According to leaks reported last week, the company that owns Dungeons and Dragons (D&D) is planning to revoke the open license that has, since the year 2000, applied to a wide range of unofficial, commercial products that build on the mechanics of Dungeons and Dragons. The report indicates that this wouldn’t simply be a change going forward, but would affect existing works that relied on the license. The old license would be revoked for existing uses, and people who have used on it will be forced to adopt new terms or renegotiate with the company, Wizards of the Coast, a subsidiary of game giant Hasbro.
Obviously, this would be a rude and unfair thing to do to people who have accepted the invitation of the open gaming license (OGL) to create new games and stories that build upon Dungeons and Dragons. But would it be legal?
Even more interesting, would revoking the OGL actually give some third parties more freedom to operate, given that the OGL forced them to promise not to do some things that copyright and trademark law otherwise permit?
Let’s find out.
What is an open license?
An open license is an offer to allow people to use your materials in the ways you specify, despite some legal right such as a copyright that would otherwise entitle you to withhold permission. For instance, the Creative Commons Attribution license provides rights to adapt and share a copyrighted work, so long as the user gives you credit, or “attribution.”
If you have a copyrighted work and you want to give people reassurance that they can make use of it, open licenses are a handy way to do that. You might do this because you want your work to be freely shared far and wide or because you want to build a community of creativity.
But an open license only makes sense if the work is actually copyrightable, meaning, you would otherwise have the legal power to stop someone from doing what you want to permit. For instance, if I put together an uncopyrightable phone book composed of bare facts organized alphabetically, then people are already free to use it and there nothing for me to “license.”
What’s copyrightable about a roleplaying game?
A roleplaying game is like a cross between improvisational acting and playing a board game. It’s called a roleplaying game because players take on fictional personas, or roles, and narrate or act out their actions within the shared fictional narrative. Roleplaying games are typically published in books that describe the rules of play and may also include scenarios and fictional settings to supplement the stories that players invent.
Copyright grants an author a limited monopoly over their creative expression. It doesn’t cover bare facts, mere ideas, systems, or methods. But it does cover the creative way that a person expresses facts, ideas, and so forth, provided that the expression has sufficient creativity. A roleplaying game book often includes both a description of a mechanical system and creative, fictional elements.
When describing a noncopyrightable game mechanic, I might do it in a dry, noncopyrightable way, or I might do it in a creative, copyrightable way.
For example, if I want to describe a magic spell that turns someone invisible in a game, a non-copyrightable way to do it might be:
Invisibility spell: You must speak magic words and touch your target. When you do, they become invisible for one hour. You may end this spell whenever you wish. This spell ends automatically if your target makes an attack or casts a spell.
While there are different word choices that could be made in some places, this is a functional description of how the spell works as a game mechanic. You have to speak, so it doesn’t work if you’re gagged. You have to touch the target, so you need to be close to them. And so on. Functional descriptions aren’t copyrightable.
Here’s a different version:
Kit’s Shroud of Concealment spell: Incant “stars’ blight upon all sight” and touch your target. When you do, the spirits of the constellations descend to wrap them in an unearthly mist that makes them invisible for one hour. You may send the spirits home whenever you wish, ending the spell. The spirits depart automatically if your target makes an attack or casts a spell. This spell was developed by the Sorceress-Lawyer Kit when she negotiated the contract between the Tower of Sorcery and the Constellation Spirits in the year of the Fallen Mountain.
If all that additional text is just fluff with no game consequences, this version probably contains some elements that are copyrightable.
However, if other game elements trigger when spirits are present, or if someone says a rhyme, or based on other fictional elements described here, then the uncopyrightable game system might “merge” with the text here so that it wouldn’t be infringement for someone to reproduce this text entirely. Courts are essentially interested in whether the uncopyrightable elements of the work remain available for the public to use, or if the copyright owner is effectively monopolizing them because there simply aren’t many different ways to describe the uncopyrightable ideas or system.
Contrast this with a five-page narrative about the history of the Sorceress-Lawyers, which would likely be covered by copyright just like any other fictional narrative. It’s also possible to have a copyright in the selection and arrangement of uncopyrightable elements: if my game arranges the spells according to which fictional spellcaster invented them, then I might have a copyright in that particular arrangement, and a user should probably put them in alphabetical order or order of increasing power or something else conventional and functional if they don’t want to risk potential infringement.
The exact lines of copyrightability are going to vary from game to game and even page to page. For now, it suffices to say that there is a lot of text in a roleplaying game that can be shared without infringing copyright, and there’s also text that will have copyright attached to it. And, of course, this legal analysis focuses on US law; there will likely be different considerations elsewhere in the world, particularly in jurisdictions without robust protection for the right to make fair uses of copyrighted works.
What did Wizards of the Coast offer under their Open Gaming License 1.0a?
The version of the Open Gaming License (OGL) that has existed since 2000 is very narrow. It permits use of “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.” You’ll notice that these are the elements that are not copyrightable in the first place. So the only benefit that OGL offers, legally, OGL is that you can copy verbatim some descriptions of some elements that otherwise might arguably rise to the level of copyrightability.
But if you accept the terms of the OGL (more on that later), you agree not to use a lot of other things that the license defines as “Product Identity,” including “product and product line names, logos and identifying marks including trade dress; artifacts; creatures characters; stories, storylines, plots, thematic elements, dialogue, incidents, language, artwork, symbols, designs, depictions, likenesses, formats, poses, concepts, themes and graphic, photographic and other visual or audio representations; names and descriptions of characters, spells, enchantments, personalities, teams, personas, likenesses and special abilities; places, locations, environments, creatures, equipment, magical or supernatural abilities or effects, logos, symbols, or graphic designs; and any other trademark or registered trademark clearly identified as Product identity by the owner of the Product Identity, and which specifically excludes the Open Game Content.”
For most users, accepting this license almost certainly means you have fewer rights to use elements of Dungeons and Dragons than you would otherwise. For example, absent this agreement, you have a legal right to create a work using noncopyrightable elements of D&D or making fair use of copyrightable elements and to say that that work is compatible with Dungeons and Dragons. In many contexts you also have the right to use the logo to name the game (something called “nominative fair use” in trademark law). You can certainly use some of the language, concepts, themes, descriptions, and so forth. Accepting this license almost certainly means signing away rights to use these elements. Like Sauron’s rings of power, the gift of the OGL came with strings attached.
The primary benefit is that you know under what terms Wizards of the Coast will choose not to sue you, so you can avoid having to prove your fair use rights or engage in an expensive legal battle over copyrightability in court.
Adoption of the OGL
Despite the stinginess of the OGL, it provided legal certainty that many individuals and small game publishers used to make new games and new material for Dungeons and Dragons. Some of these product lines have been around for decades and developed their own following. One of the neat things about a cultural commons is that people can find something they kind of like and then tweak it to be just right for them, rather than settling for a one-size-fits-all approach. House rules and variants had always been a part of roleplaying game culture, and D&D culture specifically, and now the practice had official permission (even if it never needed permission in the first place as a legal matter).
Revocation of the OGL
If the reported leaks are accurate, and if Wizards of the Coast goes ahead with a plan to revoke the OGL, then people who publish and distribute works relying on the OGL will have to re-evaluate their legal position. If they’re doing something that would be copyright infringement absent a license, they may face legal risk.
As a threshold question, can Wizards of the Coast legally revoke their license? Other open licenses like Creative Commons licenses and the GPL are clear that the rights they grant are irrevocable. At the very least, this means that once you rely on the license to make something, you can keep making it and distributing it no matter what the copyright owner says (as long as you comply with the terms of the license).
The OGL does not say that it is irrevocable, unfortunately. It’s possible that Wizards of the Coast made other promises or statements that will let the beneficiaries of the license argue that they can’t revoke it, but on its face it seems that they can.
Some have pointed to the word “perpetual” to argue that the license is irrevocable, but these are different concepts in the law of licenses. Perpetual means that the license will not expire due to time passing, that’s all. In RPG terms, consider the invisibility spell. “Perpetual” is like the duration; the spell lasts for one hour. But the caster can dismiss it at any time: that’s like revocation. And if the invisible person makes an attack, the spell ends automatically: that’s like a license terminating because of a condition being met, usually breaching the terms of the license. Just like the magic spell, these are three independent concepts.
What Wizards of the Coast can’t do is revoke the license, yet continue to hold users to the restrictions in the OGL. If they revoke it, then the people who have relied on the license are no longer under an obligation to refrain from using “Product Identity” if they do so in ways that are fair use or otherwise permitted under copyright law. And unless they are using actually copyrighted material in a way that would infringe copyright, there may be little incentive to agree to such restrictions, let alone the new restrictions and potential royalty obligations of any new version of the OGL that comes along.
Can a player or publisher avoid the terms of the OGL, old or new?
The OGL 1.0a includes a strange term claiming that you agree to be bound by this contract by “using” the “Open Game Content,” such as the mechanics. Wizards of the Coast wrote D&D’s license to operate like a cursed helm, where you’re doomed the moment you put it on.
Fortunately, that’s not how contracts work. If it were, then in my book I could write a contract saying that you owe me $10,000 if you write a bad review or author a competing book in the same genre. Contracts require an offer, acceptance, and some kind of value in exchange, called “consideration.” If you sell a game, you are inviting the reader to play it, full stop. Any additional obligations require more than a rote assertion. And for many readers, a bunch of legalese buried in one page of a 200-page book wouldn’t even be effective notice that a supposed contract exists.
However, there are a few ways a person might bind themself to this agreement. If you publish a book and say “published pursuant to OGL 1.0a” or something along those lines you’ve pretty clearly agreed to it. You might also arguably have agreed to it as part of signing up for an online account with Wizards of the Coast. There are arguments against the enforcement of clickwrap agreements, particularly ones that restrict your speech rights, but there certainly are clickwrap agreements that do get enforced.
For someone who wants to make a game that is similar mechanically to Dungeons and Dragons, and even announce that the game is compatible with Dungeons and Dragons, it has always been more advantageous as a matter of law to ignore the OGL. Practicality may dictate a different result when up against the legal team of a large corporation, but if the terms of the OGL are revoked and the new OGL proves even more onerous, that might change the calculus for creators going forward.
Lessons for Other Open Licenses and for Fan Creators
Open licenses can involve a lot of legalese that makes them hard for a layperson to understand, but if you’re going to rely on one, or if you want others to rely on your own open license, it’s important to use one that is robust and meets your needs. Licenses like Creative Commons and the GNU Public License were written to serve the interests of creative communities, rather than a corporation, and it shows. Beware corporate policies about the acceptable use of their copyrighted materials that wind up being restrictions on your fair use rights rather than the grant of meaningful permission.
* This article was originally published here
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