Seriously, though, an OGL question for the gallery. Section 7 of the OGL reads:
Use of Product Identity: 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. You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such Trademark or Registered Trademark. The use of any Product Identity in Open Game Content does not constitute a challenge to the ownership of that Product Identity. The owner of any Product Identity used in Open Game Content shall retain all rights, title and interest in and to that Product Identity.
I read that to mean that a publisher cannot publish a given work under the authority of the OGL and say “this is compatible with game X” without the express written permission of the owner of the trademark of that game’s name. All fine and well.
But what would happen if, hypothetically, a publisher published a work under the authority of the OGL, including the text and so on, but then published a second work, without the OGL, that said, in effect, “product A is compatible with game X”. Would the fact that the second work was not published under the OGL allow said publisher to do so?
A hypothetical example, to illustrate the point.
- Krazy Kobold Games publishes a retro-clone game called Awesome Adventures under the Open Game License. They include the text of the license in the rulebook, just like they’re supposed to.
- Villainous Vulture Games publishes an adventure module that is compatible with Awesome Adventures under the Open Game License, including the text of the license in the module like they’re supposed to. Because they don’t have permission from Krazy Kobold Games to say it’s compatible, they do not say so on the cover or in the text of the module itself.
- Villainous Vulture Games then publishes a catalog of their offerings. The catalog is not published under the OGL, because it in and of itself does not use any Open Game Content. In the catalog, they say “Buy our adventure module, fully compatible with Awesome Adventures!”.
Bearing in mind that the question of whether saying something is “compatible with” another game has already been decided by the courts, and has been deemed to be perfectly legal from a copyright/trademark point of view, has Villainous Vulture Games violated the terms of the OGL by indicating compatibility without permission, even though the means by which they indicated such compatibility was not, in and of itself, published under the terms of the OGL?
Bonus points to the answers of anyone who is actually a lawyer, and double bonus to anyone who’s a copyright lawyer or has previous experience with the OGL.