered “creative,” meaning that it’s an original idea expressed by the author. To earn a copyright, creative work must not only be original, but it must have a “modicum of creativity” (i.e., a minimum level). A stick figure is creative but not nearly creative enough to rise to the level of copyrightability. That said, the requirement for originality is quite low, and there’s no strict line drawn by the courts. Each case is handled on a case-by-case basis.

Copyright Holders v. the Public Interest

The purpose of copyrights, patents, and trademarks is to serve the general public. The fact that we grant these “limited monopolies” isn’t because the law is rewarding the artists, inventors, and entrepreneurs for a job well done; it’s because by doing so the law serves the public. By placing creators in a position to profit off of their works, limited monopolies provide an incentive for creating those works, assuring the public that they’ll have access to a wealth of art (copyright) and increasingly improving technology (patents), as well as allow them to quickly and reliably identify the products and services of companies they trust (trademark). The important point is that grant of limited monopolies is a mechanism, not a goal; the means to an end. Accordingly, when enforcing the intellectual property monopoly power comes in conflict with the public good, the public good always wins.

“Sweat of the Brow”

In 1991, the Supreme Court shot down the notion that a collection of uncopyrightable material somehow transforms into a copyrighted work. For example, if an author compiles a spreadsheet of the mass, size, and distance of various planets and stars in the known universe, that collection isn’t copyrightable because none of those individual pieces of data are copyrightable. They can’t be copyrighted because they’re not creative; they didn’t originate from the author. The author of the spreadsheet can’t report Jupiter’s mass as something it isn’t. Doing so would render the spreadsheet factually inaccurate and thus useless. Copyright is about choosing one thing over many other options. Without having the opportunity to choose anything else, one can’t say that it was original, copyrightable work. Choice is always key.

Also of importance is the fact that those data are independent of each other. If the spreadsheet left out the mass of Jupiter, a reader would still know Jupiter’s size and distance from Earth. While nice to know, Jupiter’s mass isn’t required to understand its size and distance from Earth. Similarly, a phone book isn’t copyrightable because phone numbers are also independent of each other. A reader doesn’t need to know one person’s phone number to properly interpret another person’s phone number. Each phone number stands on its own.

This may seem unfair to someone who’s worked hard to collect and organize a database or phone book, but as previously stated, the purpose of copyright is to serve the public, not to reward the author. The reward is just a means to achieve that end. So, no matter how much work it took to create a collection, if each individual unit of the collection is not copyrightable and independent from the others, then the collection is not copyrightable.

Telling a Story

You may have detected a tension. Collections of uncopyrightable elements are not copyrightable. However, aren’t copyrightable sentences merely a collection of uncopyrightable single words? If the sentence isn’t copyrightable, then aren’t paragraphs merely a collection of uncopyrightable sentences? Aren’t single musical notes uncopyrightable, but stringing them together is a copyrightable piece of music? What’s the difference between these scenarios and that of phone numbers or stat blocks?

For a stat block to be copyrightable, it must include something beyond mere game mechanics, such as an expression of character backstory, biology, culture, ecology, or personality, and that expression must not come from mythology or literature, because that material is in the “public domain” (i.e., freely useable by everyone). So why isn’t the collection of stat blocks copyrightable (e.g., the stat blocks of the Monster Manual as a whole) just like a collection of words or musical notes? Because, for the most part, the stat blocks don’t tell a collective story. Placing a series of words together can form a coherent thought, so a written sentence is a “tangible expression” of an idea. The same can be said with a song, which represents a coherent musical theme. On the other hand, stat blocks remain independent of one another even if they appear within the same book. Just like one person’s phone number in a phone book tells the reader nothing about someone else’s phone number in that same book, a dragon’s stat block tells the reader nothing about a vampire’s stat block. If the reader truly couldn’t use the dragon’s stat block without also referencing the vampire’s stat block (and vice versa), then each of those stat blocks would be analogous to words forming a complete sentence, and the reader would have to perform the copyrightability analysis on both of them at the same time. Instead, WotC’s dragon stat block is self-contained, showing the reader exactly how it fits in the game system, so it’s copyrightability should be addressed individually without respect to any other stat block. Each stat block stands on its own.

Game Rules

Game rules aren’t copyrightable, so in the context of the prior discussion, game rules can be considered “facts.” On the other hand, the specific expression of a game rule can be copyrighted if it is sufficiently creative. There’s no clear test for whether a work is sufficiently creative. For example, it’s not creative to call a spell “Fly” because it allows a character to fly, but the paragraphs representing a complex discussion of flying rules could be copyrighted. Moreover, if there’s a discussion of how a spellcaster must act in order to cast the spell (e.g., somatic gestures, specific words that must be said aloud), or in how the magic manifests itself in sight or sound (e.g., “magic runes appear in the air before you”), then those elements of flavorful description (a.k.a., fluff) could be deemed creative as specifically expressed. If copied word for word, or even if it’s not exact but is “substantially similar,” there could be copyright infringement of the specific expression (provided the statements aren’t so simple as to prevent any other reasonable means to express the same idea).

Single Words

Single words aren’t copyrightable, as no single word, however fanciful (i.e., bizarre, made up), rises to the minimum level of creativity necessary to warrant protection. If a single word were copyrightable, then it would be removed from the native language. Once each word was copyrighted, no one would be permitted to say anything to anyone. This is why answering the question “Is it creative?” is insufficient. One must then ask, “But is it creative enough?”

Trademark protects single words, but that’s reasonable because the nature of the protection is different. Trademark doesn’t forbid using those words, but specifically from using them in a way that confuses the public as to the source of goods and services. For example, “Dungeons & Dragons” is a registered trademark of WotC. Writing out that phrase here isn’t infringement. Besides this post being commentary falling under fair use (q.v.), it’s clear from context that its use isn’t meant to suggest that WotC is endorsing this post. If the viewer, listener, or reader is fully aware that WotC doesn’t endorse a use of its trademark, then a third party may reference “Dungeons & Dragons” even for commercial purposes (see, e.g., beer commercials that ridicule their competitors). Printing the standard disclaimer helps prevent such confusion (i.e., “Dungeons & Dragons is a registered trademark of Wizards of the Coast.”). If using their artistic logos, it’s much harder to claim the public wouldn’t be confused, so they shouldn’t be used on third-party work without permission.

Fantasy Themes

“Fantasy themes” (defined here as characters, creatures, stories, or settings that appear in literature, folklore, or mythology) aren’t copyrightable. Some of them are so old that they predate the concept of copyright, but those that don’t may have expired. So, the expression of a dwarf that mirrors the dwarves of Norse mythology isn’t copyrightable. It’s so old that it must be in the public domain. In copyright terms, the traits and abilities of mythological dwarves are sometimes called “stock,” so even if an author gives one of those basic powers to an elf instead, that’s still not creative enough to say that the author has created its own type of elf. Stock characters aren’t protectable by copyright, nor are stock character abilities (e.g., flying), but even non-stock abilities aren’t protectable if they represent how a game is played.

“Even if the . . . abilities were not stock, they are still not expressive because they are essentially rules of game play. The . . . ability to strike opponents from a longer distance than other characters. is no more expressive than the ability of a rook in a chess game to take an opposing piece from all the way across the board, as opposed to a pawn that may attack only from the next square. The rook’s ability affects other characters or roles in the game because the attack range increases the queen’s and king’s exposure. But this special ability is neither literary nor artistic. It is an aspect of game play, a subset of the rules that make up the game system.”

Fair Use

This can of worms will not be opened too widely but note that in many cases the infringement of a copyright can be justified. Just like a homicide can be justified as self-defense, infringement of a valid copyright can sometimes be justified because the First Amendment’s Free Speech clause forbids copyright law from suppressing certain statements. Even if WotC is held by a court to have a copyright in a particular stat block, the matter is hardly settled. Depending on the facts of a specific case, it still may be copied, or even published for profit, as a fair use. In fact, it’s almost impossible to make any use whatsoever of, for example, the Forgotten Realms Campaign Setting without technically infringing WotC’s copyright. Once a “dungeon master” (“DM”) makes private notes for a campaign that use information from that book, the DM is technically infringing. It’s quite hard to believe that a court wouldn’t see that as a fair use. That said, relying on fair use is a risky proposition. It 1) admits infringement, and 2) places the burden of proof on you to prove that infringement is justified. As a general matter, don’t be quick to rely on fair use. Always consult an attorney before doing so.

For an more on fair use, here are a couple of posts that represent a good start: The Fair Use Factors and the cautionary tale of Fair Use as an Affirmative Defense.

Copyright Misuse

Copyright misuse is a hard concept. It’s not hard to understand its mechanism, but rather its value. In short, when a copyright holder attempts to expand the scope of its copyright beyond what the law allows, the copyright holder is said to be misusing that copyright, and the alleged infringer can raise copyright misuse as a defense. The reason the defense is important is that it’s usually impossible to know exactly what kind of a world we’d have if the copyright misuse never occurred. The public looks around and says, “Wow, this is a great world we’re living in. All this art, all these computers. It’s great!” Sure, but it could be a lot better, and it can be hard to convince people of that because you can’t point to nonexistent things as evidence. If art were never created, we can’t identify it as missing. The copyright misuse doctrine is one of the ways we make sure that things are better where “better” is hard to define.

For example, for copyrights arising on or after January 1, 1978, if the work was created as part of an employment contract, the copyright lasts for 95 years from first publication or 120 years from creation (whichever is shorter). Let’s say that a copyright is scheduled to expire in 75 years. If the copyright holder offers a license to that copyrighted work for 100 years, that would give them control of the work even after the copyright expired. That’s considered copyright misuse because it effectively extends the life of the copyright beyond the time Congress intended. If someone infringes the copyright, they can raise the defense of copyright misuse even if they aren’t a party to that license. See Lasercomb America, Inc. v. Reynolds, 911 F.2d 970 (4th Cir. 1990).

Copyright misuse can also occur where public data (i.e., material no one owns) is wrapped up within copyrighted material, and the copyright holder essentially takes it hostage. For example, let’s say the owner of copyrighted software licenses it to various governments to collect public real estate data. The public data is thus hidden within the software, and the only way to extract it is to technically infringe the copyright. If the license strictly forbids that extraction of data, the copyright holder has committed copyright misuse by leveraging its copyright to deny access to public domain data. When public material and copyrighted work are inseparable, the copyright holder can’t extend its valid copyright protection to restrict the public material. See Assessment Technologies of WI LLC v. Wiredata, 350 F.3d 640 (7th Cir. 2004).

The Courts of Appeal for the 3rd, 5th, and 9th Circuits have also expressly recognized the doctrine of copyright misuse as a defendant’s defense against a claim of copyright infringement, with the 3rd and 9th Circuits recognizing it as an affirmative cause of action available to a plaintiff.

In the case of stat blocks, if any copyrightable text in the Monster Manual is used to threaten or contract away the public’s ability to use uncopyrightable game mechanics or fantasy themes, then the creator of the copyrightable text is committing copyright misuse. But is there any copyrightable text in a stat block itself?

Stat Blocks

It’s indisputable that stat blocks are at least partly functional. They describe how a creature fits mechanically into the framework of the game system in a way that’s intuitive. If the structure were artistic, it wouldn’t even be readable. By forbidding republication of a stat block, WotC is leveraging their creative work to essentially protect game rules, fantasy themes, and principles of human psychology, effectively extending their copyright to uncopyrightable elements. That’s the definition of copyright misuse.

Stat Block Content

Here’s an example of a stat block of my own creation that shares many similarities with the one appearing in WotC’s Monster Manual.

A cyclops is a one-eyed giant first introduced in the Odyssey (based on prior oral tradition), which was written near the end of the 8th century B.C. The idea of a cyclops is clearly in the public domain, which also explains why WotC hasn’t sued Warner Brothers (among others) for including them in the movie, Wrath of the Titans. Most of the mechanical elements of the stat block – size, creature type (“giant”), alignment (“chaotic neutral”), ability scores, the Poor Depth Perception trait, its high strength but low intelligence – all reflect the nature of this creature as it appears in Greek and Roman mythology. With respect to, for example, the trait Poor Depth Perception, it would be creative to give the cyclops exceptional depth perception, but WotC didn’t do that probably because players want to face the mythological equivalent of a cyclops. That’s one of the reasons WotC is limited in how creative it can be practically speaking; it’s intentionally marketing a game where players can fight with creatures from literature and ancient legend, which are creatures WotC can’t own. Granted, they’ve created some of their own creatures, but frost giants and fire-breathing dragons are the real draw. Even the CR (“challenge rating”), which at first blush appears to be a completely arbitrary choice, roughly reflects the power level expected for a standard cyclops based on its mythological legend, but varying that CR isn’t creative anyway. It’s just a means to allow characters of different levels to face the same creature as provided in the game mechanic.

What does the presence of the action, Rock, say about cyclopes? It says they tend to keep boulders around for throwing at enemies. Besides being an intuitive and logical assumption about a cyclops, that’s also part of the culture presented in the Odyssey, so no one owns that cultural element. The cyclops is also given a greatclub as a weapon, which does bludgeoning damage, but as cyclopes are known as talented weaponsmiths, there’s no weapon that a cyclops could wield that could be considered a creative choice. Cyclopes wield all of them, including exotic ones not commonly used by Greek and Roman soldiers. Moreover, in 5th edition D&D, it wouldn’t even matter. If the cyclops had a longsword, the mechanics of the character wouldn’t differ; the attack expression would remain “+9,” and the damage expression would remain “22 (3d8+9).” The only change would be to the damage type of the weapon (slashing), which would be creatively insignificant, and overwhelmingly mechanical, impacting resistances, immunities, and vulnerabilities of the cyclops’s enemies.

What about synonyms? Is there an acceptable synonym for “neutral”? In this context, neutral describes where a creature falls along the two philosophical axes of good v. evil and lawful v. chaotic. Sometimes it means (more or less), “switching between the two extremes as circumstances dictate,” and at other times means, “having no regard for either of the two extremes.” There’s probably not a single word that can generically express either term, but even if there were, WotC wouldn’t own it. Any other interpretation of copyright law would render copyright completely unworkable. “Hit points” as a means to measure health is a bit stronger case for WotC. The term hit points is, to borrow from trademark law, suggestive of health rather than a direct identifier of health. By itself, “hit points” may not be creative enough to justify a copyright, but it is creative philosophically speaking. Similarly, armor class is suggestive because it’s actually a poor descriptor for what it represents. Armor class represents one’s ability to avoid harm; however, for many characters, Dexterity in particular, and other abilities on occasion, are more significant than their armor for determining their armor class. Some characters don’t even wear armor yet manage to boost their armor class noticeably even without magic. That makes “armor class” creative. However, despite these potential arguments in WotC’s favor, the abbreviations “HPs” and “AC” are not protectable, nor are more direct identifiers like “initiative,” “Strength,” etc. This explains why no other (non-OGL) game systems use “hit points,” but many use “Strength,” and some use “HP” for “health points.”

As to alignment, what if a third-party were required to use “nonaligned” (assuming that doesn’t violate WotC’s copyright in 4th edition for “unaligned”)? WotC uses neutral and unaligned, and the third-party uses nonaligned. What does the next person use? Eventually, the language runs out of words to describe the idea. The use of a single word or two to accurately express a complicated concept cannot fairly be deemed copyright infringement. Instead, copyright focuses on that “expression” of the complicated concept. When one person writes a few sentences explaining the concept of neutrality, then the specific way that paragraph is written may be protectable. Simply saying “neutral” isn’t. While personality is a component of copyrightable subject matter, and “chaotic neutral” certainly describes part of a character’s personality, it isn’t nearly enough to represent a meaningful personality. Too many characters in both the real and fantasy worlds are “chaotic neutral,” and the character’s alignment tells the reader nothing about the character’s ambitions, background, or even personality to any appreciable degree. “Chaotic neutral” in isolation is just a game mechanic, and in the case of a cyclops, it’s exactly as they’ve been portrayed for millennia. However, even if WotC had chosen to make them lawful good, there are far too many other lawful good characters to assume that a mere change of alignment will make a cyclops copyrightable. It’s simply not creative enough.

Stat Block Structure

The structure of a stat block is functional, based more on readability than artistry. WotC didn’t have to choose blood red as the color of their highlighted text. In the interests of staying as far from infringement as possible, the one-stop stat blocks use purple, though it wasn’t necessary to do so. The fact that some text is highlighted is similar to what WotC did, but that’s also a matter of function (i.e., readability), not artistry. WotC doesn’t have a claim to functional structure based on psychological principles governing human perception.

Nevertheless, there are several means to present gaming information in a format that’s readable, so does the law require third parties choose another way? The fact that every game designer’s goal is to make the information readable, and thus serves a functional purpose, suggests not. However, the argument is even stronger when considering how limited those means are, as well as how the notion of “substantial similarity” affects the analysis. Looking at stat blocks across game systems, all of them present the same mechanical information more or less, and every conceivable combination of presenting that information has been used (multiple times, in fact, without infringement lawsuits). The claim that every conceivable combination has been used rests on the fact that slight variations of those formats would be deemed “substantially similar,” and thus still infringing the stat blocks as presented in existing systems. There’s nothing new to create, which means that granting a copyright in stat block design would prevent any new game system from being marketable.

Unsurprisingly, I’m unaware of a single instance when any game designer issued a cease and desist letter based on the format of a stat block. This is important in light of the fact that there are so many well-known game designers that have published similar stat blocks for decades. If WotC’s argument becomes, “But you can’t use that particular stat block design with our specific game rule system,” then they’re using the uncopyrightable game system to pile on to a format (copyrightable or not) and claim copyright in the collection, which as discussed, they can’t do. Note, however, that WotC didn’t appear to be claiming stat block structure in their takedown request. In their email, they wrote (in pertinent part):

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.

That is, they focused on the text’s “highly descriptive” nature (without justification, of course). They never mentioned the stat block structure. Their omission doesn’t prove one way or the other whether they can copyright that structure, but it suggests they know they can’t. If they felt they could protect the structure as well, they probably would have included that in order to make as strong a demand as possible.

Are we out of the Woods?

This isn’t to say that it’s impossible to create stat blocks that are protectable under copyright. A creative (and thus largely unreadable) stat block could be protectable. Also, sufficiently complex content could express a backstory, biology, culture, ecology, personality, or other protectable aspect of the creature or creature type that deviates from established literature or mythology. For example, frost giants and dark elves, as species, aren’t copyrightable; their existence in Norse mythology precedes the concept of copyright itself. Let’s say a game designer writes a stat block for a frost giant that includes the following characteristic: “Due to their allegiance with dark elves, when within 60’ of a dark elf, the frost giant is immune to fear effects.” This implies something beyond the mechanics of the game; to-wit: it says that, in the game world, the dark elves and the frost giants have formed some sort of pact. By itself, this shouldn’t be enough to rise to the level of copyright protection, and it’s probable that this characteristic exists for purely mechanical reasons, but at least it’s a start towards providing enough information about the culture of frost giants that has no apparent basis in mythology or literature.

Instead, let’s say a game designer places this characteristic in a vampire stat block: “If you sing to a vampire, it must follow any commands embedded in the lyrics.” Nothing in mythology or literature suggests that this is a characteristic of vampires (or any creature of which I’m aware), so that’s an original addition to the ecology of vampires. Yet again, by itself this may not be enough to warrant protection, but at least in theory it could be if accompanied by other cultural elements that collectively become copyrightable. Things get a little more complex with this characteristic: “If you say a vampire’s secret name, it’s banished to another plane.” As before, nothing in history or literature suggests this would work on vampires, but mythology states it would on demons/devils. Exactly how original of a concept is that then? It was borrowed from a concept applicable to a different legendary creature, so it wasn’t particularly creative, but the standard for copyrightable creativity is low. It’s a greyer area because it’s a stock ability, but it is an original addition to the vampire as a species. That said, as mentioned above, courts suggest this isn’t enough to warrant protection.

In summary, stat blocks potentially could be copyrightable, but they would have to contain content that very few (if any) contain. However, the second article discusses the difficulties of complex stat blocks.

Trait and Attack Titles

Single words aren’t copyrightable, but a group of words (i.e., a long sentence or paragraph) are. Exactly when does a string of words tell a story that rises to the level of copyrightability? There’s no hard and fast rule, but it’s clear that even two or three words wouldn’t do it. The less words that are used, the more difficult it is for those words to rise to a level of creativity sufficient for copyright. Any other approach would have absurd results. Trait and attack titles are a collection of just a few words, so they provide good examples as to why an author can’t receive a copyright in only a few words.

Look at the ghost stat block on page 147 of the Monster Manual. It includes a trait, Horrible Visage, which provides that merely looking at the ghost will frighten a character. WotC can’t own an idea, but assume for the moment that “Horrible Visage” is a copyrightable expression of that idea. If so, then one would have to rename the trait when reproducing the stat block. Pulling out the thesaurus, one could settle with Horrific Appearance, which is an apt title for the trait. Unfortunately, on page 179, the sea hag has a similar trait called, Horrific Appearance, disqualifying that for use. Combining the two (i.e., either “Horrifying Appearance” or “Horrific Visage”), would violate both copyrights, as both options are substantially similar to the two as they appear in the Monster Manual. By adding this trait to just a couple more monsters, WotC could copyright every combination of synonyms in English to prevent anyone from ever providing a title for this trait for any creature. This is why these titles absolutely cannot be copyrighted. There must remain a way for the public to title this trait.

Clearly, these titles, by themselves, most certainly do not justify copyright, nor should they. Combined with the descriptive content of the trait, the combination could be copyrightable, but as discussed above and as will be discussed in future posts, where the descriptive content is purely mechanical, no copyright will exist even with the combination.

Now Are We out of the Woods?

Again, not quite. Things get just a bit more complicated when the stat blocks in question contain spells and spell-like abilities. However, spell descriptions will be the subject of the next post in this series, so those stat blocks will be addressed at that time.

The Bottom Line

If stat blocks don’t go beyond the traditional description of the traits of a mythological creature, or how those traits are expressed properly within the context of 5th edition mechanics, then the game designers have no right, nor should they, to forbid them from being republished by a third party. Drawing that line can be difficult, but even if there’s an arbitrary choice being made in a stat block, it still may be safe to republish, as that choice must represent a modicum of creativity to warrant protection. A stick figure is creative in nature and thus copyrightable subject matter, but most of them aren’t creative enough in practice to warrant a copyright. Some are. For the vast majority of stat blocks, the analysis is easy, and you should be able to republish them. Just keep in mind that large companies are better able to finance a lawsuit than you are.

What’s Next?

The next post will address the copyrightability of spell descriptions, and then the third will expose the true nature of the Open Gaming License.

New Living Campaign for #4e #Dungeons & #Dragons #DnD #RPG #GenCon CC: @Erik_Nowak @Luddite_Vic

Information has slowly been swirling through or local Washington, DC gaming community, and to a lesser extent, beyond that. The Gamers’ Syndicate has put synDCon on hold and is focusing its efforts instead on something that you can enjoy all year round: A living campaign for 4th Edition Dungeons & Dragons. Many 4e players feel that there’s still more to do with 4e, just as 3rd Edition players felt there was more to do with 3e, and we’re seeking to give 4e players that same opportunity that Paizo gave the 3e players with Pathfinder and, more to the point, Pathfinder Society.

Living Campaign

For those of you that don’t know what a “living campaign” is, I point you to the Wikipedia entry, because Wikipedia never lies. Actually, “living campaign” is often defined differently by different people. To me, the most important aspect of a living campaign is allowing all of us to meet each other. In other words, it grows the role-playing game community; however, there are other important aspects to it. It allows the players to shape the campaign world even though their playing pre-written adventures. That is, if the majority of players accomplished a task in one adventure, that fact will be tracked by the authors and shape how future adventures are written. What the players do matters, even though they’re sharing the experience with thousands of players worldwide.

The Campaign Setting

Every campaign needs a campaign setting: a world that needs protecting and sometimes saving. Some famous examples of Dungeons & Dragons campaign settings include Ed Greenwood’s Forgotten Realms, Keith Baker’s Eberron, and Gary Gygax’s (everyone bow, right now!) Greyhawk. Our campaign setting hasn’t yet been named, but it’s one of our own design, spearheaded by the devious mind of Erik Nowak (who, if you recall, brought us Rotting Toes). Erik premiered the first two adventures (co-written by Dave Phillips) for this campaign setting at synDCon I and synDCon II. The setting is high fantasy, but not quite that high. Characters will use inherent bonuses so that acquiring magic items won’t be critical, and when they are acquired, they’ll be special.

We’re also introducing a mechanic for tracking a character’s reputation in the kingdom, and have a fairly ambitious plan in the works, but those are topics for later posts.

GenCon 2013

As I’ve mentioned before, I’ll be running the two introductory adventures at GenCon this year, which serves as a sneak preview of the campaign. However, we’re working on the first four adventures, so we’re on track for an official start not too far in the future. Stay tuned.

Follow me @GSLLC
Follow Erik Nowak @Erik_Nowak
Follow Paizo Publishing @Paizo