RPGs as Intellectual Property

d20 Law
d20 Law

Intellectual Property.

In today’s world of high consumerism and corporate welfare, the owners of popular intellectual properties [IP] can get rich by merely selling the rights to allow other products to use their IP for branding and flavor.  Billions are made from Star Wars licensing alone.  The same can found with professional sports licensing.

While the sales are significantly smaller, the world of roleplaying games is not any different.  Gamers will often buy product just because its cover is branded with their favorite system or setting logo.  The product is often purchased without regard to quality or value.

Thus the keepers of lucrative IP zealously guard their rights and often bring hell upon those that would sip from their holy grail.  There are entire organizations dedicated to keeping works out of the hands of the people (RIAA and MPAA may be the largest).

Dungeons & Dragons has a storied past of IP conflict including the TSR vs. Judge’s Guild, Mayfair Games, and Game Designer’s Workshop cases (which never made it to court).  Intellectual property concerns have reared their ugly heads recently in the RPG Blogosphere with regards to who owns a comment on a blog and the 2008 Anthology of RPG Blogs currently being edited by Jonathan Jacobs.

The most recent ripple in the online community is the closing of Ema’s Character Sheets site.  Wizards of the Coast sent a cease and desist letter to the popular site and the website complied by shutting down activities.  If you would like to read more about it, Geek Related and the World of Alidor have more information.

Hopefully, this article will shed some light on what the forms of intellectual property protection are available and how they relate to table top roleplaying games.  Though, I should say that I am not a lawyer and this is merely how I understand things and is in no way, shape, or form to be considered legal counsel.

IP Protection Intent

Article I, Section 8, Clause 8 of the United States Constitution states:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

The intent of Intellectual Property Law is to encourage new creative works by providing a limited time monopoly to IP developers, but after that period of time elapses, it allows these works to fall into the public domain to be utilized without restraint.  IP law is not about protecting an author’s interests indefinitely or to protect corporate cash cows; however, current legislation would appear to prove otherwise.

Methods of Protection

United States intellectual property law affords protection of IP assets under four different methods:

  • Copyright: protects the expression of original works of authorship (literary, musical, or artistic)
  • Trademark: protects the use of logos, slogans, names, and trade dress for marketing
  • Patent: protects against the use of an invention (machine), process, or compositions of matter
  • Trade Secret: uses contracts and non-disclosure agreements to keep information secret

Copyright

U.S. copyright law is pretty clear on whether or not a game can be copyrighted.  It can’t be.   At least the rules that is.  Ideas cannot be copyrighted, only the expression of those ideas.  So the manner in which the rules are presented and expressed are protected by copyright, along with any images published to support the game.

Also, works do not need to be registered to be protected.  As soon as a work is fixed on a tangible medium (this could even be a webpage or a hard drive) it is protected by copyright.  So the presentation of the rules of a game can be copyrighted, but not the rules themselves.

The United States Copyright Office Flyer 108 states:

Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form. Copyright protection does not extend to any idea, system, method, device, or trademark material involved in the development, merchandising, or playing of a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles.

So while someone cannot recreate a publisher’s rulebooks wholesale, intellectual property law does allow the system to be utilized in another author’s work.  Rules, systems, and devices are all the purview of patents.

Trademark

Trademarks are the slogans, names, and logos used to market a product (Dungeons & Dragons, “Fast, Furious, Fun”, and the “D&D” logo).  It also refers to the trade dress of the packaging of products which can include the three-dimensional shape, color, graphic design, and even smell or sound (shape of a bottle of soda, Fed Ex graphic design, and THX’s “Deep Note”).

Trademarks may be established through actual use in the marketplace or through registration.  Which explains difference between the TM (not yet registered) and ® (registered) symbols, if you were ever curious.

It is important to note that a trademark may [eventually] be ruled as generic, and cannot be protected under trademark law.  Much like salt is the common (or generic) name of sodium chloride.  Such is the case with cellophane and aspirin, which were at one time trademarked brand names (victims of their own success).  So a publisher needs to maintain distinctiveness with their trademarks, lest they become public domain through common use.

The Lanham Act permits a non-owner of a registered trademark to make “fair use” or “nominative use” of a trademark under certain circumstances without obtaining permission from the mark’s owner. The fair use and nominative use defenses are to help ensure that trademark owners do not prohibit the use of their marks when they are used for the purpose of description or identification (Publaw.com).

Trademarks are perhaps the biggest grey area when it comes to whether or not you can utilize the names of various mechanics and proper names from a roleplaying game.  Is “Beholder” a trademark?

Patent

If a publisher truly wanted to maintain exclusive rights over the rules of a roleplaying game they invented, then applying for a patent would be a sure-fire method to do so.  However, the rules would have to be patented within a year of their publication and would only last up to twenty years.  However, a publisher would be able to patent each significant improvement of the rules, allowing a publisher to maintain a stranglehold on any current edition of their rules.

No company to date has been granted a patent for their rules that I am aware of.  One of the primary reasons for this is the prohibitive cost of application and renewal fees involved in the process.  One can easily spend nearly $8,000 searching and filing a patent application (IP Watchdog).  I could also argue that the larger companies have done reasonably well protecting their interests with threats of litigation.

For more information on patents and trademarks, I recommend you visit the United States Patent & Trademark Office.

Trade Secret

Trade Secrets do not really apply to any published roleplaying game, so they are not of much concern.  Where they do apply would be for unpublished material that is still under development.  If a company like Wizards of the Coast were developing a sourcebook for evil outsiders, they would most likely require non-disclosure agreements before they would allow any freelancers to begin work.

Trade Secrets are meant to protect IP by keeping it a secret during development, which prevents competitors from bringing similar products to the market.  It would also apply to some secret in ingredient/process employed during the printing process (like a ritual cast upon the pages to compel readers to purchase more books).

Conclusion

I think it is fairly clear where I stand on the issue.  I am a fair use advocate.  While I think the Open Gaming License does a wonderful job at protecting both parties; it allowed game designers the freedom of developing game without worrying about legalities.  I am of the opinion that most publishers do not even need it.

Listening to: Amon Amarth – Twilight of the Thunder God – Free Will Suffice

15 thoughts on “RPGs as Intellectual Property

  1. You raise a lot of great points in this article. As a relatively new contributor to the blogging community I honestly hadn’t given this much thought. The whole reason I started my gaming blog was to share my thoughts and ideas about D&D with the gaming community at large. I never thought about the “evils” of content ownership. I suppose, like you I assume that anyone who wants to use my tips, tools or modules will do so for entertainment purposes only and (hopefully) they won’t try to turn around and make money from my hard work.

  2. This is a nitpick, but salt? Salt is an Old English word that we (meaning the OED) have records of back to the year 1000, which would make it exactly the kind of word that cannot be used as a trademark.

    The examples I usually see are aspirin, thermos, and yo-yo.

    Joshua Macy’s last blog post..Awesome!:The Storytelling Game

  3. @Ameron: Welcome to the community! I think that modules, as in adventures, would be fairly well protected by copyright, as the story that glues all the mechanics together would be considered a literary piece. Thanks for stopping by.

    @Joshua: You are correct! I had actually composed a sentence about generic terms, such as salt, but it got lost somewhere during the creation of that paragraph… I’ll edit my mistake.

    @Jonathan: I was going to try using the Wayback Machine, but you beat me to it. A lot of stuff bombs out, but I already see the site was using character sheets with the trademarked logo, which is infringing…

  4. Yeah, the problem was Ema went beyond Fair Use with a subscription service. As a third party publisher, Ema’s project clearly violated the terms of the GSL, in several ways – reproducing exact text from the PHB for power descriptions; producing both 4e and 3e content within the same product line…

  5. @Thasmodious: One, you can only be subject to the GSL if you bind yourself to it. No where did Ema ever state that he was publishing under the GSL. The GSL (or the OGL) is not some far reaching law that applies no matter what. So if you use material under fair use, you are not bound by the terms of the GSL.

    Two, the GSL could never have been applied to the website or to a character generator, because in section 5.5 it specifically states that “no Licensed Product will (a) include web sites, interactive products, miniatures, or character creators; (b) describe a process for creating a character or applying the effects of experience to a character.”

    So I doubt he was using the GSL. With this fact in mind, I’d like to eliminate further discussion concerning any violations of the GSL, since Ema could have never been bound by it.

    As far as fair use is concerned, a subscription service by itself does not infringe on anything by itself. However, Ema was using copyrighted images (which is the extent I can see from Archive.org) in the form of the D&D logo and the graphic design of the sheets themselves, and that is infringement with or without a subscription service.

    I apologize if my response is a little heated, but I think there is a pervading sentiment that just because Wizards created the GSL for use with 4e, that it is automatically in effect on anything ever created for use with 4e. A publisher must willingly agree to the license.

    I also think there is a myth that many activities are fair use as long as you don’t make any money off of it. It should be noted that whether or not someone is earning money from an endeavor has absolutely no bearing on whether or not said endeavor is infringement.

  6. @Madbrew — Beholder, Mindflayer, Rust Monster, Warduke, and many other terms are TM’s maintained by WotC — that were created back the 80’s under TSR. But you are right… you can still use these terms in any RPG you make yourself as long as you 1) attribute that it is a trademarked name, and 2) indicate that the terms are trademarked by someone other than you and you do not represent the owner, etc etc.

    But yeah… i think you and I are on athe same page.. people for some dumbarse reason think they NEED to sign the GSL to make 4E products. They do not. Plain and simple. They don’t even need the OGL. In fact, much like Kenzer & Co., you can make a D&D 4E product and even say “this is made for D&D 4E” so long as you indicate you are not WotC and you are careful with using their trademarked terms. This is what Kenzer & Co. did with their 4E version of Kingdoms of Kalimar.

    and this is of course what I’m doing with the anthology.

    BTW — there’s no way to have the option to subscribe to comments on your blog anymore; i just happened to check back here and noticed more comments were left. Is that by design?

    jonathan’s last blog post..New 4E Ritual Feats

  7. @Jonathan: Did you know that David Kenzer’s day job is being an attorney, and not just any lawyer, an IP attorney!

    Oh and I see an “RSS feed for comments on this.” link in red right below the last comment, but I know how things work differently on different systems… oh, and I have a comment feed subscription for the entire blog at the bottom of the Recent Comments section in the sidebar.

    If you are subscribed and it’s not working let me know, as I have tinkered with a lot of stuff behind the scenes (with Google and Feedburner merging) in the last two weeks and I just upgraded to WordPress 2.7.1 today.

  8. @Apotheon: Your reply was awesome, and I appreciate your comments regarding this article! I recommend anyone reading this post to follow it up by reading Apotheon’s reply on his blog.

  9. “I apologize if my response is a little heated”

    I laughed a bit when I read this, as your response was anything but heated. It is informed and reasoned. My short comment was a passing comment speculating that the most likely reason Ema was targeted was charging money for character creation. I was not saying the GSL applies to anything someone produces for 4e, not at all. The point is that WotC has laid out (poorly, still in need of a lot of work, but lets assume for our purposes here that the GSL as it exists is a reasonable document) the terms under which it finds using its IP for profit to be acceptable, making a statement of where the line is with which the company would feel the need to protect its IP.

    “It should be noted that whether or not someone is earning money from an endeavor has absolutely no bearing on whether or not said endeavor is infringement.”

    Legally, no. But from the companies standpoint it certainly does. From their viewpoint, when does something go from fan use, which most companies more than realize is great for their product, to something the company sees as a problem that needs action?

    Why target Ema otherwise? There are dozens of very popular character sheet and character generators out there for free, WotC did not send out a post bag full of letters to target all the rivals to its Character Builder, they went after one guy who was reproducing their text verbatim and charging for it.

  10. @Thasmodious: You are absolutely correct about how earning money affects what kind of stance a company may take with someone infringing on their property. You will incur wrath their wrath more quickly for sure.

    I do think that WotC missed the boat when they failed to include clauses for websites and other digital product in their GSL (or another license altogether). I think it was specifically for reasons of being able to selectively choose who to strong arm out of competition. For intance, if I made a free version of their character creator, that provided as much or more than their product, I bet they would attempt to convince me to remove it.

  11. I seem to recall that WotC promised a forthcoming Website license, as a counterpart to the GSL that would specifically address online materials — and that the GSL specifically disqualified itself for that purpose. Some Websites even put off addressing 4E because of the sticky licensing issues particular to online reference to 4E materials, even setting aside the difficulty of reconciling the GSL’s anti-OGL terms. I don’t feel like reading through that Great Sack of Lard again today, though, so I’m afraid I can’t be 100% certain of that fact. As far as I’m aware, though, WotC has dropped the ball on producing a Website license, too.

    apotheon’s last blog post..RPGs and Intellectual Protectionism

  12. @Apotheon: Yeah, they specifically prohibit websites and software under the GSL. They were supposed to release a fansite license, but they were also supposed to have a revised GSL by now too…

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