Intellectual Property for Gamers

The biggest piece of news in the RPG world so far in 2023 has been OGL 1.1. Wizards of the Coast announced a revision to the Open Gaming License for Dungeons and Dragons back in December, and then earlier this month a copy of the new license, OGL 1.1, was leaked to the gaming press. As of last week, the full text of the leaked license is available for anyone to read. While the terms of OGL 1.1 are simply worse for third party creators than OGL 1.0a, the previous version of the agreement, the worst part of the whole thing is the attempt to ‘de-authorize’ OGL 1.0a, a move which, if deemed legal, could threaten the futures and possibly even the back catalogs of dozens of creators. With the stakes that high, there has been an outcry on social media directed towards Wizards of the Coast and its parent company Hasbro. Among that outcry, though, is a lot of armchair legal work which is only confusing matters.

There are really only two things that need to be understood about what’s going on with the new version of the OGL. First, OGL 1.1 is a problem for game designers because it gives Wizards of the Coast a lot of control over licensees’ work, and takes away licensing rights which many designers assumed would be there in perpetuity because of the earlier version of the agreement. Second, intellectual property law and contract law, which cover what goes on both in and around the OGL and games affected by it, are both arcane enough that nothing about the new agreement’s legality, applicability, or enforceability is truly known unless a case goes to court. With that said, let’s take a look at intellectual property law and why it’s particularly weird for games.

Intellectual Property 101

In the United States there are three types of intellectual property which are protected by law (trade secrets require the holder to physically protect them to a certain degree in order to have legal standing). These three, trademarks, copyrights, and patents, all affect tabletop games in different ways. A trademark is a distinguishing mark, a ‘word, phrase, or design’ which is used to distinguish the identity of a product, service, or company. “Dungeons and Dragons” is trademarked, and that trademark is owned by Wizards of the Coast. Copyrights apply to ‘artistic, literary, or intellectually created works’ and are widely used for books, music, film, and games, among other things. The text of a Dungeons and Dragons rulebook is copyrighted. A patent is protection for a ‘technical invention’ which is ‘useful, novel, and non-obvious’. This means that your invention has to be something new (novel) which does something that people want (useful) and isn’t able to be thought up off the cuff by someone with experience in the field (non-obvious). Ironically, patents are the thing that make RPG intellectual property so weird.

The process by which one plays a role-playing game, as far as US intellectual property law is concerned, would be patentable, not copyrightable. That said, there has never been (and never will be) a patent on a role-playing game because by the time TSR was founded and the RPG was being productized, fantasy worlds and wargames had been around long enough that it would be very difficult to claim that such a game was novel, or even non-obvious. Similarly, variants on the mechanics of a role-playing game cannot be claimed to be novel or non-obvious, because there isn’t a technical improvement on the game by, say, using a d12 instead of a d20. This is all a good thing, because it means nobody is allowed to claim that they own rolling a d20 or using ability modifiers. Any process by which you play a game is, well, fair game.

While patents apply to the broad technical design of a product or process, copyrights apply to a specific execution of a work. Copying a novel word for word gets you in trouble, but no one can claim copyright on the broader story ideas in that novel. That’s the gray area the RPG falls into, and the reason that someone can write a retroclone: You can use the same mechanics, as long as you write the words to describe said mechanics yourself. This also means you can write supplementary material for someone else’s game, and there’s nothing they can do about it. Well, kind of. The issue with writing supplementary material is that you’re likely to run afoul of the third type of intellectual property, trademark. As many game designers found out early on, it is not legally OK to write “compatible with Dungeons and Dragons” on your book without permission from the Dungeons and Dragons trademark holder. TSR had way more success suing designers for using their trademarks than they did with any other mode of intellectual property protection. As TSR found out, though, chasing off contributors with lawsuits is rarely the best business practice.

A short history of RPG licensing

There are two big issues with intellectual property law for RPG designers. The first is that combined issues with trademark and copyright make following the law, especially if you’re trying to hack or supplement an existing RPG, unclear. The second is that the precedent in the RPG hobby for designers hacking and supplementing existing games is that they get sued into oblivion. TSR was famous for suing creators like Mayfair Games, who got sued for exactly the sort of claims of compatibility I noted above. In 1992 Palladium Books, creators of Rifts, sued Wizards of the Coast over a supplement; WotC actually put the designs for the then-new Magic:the Gathering into a shell company to protect it from the potential fallout of the suit. Palladium, it should also be noted, has a reputation for being viciously litigious, one of the few game designers that actively go after free fan works. All this adds up to a lot of uncertainty for a designer who wants to work within an existing rules ecosystem.

Enter the licensing agreement. A license is a legal contract allowing the use of specific copyrights and/or trademarks, and for RPGs they are a godsend. A good license allows a creator to sidestep much of the legal ambiguity associated with designing RPG materials, while also enabling the original licensor to protect their own copyrighted materials. A license specifies what a creator can and cannot do in a way that the law really doesn’t.

The Open Gaming License was the first generic licensing agreement intended for the RPG community, written by Wizards of the Coast and released alongside the third edition of D&D. What the OGL did was define a subset of the D&D mechanics as ‘open game content’, and placed it in a compilation they called a ‘system reference document’. The license allowed anyone to use this text freely so long as credit was given, and it allowed other designers to define more open game content to distribute as well. It also specified what wasn’t open game content, mostly specific branding and setting material which remained closed and under copyright. While the mechanics of D&D are not copyrightable, the OGL gave access to copyrighted text in the form of the SRD, making it much, much easier for a designer to adapt existing rules without fear of a cease and desist notice or lawsuit. The OGL allowed third party D&D content to flourish, and licensing became a much more standard consideration for game designers than it ever was prior to the OGL’s release.

A few notable things have happened with RPG licensing outside of the OGL specifically. Creative Commons was founded in 2001, after the release of the OGL. In 2009, Eclipse Phase became one of the first role-playing games to use a Creative Commons license in the same way that others were using the OGL. Creative Commons licensing for games has now proliferated, and is likely to become yet more common if current revisions to the OGL stand. In another famous move, Vincent and Meguey Baker included a ‘license’ with the game Apocalypse World, released in 2010. On the Apocalypse World website, they write that anyone using the Apocalypse World mechanics to create games is free to do so, the only restriction being that ‘using our words’ (i.e. directly copying text from the game) is still protected under copyright law. The license also included a request to use a few pieces of trade dress, including the now-infamous descriptor ‘Powered by the Apocalypse’. It’s this mode of licensing, non-restrictive but with identifying trade dress, that has been picked up by the likes of Mork Borg, Troika, Mothership, and others.

Another development in licensing has been the ‘Community Content’ license, spearheaded by Wizards of the Coast and OneBookshelf with the DM’s Guild. Community Content licenses are significantly more restrictive than either the OGL or other open licenses, but generally come with permission to use trade dress, layout resources, setting content that would otherwise be restricted by copyright, and a storefront which is paid for and maintained by the licensor. Community Content programs are a bit expensive (20% royalties, typically) and also tend to have fairly strict reversion policies; while you don’t lose the rights to work you distribute through a Community Content program, exiting the program and removing your work from sale doesn’t actually revoke the license to your work. This is justified as protection for other Community Content creators who may use your work (Community Content licenses typically give permission for creators to use other Community Content in their own work), but it does give the licensor significant rights to the licensee’s work which isn’t present in other licenses.

Until now. The release of OGL 1.1 brings the broader OGL in line with terms already present in the DM’s Guild agreement, giving Wizards of the Coast and Hasbro significant rights to the work of anyone who signs the new license. It also gives them oversight over who can use the license, creating uncertainty and putting the work of direct competitors, like Paizo, in the crosshairs.

What’s going on with the OGL

Despite the title, the current shift in the language from OGL 1.0a to OGL 1.1 is nothing less than a shift from an open license to a closed one. The primary legal mechanism which makes this a closed license is the fact that the licensee now has to sign an agreement and the licensor now has the right to withdraw the license, a right which did not exist in the original OGL. This is by far the most significant problem with the document, because the only way it actually provides the certainty open licenses were designed for is if the licensing terms are irrevocable once a document is so licensed.

There are other issues, of course. Granting Hasbro a license to your work is not something creators want to do, and unlike with the DM’s Guild there isn’t any justification for it. The 25% royalty is extremely high, especially for an agreement where the licensor provides almost nothing compared to similarly expensive Community Content programs. The indemnity clauses are, although not unusual, really rough. Finally, and most galling, the new OGL purports to invalidate the old OGL.

Many of the terms of OGL 1.1 suck, but the “de-authorization” of OGL 1.0a is in legally shaky territory. Ryan Dancey, formerly of Wizards of the Coast and one of the primary architects of the original OGL, has stated outright that that’s not how it works. Whether or not he’s right, though, depends on some fairly byzantine interpretations of the terms of OGL 1.0a which, unfortunately, is not a legally airtight document. Section 9 of OGL 1.0a, the section Dancey and others refer to when they say that Hasbro ‘can’t do that’, states that a licensee may use any ‘authorized’ version of the license. Section 9 hasn’t really been challenged before; the differences between OGL 1.0 and OGL 1.0a are very small, and the license for D&D Fourth Edition, the Game System License, never sought to invalidate the OGL (though it did include some language forcing designers to choose between one or the other). The problem with any interpretation of Section 9 lies in that word ‘authorized’. There is no language in OGL 1.0a that states what ‘authorizes’ a version of the OGL, therefore there is no indication whether the claim that 1.0a is “no longer authorized” is legal. It also somewhat flies in the face of section 2, which states that “No terms may be added or subtracted to this license except as described by the license itself”. This would seem to indicate that there’s no putting the genie back in the bottle for SRDs and other rules already released under OGL 1.0a, no matter what Hasbro says. 

What’s probably going to happen, though, is a bit grimmer. OGL 1.1 is clearly claiming OGL 1.0a is no longer authorized, and Hasbro can afford a lot of lawyers. If they want to start going after people who don’t sign the new agreement, they can. That said, it’s unclear how this is going to play out. If Hasbro wants OGL 1.1 to have any teeth then OGL 1.0a is an obstacle, especially as the Fifth Edition SRD was released under OGL 1.0a and the current plan for the next edition is to maintain backwards-compatibility. Hasbro appears to be digging in their heels with the ‘authorization’ language in OGL 1.1, so the best options a game designer with existing works under OGL 1.0a has are stop selling those games, rework the games to strip out Open Game Content, or lawyer up and sue Hasbro. If nobody does the last option, we likely won’t get any more certainty about whether this license is technically legal beyond Hasbro’s say-so.

Within the gaming sphere which is affected by the changes to the OGL, designers have already begun to take action. Many are removing old OGL products from sale; the sale of OSR darling Whitehack has already been suspended. Both Kobold Press and MCDM Productions, heavy hitters in the third party D&D space, have announced their intent to create new rulesets. Many designers who don’t want to discontinue sales of their work are instead redesigning games to scrub Open Game Content so that they can be rereleased without the OGL. Basic Fantasy is doing this, and is crowdsourcing help to get the game ready for a Creative Commons version. There are moves outside the D&D sphere as well. Pinnacle is getting ready to roll out a new website and provide additional support for third party creators of Savage Worlds materials, and Modiphius has joined the ranks of designers with Community Content programs. Bundle of Holding is currently having a ‘NOGL’ sale of fantasy games which already don’t use the license. Of course, there are also many, many, many games out there which never touched the OGL at all. Chaosium, publishers of Call of Cthulhu among others, tweeted to this effect. Fantasy games like RuneQuest, Warhammer Fantasy, and recently rereleased Rolemaster are all completely free of the OGL. Though Hasbro’s move with OGL 1.1 is a bad one, and it’s going to hurt a lot of creators and gamers in their orbit, it doesn’t need to affect you. Now is a great time to play a new game, and it’s another great day to not support corporate bad actors. That said, Hasbro trying this once means, regardless of what happens, they’re going to try it again. So even if the license gets changed, even if it goes to court and the good guys win, even if 1.1 is abandoned entirely…we know what they want. We shouldn’t support that. So maybe…don’t play D&D?

Thanks to the US Patent and Trademark Office for providing some of the background information in this article.

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4 thoughts on “Intellectual Property for Gamers”

  1. This trademark issue has been one that has bugged me because nominative use of a trademark is well established to be permitted use, so long as it doesn’t potentially lead to consumer confusion as to origin or the like. The TSR v Mayfair suits you’re talking about actually settled before any judgment on the trademark issue could be determined and the follow on suit was actually one over breach of that settlement. If you have citations to other cases, I think it’d be worth sharing them!

    Liked by 1 person

    1. The Palladium v Wizards lawsuit arguably rested on nominative fair use also, it came about because of a system conversion table for the supplement Wizards wrote. And that’s exactly the point I’m trying to make about game designers expecting to get sued…sure, both Mayfair and Wizards could have probably eked out the win in these cases with enough time and money. But even with settling, TSR ended up buying the entire Role Aids line from Mayfair. Meanwhile, Wizards was right to use the shell company to protect their other IP, because they probably would have been driven out of business if it weren’t for GAMA stepping in and getting the two sides to settle.
      This is the environment which has created the pervasive belief that game systems need licenses to allow a third party ecosystem to flourish. Most of the claims, even in the cases that go to court, are either bunk or significantly more minor than the plaintiffs make them out to be. But with game designers being as small as they are (and the modern crop is arguably smaller than they used to be), no one can afford a lawsuit. Hell, fan content policies essentially shouldn’t need to exist, given how the laws work. And yet, here we are.


      1. Thanks for the response! I agree that the current atmosphere doesn’t just not really comport with the actual state of the law, but is actually totally at odds with it. It is an interesting state of affairs because all the cases that are used as guide posts on the relevant issues all actually settled–presumably because the plaintiffs realized how utterly vapid their suits were and were highly incentivized to move towards settlement rather than create a precedent or any estoppel issues that would interfere with their bullying in the market. Nevertheless, as you said, many of the bases of these actions seem, to me at least, to be trivially shown to be deficient and I don’t think most suits would be all the expensive on defendant’s side because the complaint wouldn’t be sufficient for overcoming an immediate motion to dismiss under current pleading standards.

        Liked by 1 person

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