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Table Manners- Plot Hooks for the Adventure – 1:00:44.943
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Creature Feature Theater- Aspis 1:50:17.167
Treasure Chest – Scroll of Invisibility 2:00:10.000
Outro – 2:07:41.751
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In your podcast you discussed IP rights in RPG gaming, in particular to the possibility of publishing a module with certain underdark critters, and how this publication might be impacted by the IP rights that have been asserted by Wizards of the Coast (WotC).
I wonder is there any chance you can get a guest speaker on the show to discuss the Wizards of the Coast’s IP rights and how these impact of the publication of things like modules?
Reading through various posts on the net there appears to be quite a lot of confusion surrounding this matter. However, I found this post by CBDunkerson who might be a good candidate to have on the show to discuss this matter (CBDunkerson wrote this paizo.com/threads/rzs2nv0p?Beholders-Do-they-exist-in-Pathfinder#19):
“Actually, it is impossible to ‘copyright’ a fantasy race… as first established in the very Tolkien Enterprises (aka Saul Zaentz) vs TSR suit you refer to. Zaentz, who had acquired the rights to The Hobbit and The Lord of the Rings, sued TSR claiming infringement for ‘hobbits’, ‘ents’, ‘nazgul’, ‘balrogs’, and various other things. TSR did a quick rewrite to ‘halflings’, ‘treants’, ‘wraiths’, ‘balor’, and so forth to avoid violating trademark (not copyright) on the specific creature names.
The various ‘iconic monsters’ are the same issue. They are argued to be representative of the ‘D&D brand’ and thus use of those monster names by others would be like a new soft drink copying Coca-Cola’s logo… improperly trading on the reputation of the other brand to improve their own sales.
However, the solution adopted by D&D all those years ago also applies… just change the names. Problem solved.”
To my mind, it appears that CBDunkerson is on the correct tack.
Firstly, before any analysis can be made, a clear distinction needs to be made between trademarks and copyright (they are quite different).
Trademarks cover things like brand names, e.g. names like Coca-Cola (and their logos) and these trademarks must be registered to exist (i.e. they are put on a searchable list). Copyright is not like a brand name, it protects artistic works like drawings, paintings and literary works. Another important distinction is that copyright exists automatically and does *not* need to be registered.
These are therefore two very different intellectual property rights and one needs to be very strict when referring to what rights we are talking about.
Below, I have tried to consider these two IP rights separately with respect to WotC
(1) Trademark:
To get a trademark you need to pay money to get the trademark registered, and this has the benefit that you can look that trademark up (and even note for example if the registration has lapsed).
Therefore trademarks are easy to determine – you can just look them up.
Does anyone know if WotC have registered the monster names such as beholder as trademarks? It seems a little unlikely that WotC can have blanket protection for the word ‘beholder’ as they cannot have a monopoly on the phrase ‘beauty is in the eye of the beholder’. Maybe just protection in the context of RPG gaming? However, ‘Mind Flayer’ is a little more distinctive and maybe they can get broader protection.
Just tried to check the US trademark database (i.e. searched here tess2.uspto.gov/bin/gate.exe?f=searchstr&state=4001:qogha3.3.1), but it is possible I was looking in the wrong place??
I found **no** hits for Balhannoth, Carrion Crawler, Displacer Beast, Gauth, Githyanki, Githzerai, Kuo-Toa, Mind Flayer, Illithid, Slaad, Umber Hulk’ and Yuan-Ti.
The only hit I found was for ‘Beholder’ –but this was not actually a WotC trademark but rather seemed to be about computers programs etc, see: tess2.uspto.gov/bin/showfield?f=doc&state=4001:qogha3.7.2)
Unless I cannot search the trademark database well enough, then I cannot find any trademarks for the above creatures in the US trademark database, let alone in the name of WotC. Therefore, I can see no reason why these words used in a module would infringe copyright. If anyone can find these marks please post a reply to this message :O)
(2) Referencing any trademarks?
I’m pretty sure I can write the words Coca-Cola in this message without infringing their trademark. It is quite clear that I’m not trying to sell Coca-Cola – trademarks exists to protect one brand from ripping off another brand.
Therefore, if publishing a module which contains these critters in it, it would seem wise to make it absolutely clear that you are not selling a work that is made by WotC or authorized by them in any way. A clear and prominent disclaimer at the beginning of the module would seem wise.
Again, I’m not sure if WotC have registered trademarks to the names of these monsters (if that is at all possible, and I didn’t find any trademarks when I searched the US trademark database, but I’m not an expert in searching for trademarks). However, would referencing the owner’s trademark (if such a mark existed) in a module relieve this trademark issue (e.g. a phrase like ‘BeholderTM’, and including an appendix in which the registration to WotC is detailed), and not forgetting a prominent disclaimer.
(3) Copyright:
As mentioned above, copyright (unlike trademarks) will subsists automatically at the time of creation in a work *IF* that work qualifies for copyright (see later) – i.e. no registration is required.
Therefore part of the problem with copyright is that you cannot look these rights up in a register, therefore it is hard to know if you infringe copyright until you are actually sued.
(4) What is a copyright work?:
Looking at the (US) copyright act in Section § 102 (see: www.copyright.gov/title17/circ92.pdf) it seems that copyright can exist in:
“Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.”
Therefore in the context of module making only (1) and (5) realistically apply.
For example Monster Manual 1 (MM1) as a whole would have copyright under (1) above as a literary work. I presume that even a single monster extract from MM1 would also have it’s own copyright.
Copyright would also extend to the pictures in MM1 under heading (5).
Therefore, direct (verbatim) copying is obviously a breach of copyright, e.g. if for example you photocopied MM1.
However, as CBDunkerson essentially said, you can’t copyright the “idea” of any particular creature. When the race ‘Hobbit’ was renamed to a race ‘Halfling’ the trademark of ‘Hobbit’ was not infringed. However, setting aside trademarks, does a Halfling infringe the copyright of the hobbits mentioned in Lord of the Rings (it seems not) according to CBDunkerson and the legal case he cited?
(5) Copyright in a Derivative work taken from a pictorial/graphic work:
There appears to be a sub-category of copyright which extends to altering a work which already has copyright, the resulting work is known as a derivative work.
For example, if you take a black and white picture (which has copyright) and colour it in. You have created a new work (which you have copyright in) but have also infringed the copyright of the original work if you did not have permission to copy that original (black and white) image. It seems that it is not a contradiction that a derivative work can have copyright and still infringe another’s copyright.
In regard to derivative works, I saw this on the WotC website (see www.wizards.com/d20/files/4E_GSL.pdf ):
“5.7 Imagery. For the avoidance of doubt and in addition to the provisions of Section 9 related
to ownership and use of Wizards Intellectual Property (as defined therein), Licensee expressly
acknowledges Wizards’ ownership of all imagery and artwork contained in 4E, and Licensee expressly
agrees it will not reprint any such imagery or artwork without Wizards’ written permission. In addition, and
without limiting the foregoing, Licensee will not reprint, publish, use, nor create Derivative Imagery of, any of
the following proprietary characters (whether from 4E or any other products published by Wizards or TSR,
Inc.): Balhannoth, Beholder, Carrion Crawler, Displacer Beast, Gauth, Githyanki, Githzerai, Kuo-Toa, Mind Flayer, Illithid, Slaad, Umber Hulk’ and Yuan-Ti.”
So under this heading first forget trademarks – WotC seem to be making the claim that any drawings of the above creatures constitutes a derivative work and therefore infringes their copyright (presumably in their original drawings).
It seems that WotC are asserting that any images of the above creatures constitute derivative works. This seems a bit odd, if you have not actually copied the picture or based your picture directly on one of their published pictures.
I guess WotC are asserting that in some way you are using an image in your mind and making a new image based on that stored mental image – that mental image being based on an image published and owned by WotC (e.g. in a picture in a MM).
It makes me wonder if you described a beholder to someone who has never seen an image of a beholder, and then ask them to make an image of your description, would the resulting image be a new work or be a derivative work (under the definition used by the WotC). After all that person would never had seen a beholder image, therefore how could they have copied anything? I guess you could not then make suggestions on how to change that image, you’d have to accept that image as is.
(5b) I understand that copyright covers actual copying *not* coincidental creation.
For example if two people wrote a poem about snowmen and arrived at the same lyrics by sheer coincidence, both poets have copyright in their poems and would not infringe each others copyright (i.e. no one actually copied anyone).
Therefore, if someone drew an image based on an oral description, would that be a derivative work or not?
(6) Implied licence:
Also, it seems to me that anyone that owns a monster manual (MM) that contains any of the monsters that WotC claim as intellectual property, must have an *implied licence* to use these creatures in RPG gaming (else what else is a Monster Manual for??).
Therefore, it seems reasonable to me that if a module includes a reference to these critters in the MM, e.g. “The room contains 2 creatures listed on page XX of monster manual 2”. In that way, if the person reading that text in that module has a MM2, then it seems reasonable that that person should be entitled (by implied licence) to read and use that information from MM2.
I cannot see how referencing a published work that someone has already purchased can be copyright infringement.
(7) Derivative work from a literary work:
It also strikes me that the copyright in a “literary work” extends to more or less the (exact) printed text used in the MM.
Therefore if you create an individual creatures (falling within that race) using the general stats in a MM, then would that individual infringe the copyright of that general text?
For example if you have a chief baddie called Azullgallumond the Black who is from the race {insert reference to MM1 here}, and you give that particular critter exact details e.g. 76 hit points and you embellish further – e.g. “Azullgallumond is ancient, evil and is the colour of coal and is missing some of his lesser (stalked) eyes. In the centre of this main blinded cloudy white eye sits a single faultless 500 carat blood red ruby, which some say is imbued with magic powers, some say it has the power of a crystal ball of scrying which allows Azullgallumond to keep his evil eyes on his domain. Some say that the cursed ruby is in fact the end of a magic sword or staff that was plunged into Azullgallumond main eye to blind him, others say that simply pulling that sword or staff free of Azullgallumond eye will slay him. Others, say Azullgallumond is not blind, but wears a red lends over his main eye which gives him magic powers. (Note to DM, to make Azullgallumond less challenging to suit your campaign setting have more of his eyes lopped off, however to make Azullgallumond more powerful the gem/lens can have some nasty powers etc , maybe the gem is the tip of a powerful magic wand (which he can use), or maybe Azullgallumond has spread the untrue rumour of his blind eye so enemies underestimate him?).”
None of the above text can be said to be “copied” from a MM, it was just made up now (I dearly hope I’ve not inadvertently regurgitated this from some deep buried memory ????).
Therefore, it seems to be that if you make up specific creatures from the general races listed in MM listings, these detailed creatures cannot surely infringe copyright of that general text.
(8) Fair use of copyright:
Looking a Wikipedia I found this image: en.wikipedia.org/wiki/File:Beholder_(D%26D).JPG
Wikipedia is quite strict about copyright issues and state that this low resolution image (undoubtable taken from MM1) is OK as it constitutes ‘fair use’.
Personally, I’m not sure when use of an image is fair use and when it is not.
(9) Selling or not selling:
I noted that in the pod cast the question of whether giving away a work (i.e. not selling) avoided the issue of copyright infringement.
Looking at the copyright act, it seems that the copyright holder has two options (if they win their copyright legal action) – (1) sue you for the profit you made using their copyright (2) sue you for the damages they incurred by the distribution of your work (in this case a module) . Therefore (2) could be very dangerous – if WotC sue and win under this head, they could assert that they are no longer able to make millions due to damages caused to it by the gift of your free module … :O\
Don’t forget, you might also be liable for legal cost that they and you incurred in any such legal battle (these of course would not be small)!
I suspect that WotC tend win in these kinds of cases as nobody is willing to stick their neck out to find out if WotC are correct or not on this issue.
Is anyone game enough to test this by means of a Kickstarter project (giving away a free module with these ‘protected creatures’ but raising money in a fund to get a legal opinion on these IP issues, and in a later stage as a war chest to deal with any legal battle with WotC???). Of course the correct order in which to proceed would be to get a formal legal opinion on WotC IP rights before distributing any such work. Would enough gamers be willing to part with enough dollars to get such a legal opinion (maybe?), and in that way get some certainty in these matters.
(10) I note on Wikipedia in the US, a parody of a work can be used as a defence to copyright infringement (e.g. en.wikipedia.org/wiki/Fair_use#Fair_use_and_parody and and en.wikipedia.org/wiki/Mad_(magazine)#Court_cases).
Therefore if someone made a ‘Monster Menu’ for the ‘Warlocks of the Eggy Toast’ you might get away with it.
The plot of the parody module being that Monsters have been mysteriously disappearing from the world, such that adventures can no longer slay them, as a bunch of selfish Warlocks (who incidentally live by the seaside) have being intellectually claiming these to be their property, and to be their prey on which they are alone allowed to hunt.
However, there is a myth that you can purchase a hunting license from them, it is said that the Warlocks have a ‘Monster Menu’ (this would be attached to the module, monsters to be included are the Behelder, Mind Failure, Dust Monster, Salaad, Uber Hunk, Sith-hankie … etc)
If a hunting licence can be secured from the Warlock of the Eggy Toast, then these critter are back on the menu, and are released from their bonds of magic red tape and the noble adventure and critter can once more engage in the noble cycle of battle … :O)
**** For the sake of completeness, I add that the above comments are just my musings and should not be taken as any form of legal opinion **** :O)
The sentense before (2) should have read:
“Therefore, I can see no reason why these words used in a module would infringe ***trademark***. If anyone can find these marks please post a reply to this message :O)”
Just to answer the question, brought out in the last ten minutes of this podcast, as to what the hardcover reprints of A1-A4 will actually be reprinting (the original modules OR the super module) I have the answer from Mike Mearles via @mikemearls on Twitter, 1 February:
“originals + new one by skip williams”
The wording of my question was as follows: #REPRINT QUESTION Mike will “Against the Slave Lords” in June be original modules or the Super Scourge of the Slaver Lords? #RPG
Presumably he knows what he is talking about. I thought it was a good question to ask him.