For those who have had their Internet access cut off for the last 48 hours or so, there seems to be an important test case on the horizon regarding the role of IP law, the OGL, and how it is applied by publishers and hobbiests. It’s been discussed on Grognardia, Bat in the Attic, Underdark Gazette, Joethelawyer’s Wonderous Imaginings, and a bunch of other places besides (the comments in all of those posts I just linked to are all well worth reading). I am not a lawyer, but I’ve done some research on these issues over the years, and I have a few thoughts on the subject. Naturally this isn’t legal advice, ask your own lawyer before doing anything, etc.
First and foremost, folks seem to have a problem separating some of the issues. It’s a natural tendency to try to conflate things, but from a legal standpoint, some of these issues are distinct from one another.
In addition, there is the question of copyright vs. trademark. Copyright refers to text. This post I’m writing now is copyrighted by me. Even if I didn’t say so, and didn’t include a copyright notice, US law holds that an author owns the copyright of the words he writes, unless he has a contract that states what he writes belongs to someone else (or some company). Trademark refers to an identifiable title, logo, brand name, etc. The description of the spell “magic missile” in the Player’s Handbook is protected by copyright. The name “Dungeons & Dragons” is a protected trademark.
By the way, using someone else’s copyright or trademark has nothing to do with making money from it. If you copy the Dungeon Masters Guide verbatim, and then give it away for free, it is just as illegal as if you were charging $5 a pop. Non-profit status is irrelevant when it comes to copyright and trademark infringement.
You are allowed to use someone else’s trademark to indicate compatibility. It is settled law in the US that you are allowed to say things like “compatible with Monopoly”, as long as you indicate someplace that Monopoly is a trademark of Parker Brothers. Similarly, you’re allowed to say “For use with Dungeons and Dragons”, as long as you say that Dungeons and Dragons is a trademark of Wizards of the Coast. Mayfair Games proved that specifically in court, when TSR sued them and lost. However…
The OGL comes with certain restrictions. If you choose to use the OGL to publish a given piece of work, you cannot use terms like “Dungeons & Dragons”, “Dungeon Master”, “Mind Flayer”, “Carrion Crawler”, etc. It’s written right in the license. By publishing under the OGL, you give up the right to use those phrases, and you explicitly give up the right to say “Compatible with Dungeons and Dragons”. It says so right in the license you copied and pasted into your product.
Trade dress is a really tricky subject, because it’s so subjective. Trade dress refers to the way a given product looks; if all of your products have a distinctive look, that’s your trade dress and nobody else can use it, because consumers would be confused as to whose product it is. If your module looks just like a WotC module, but in teeny tiny print it says “Made by Fred’s Game Company”, you’re violating their trade dress. And, by the way, that’s something else that is explicitly not allowed in the OGL.
The question becomes, how long do you have to *not* use a particular trade dress before someone else is allowed to use it? A lot of companies (and I myself) have used trade dress that is *really* close to that used by TSR in the 1970’s and 1980’s. I’m willing to bet that ship has sailed, and WotC would be unable to sue based solely on that issue because that particular trade dress has been used so widely by others, but remember trade dress is not the same as trademark. Just because I use 30 year old trade dress doesn’t suddenly mean that I can plunder someone else’s trademark (like the name “Dungeons & Dragons”) and use it indiscriminently. Saying “compatible with…” is one thing, and allowed. Plastering it in 144 point type across the top of a module is something else again.
Now, another question (albeit not one that pertains to the current issue with Die Cast Games, but what the heck– I’m on a roll) is whether or not the OGL allows you to publish retro-clones. Obviously, this isn’t a case that’s ever been settled, and as far as I know WotC hasn’t ever tried to say that the OGL *doesn’t* allow such things, but be aware that the OGL allows you to create works based on what’s in the SRD. If it’s not in the SRD, it’s supposed to be your own original work. What most of the simulacra have done, as far as I can tell, is try to skirt the issue by hybridizing what’s allowed under the OGL (core mechanics such as hit points, levels, spells, classes, etc.) with the principle that game rules are algorithms and cannot be copyrighted. So they take what they want from the SRD, and fill in the rest with non-copyrightable material from earlier games. Personally, I think that’s a perfectly valid approach, but a judge might see things differently if it ever came to that.
And, equally personally, I am on the fence as to whether I want to use the OGL for my own Adventures Dark and Deep™ game. On the one hand, it does give legal “cover”, so to speak, and also allows me to use material that other authors have written under its auspices. On the other hand, it does prevent me from indicating compatibility with Advanced Dungeons & Dragons, which might be a very useful thing, as well as having to lose things like mind flayers and displacer beasts. Thus, I’m on the fence at this time.
Anyway, I hope I didn’t muddle things too much with this, but that’s my own understanding of what’s at work here, for what it’s worth.
UPDATE: I am reminded that OSRIC does indeed use the OGL.