3.5 Edition OGL

Post/Author/DateTimePost
#1

toryn

Sep 28, 2008 17:52:32		I don't know if this is the right place for this, but I was wondering about a few things.

1.) Where can I obtain the most recent version of the 3.5 OGL?

and

2.) Does it only obtain to the "core" books, or if I were to create a setting/adventure, could my NPCs use spells and equipment from other books such as Magic Item Compendium and Spell Compendium?

I ask this mostly because I am writing a 3.5 book, and needed to know before I bust my butt trying to get it done. Also, with 4th edition being the new flavor, is the license still in effect?

Thanks for any input.

:D
#2

kursk

Sep 28, 2008 19:02:53 		http://everything2.com/e2node/Open%2520Game%2520License%2520Version%25201.0a
#3

Webster

Sep 28, 2008 20:47:34
2.) Does it only obtain to the "core" books, or if I were to create a setting/adventure, could my NPCs use spells and equipment from other books such as Magic Item Compendium and Spell Compendium?

It also has items from Unearthed Arcana. Having said that, put the books down. You may only use items in the SRD, not what's in the books as they are slightly different.
#4

toryn

Sep 28, 2008 20:56:13 		Thanks guys and gals.
#5

digital_thaumaturgy_dup

Sep 28, 2008 23:14:06
Also, with 4th edition being the new flavor, is the license still in effect?

The OGL v1.0a is in effect, and will always be in effect, for information included in the SRD (and specifically added to the open content covered by that agreement via third party publishers). However, and this is the important bit, the new GSL governs material that can be used to produce products for 4e, and the OGL is in no way applicable to 4e.
#6

ChrisTheS

Sep 28, 2008 23:25:44
and the OGL is in no way applicable to 4e.

Except insofar as it's possible to replicate many of 4e's mechanics using Unearthed Arcana, of course...
#7

digital_thaumaturgy_dup

Sep 29, 2008 0:19:14
Except insofar as it's possible to replicate many of 4e's mechanics using Unearthed Arcana, of course...

Your point being what exactly?

That certain open content can replicate some 4e mechanics does not mean that a work based on that open content is applicable to 4e. We're discussing use of the OGL to publish works. Your statement is like saying that an expansion for Axis and Allies is applicable to Risk because they both use a finite number of D6s to resolve combats.
#8

kythri

Sep 29, 2008 8:09:40
It also has items from Unearthed Arcana. Having said that, put the books down. You may only use items in the SRD, not what's in the books as they are slightly different.

Can you cite this? I ask, because the OGL says nothing about only using the SRD.

If it was published in the book, and the book designates it as Open Game Content, then you can use it and use it from the book. The SRD is simply a collection of Open Game Content that was published by WotC.

It doesn't matter if it's expressed differently in the SRD or even listed in the SRD at all - there's no restriction on only using the content of the SRD. The restriction is that you can only Open Game Content, content that you specifically hold a license for, and your own original content.

Not that the SRD is a bad place to start, by any means, but you are NOT restricted to it.
#9

ChrisTheS

Sep 29, 2008 11:38:45
Your point being what exactly?

Just saying that with a little effort it would be possible to make a product compatible with either or both editions just using the SRD. A point of interest, that's it. No need to get snippy about it.
#10

digital_thaumaturgy_dup

Sep 29, 2008 13:08:10
Just saying that with a little effort it would be possible to make a product compatible with either or both editions just using the SRD. A point of interest, that's it. No need to get snippy about it.

The discussion is about using the OGL, not the SRD. The OGL governs use of "open game content", which includes the SRD. Attempting to use the OGL and SRD instead of the GSL to produce a product compatible with 4e is a sure way to financial sodomy at the hands of WotC's lawyers.
#11

ChrisTheS

Sep 29, 2008 13:16:35 		And I pointed out, quite truthfully, that you COULD use the OGL and SRD to publish something that worked with 4e, based on Wizards' own open content. This is fact. Whether or not it would be a good idea is up to individual circumstances. WotC is only likely to sue if it thinks that it has something substantial to gain by doing so or something substantial to lose by not doing so. If the work in question is too insignificant to impact their bottom line, they likely won't bother - it isn't worth the effort and expense.

Look, I just raised a point that I thought was interesting. That's it. If you don't think it's interesting, just ignore it - you don't have to trod all over it in hobnail boots.
#12

digital_thaumaturgy_dup

Sep 29, 2008 13:33:28
And I pointed out, quite truthfully, that you COULD use the OGL and SRD to publish something that worked with 4e, based on Wizards' own open content. This is fact.

How, without also entering into the GSL?

Whether or not it would be a good idea is up to individual circumstances. WotC is only likely to sue if it thinks that it has something substantial to gain by doing so or something substantial to lose by not doing so. If the work in question is too insignificant to impact their bottom line, they likely won't bother - it isn't worth the effort and expense.

What individual circumstances make it alright to commit trademark infringement?

Look, I just raised a point that I thought was interesting. That's it. If you don't think it's interesting, just ignore it - you don't have to trod all over it in hobnail boots.

There is no point raised here, because what you are saying is not possible in the context of publishing the finished product, which is what this whole thread is about.
#13

kythri

Sep 29, 2008 13:43:06
How, without also entering into the GSL?

You have to agree to the GSL to be bound by it's terms. It's not hard to envision a product that uses Open Game Content, abides by the OGL, and is compatible with the 4E mechanics.

What individual circumstances make it alright to commit trademark infringement?

Trademark infringement is wrong. The rules are not trademarked (nor can they be, because a trademark is a completely seperate thing from copyright). A statement of compatibility is not infringement, nor is it dilution, of the trademark.

There is no point raised here, because what you are saying is not possible in the context of publishing the finished product, which is what this whole thread is about.

And, you're wrong. Exactly how and why you're wrong has been pointed out in a number of threads explaining all about trademark, copyright and patents.
#14

ChrisTheS

Sep 29, 2008 13:50:51
How, without also entering into the GSL?

By not using the '4e statement of compatibility' logo. The GSL only pertains to 4e's trademarks, which do not include the ruleset itself. So as long as a product avoids use of 4e's trademarks and describes the (SRD-derived) mechanics in its own words or the words of the SRD (since the OGL allows covered text to be copied verbatim), it's not infringing anything. This DOES make it possible to create 4e-compatible products using the OGL and the SRD - however, your ability to market them as such is limited without the GSL.

This pertains to the topic also because it means that the potential 3.5 publisher does not have to tiptoe around anything that might arise in 4e for fear of legal retribution, because it is largely possible to derive 4e material from the SRD - so if anything does get challenged, they can provide documentation from available open game content that supports them. The OGL is still a carte-blanche for largely unrestricted game development, regardless of the current state of the D&D property.
#15

digital_thaumaturgy_dup

Sep 29, 2008 14:22:36
You have to agree to the GSL to be bound by it's terms. It's not hard to envision a product that uses Open Game Content, abides by the OGL, and is compatible with the 4E mechanics.

It really is (from my reading of the OGL and GSL at least). I could be wrong; I have been before.

Trademark infringement is wrong. The rules are not trademarked (nor can they be, because a trademark is a completely seperate thing from copyright). A statement of compatibility is not infringement, nor is it dilution, of the trademark.

I did not say the rules were trademarked, and I am aware that they cannot be, just like they cannot be protected by copyright except in their "specific artistic expression" or whatever the exact legal wording is.

However, since WotC created a trademark (of which they allow royalty-free usage) to denote compatibility (the Compatibility Logo, which they presumably intend to use as marketing for their own Core Books much like they did with the d20 logo and former "requires the use of..." text), it could be argued that any other method of denoting compatibility is infact a dilution of that trademark.

And, you're wrong. Exactly how and why you're wrong has been pointed out in a number of threads explaining all about trademark, copyright and patents.

Thread references please?
#16

digital_thaumaturgy_dup

Sep 29, 2008 14:31:19
By not using the '4e statement of compatibility' logo. The GSL only pertains to 4e's trademarks, which do not include the ruleset itself. So as long as a product avoids use of 4e's trademarks and describes the (SRD-derived) mechanics in its own words or the words of the SRD (since the OGL allows covered text to be copied verbatim), it's not infringing anything. This DOES make it possible to create 4e-compatible products using the OGL and the SRD - however, your ability to market them as such is limited without the GSL.

This pertains to the topic also because it means that the potential 3.5 publisher does not have to tiptoe around anything that might arise in 4e for fear of legal retribution, because it is largely possible to derive 4e material from the SRD - so if anything does get challenged, they can provide documentation from available open game content that supports them. The OGL is still a carte-blanche for largely unrestricted game development, regardless of the current state of the D&D property.

Emphasis mine.

This is the passage I am having trouble with. The terms used in 4e are defined differently than they were in the old SRD. In effect, they are new terms. The argument will be made, if indeed it's ever necessary to make it, that the new mechanics are not a derivative work based on the contents of the old SRD, but are themselves a wholly new work.

Obviously, WotC is hoping the courts will see it this way if it becomes an issue.
#17

ChrisTheS

Sep 29, 2008 14:35:33
However, since WotC created a trademark that they allow royalty-free usage of to denote compatibility (the Compatibility Logo, which they presumably intend to use as marketing for their own Core Books much like they did with the d20 logo and former "requires the use of..." text), it could be argued that any other method of denoting compatibility is infact a dilution of that trademark.

That's true, although in the past 3rd-party publishers have found ways around the compatibility statement regulations for the OGL/d20SL. However, it should be noted that KenzerCo put out a 4e-compatible book and said it was 4e compatible, and Wizards hasn't sued them yet - so saying that even attempting it is a surefire way to get served is, at the very least, an exaggeration. The pilot fish might be in real trouble if the shark decided it would be good eating, but as long as the fish remains beneath the shark's notice (not impacting the bottom line, in other words) it's hardly worth the shark's effort.

Also, viz. trademark/copyright/patent law, I suggest looking it up yourself - a quick Google search will reveal some very good and informative sources that are likely to be more accurate than most of what you can find here (the threads on the topic around here are lousy with misconceptions). The summary is, trademark applies to anything that is specifically called out as a trademark in the legal statements on the books' credits pages. Copyright applies to the exact text, art, and formatting/trade dress of the books. Patent law would cover the actual rules, if they held a patent on them, which they don't, so technically the rules are fair game for anyone as long as the limitations of trademark and copyright law are respected.
#18

ChrisTheS

Sep 29, 2008 14:47:45
This is the passage I am having trouble with. The terms used in 4e are defined differently than they were in the old SRD. In effect, they are new terms.

The terms are not new - the definitions are. That's an important legal distinction, because terms aren't generally covered by copyright and, at least under the OGL, definitions can be altered. And if the publisher could provide a paper trail that showed their definition could have been derived from an open source (just citing a single piece of open game content would do it), they'd be in the clear. However, such would only come into play if there were a clear case of trademark infringement (which is easy to avoid if you know what the trademarks are), since presumably such a publisher would only plagiarize the things that the OGL allows to be plagiarized (thus taking copyright infringement out of the picture).

Obviously, WotC is hoping the courts will see it this way if it becomes an issue.

I think it's more like WotC is hoping that third-party publishers will be ignorant of the intricacies of the law and will thus be too paranoid to even attempt it. The fact of the matter is, if they ever DID take someone to court, they would probably win by default because they have more money and thus can afford to drag the issue out until their opponent has to either settle or declare bankruptcy (or both). However, this wouldn't be a terribly good use of their time and money unless the publisher in question was greatly impacting their bottom line.
#19

digital_thaumaturgy_dup

Sep 29, 2008 14:49:39
That's true, although in the past 3rd-party publishers have found ways around the compatibility statement regulations for the OGL/d20SL. However, it should be noted that KenzerCo put out a 4e-compatible book and said it was 4e compatible, and Wizards hasn't sued them yet - so saying that even attempting it is a surefire way to get served is, at the very least, an exaggeration. The pilot fish might be in real trouble if the shark decided it would be good eating, but as long as the fish remains beneath the shark's notice (not impacting the bottom line, in other words) it's hardly worth the shark's effort.

It's true that something published by a hobby publisher would go unnoticed by WotC, but assuming that their anonymity as far as WotC is concerned will protect one who disregards WotC's rights is flirting with disaster.

Also, viz. trademark/copyright/patent law, I suggest looking it up yourself - a quick Google search will reveal some very good and informative sources that are likely to be more accurate than most of what you can find here (the threads on the topic around here are lousy with misconceptions). The summary is, trademark applies to anything that is specifically called out as a trademark in the legal statements on the books' credits pages. Copyright applies to the exact text, art, and formatting/trade dress of the books. Patent law would cover the actual rules, if they held a patent on them, which they don't, so technically the rules are fair game for anyone as long as the limitations of trademark and copyright law are respected.

I'm aware of what the main types of legal protection available to creative works are (I'm a creative professional after all :D ). I was under the impression that a patent had been applied for to cover the rules of the 4e system, but because of the snail's pace at which the patent office moves the application had not been granted yet.

And if I wanted to quibble, I could point out that trade dress is often covered by trademark protection :P .
#20

digital_thaumaturgy_dup

Sep 29, 2008 15:05:39
The terms are not new - the definitions are. That's an important legal distinction, because terms aren't generally covered by copyright and, at least under the OGL, definitions can be altered. And if the publisher could provide a paper trail that showed their definition could have been derived from an open source (just citing a single piece of open game content would do it), they'd be in the clear. However, such would only come into play if there were a clear case of trademark infringement (which is easy to avoid if you know what the trademarks are), since presumably such a publisher would only plagiarize the things that the OGL allows to be plagiarized (thus taking copyright infringement out of the picture).

Terms and their definitions do not exist independently of one another. In a legal document, many terms have accepted meanings that do not need to be clearly spelled out in the document. An SRD is not a legal document however. The term "base attack bonus" has no absolute or legal meaning and therefore must be defined in the document in question. That "base attack bonus" is defined one way in the old SRD and another way in the new game makes them independent of one another, with meaning only in the context of their relative systems.

I think it's more like WotC is hoping that third-party publishers will be ignorant of the intricacies of the law and will thus be too paranoid to even attempt it. The fact of the matter is, if they ever DID take someone to court, they would probably win by default because they have more money and thus can afford to drag the issue out until their opponent has to either settle or declare bankruptcy (or both). However, this wouldn't be a terribly good use of their time and money unless the publisher in question was greatly impacting their bottom line.

Emphasis mine.

This I doubt greatly. Corporations (at least well-run ones) do not rely on the ignorance of those they may come into legal conflict with to protect them from those conflicts. Further, history shows WotC that this is not the case. Even if they DID in the past rely on the ignorance of third-party publishers, they probably wouldn't do that again, what with Arcana Unearthed, Mutants & Masterminds, True20, etc now on the market in direct opposition to what that ignorance would have dictated is possible.
#21

ChrisTheS

Sep 29, 2008 15:12:46
It's true that something published by a hobby publisher would go unnoticed by WotC, but assuming anonymity as far as they are concerned will protect one who disregards their rights is flirting with disaster.

Hence why I said that whether it's worth the risk or not is down to personal preference. Some will say it is, some will say it isn't.

I was under the impression that a patent had been applied for to cover the rules of the 4e system, but because of the snail's pace at which the patent office moves the application had not been granted yet.

First I've heard of it, and I very much doubt they'd get it - but regardless, even if it became covered by patent, the base d20 rules would still be fair game (even if they patented those too, the OGL permits their free and unrestricted use) and if the paper trail from open game content could still be shown, it would be down to WotC's word against the developer's that the work was derivative of the 4e mechanics and not the 3e ones.

Terms and their definitions do not exist independently of one another. In a legal document, many terms have accepted meanings that do not need to be clearly spelled out in the document. An SRD is not a legal document however. The term "base attack bonus" has no absolute or legal meaning and therefore must be defined in the document in question. That "base attack bonus" is defined one way in the old SRD and another way in the new game makes them independent of one another, with meaning only in the context of their relative systems.

And the fact that the term can be used independent of context means that a publisher is relatively free to use the term to imply either one, or even to make up a new definition for it. If we're talking just compatible products and not attempting to completely rehash the system, the implication is generally sufficient.

This I doubt greatly. Corporations (at least well-run ones) do not rely on the ignorance of those they may come into legal conflict with to protect them from those conflicts.

Actually, they do it quite a lot. I know of a few cases where a big company used cease-and-desist notices to bully smaller groups into staying away from their territory, even though upon investigation the company actually had no grounds for a suit. Intimidation can be a valuable tool: if you can get someone to do what you want with just the cost of postage, you don't have to deal with the substantial cost of taking them to court and potentially being ruled against.

Not saying that Wizards WOULD actually do that, but I have experience (fortunately not first-hand) that suggests it isn't all that unusual.
#22

ranger_reg

Sep 29, 2008 16:21:09
The OGL v1.0a is in effect, and will always be in effect,...

So's OGL v1.0.
#23

ranger_reg

Sep 29, 2008 16:26:31
A statement of compatibility is not infringement, nor is it dilution, of the trademark.

You have to be very careful how you worded the statement of compatibility, ESPECIALLY if you choose to use the OGL (see Section 7 in its entirety).
#24

kythri

Sep 29, 2008 16:43:13
It really is (from my reading of the OGL and GSL at least). I could be wrong; I have been before.

OK, so, let's break this down:

You can use any Open Game Content released under the OGL right now, this very second, without agreeing to the GSL, but abiding by the terms of the OGL. Do you agree?

You can use the 4E rules (to which trademark does not apply (rules aren't a "mark") and which cannot be copyrighted) provided you present them in a way that doesn't infringe on WotC's artistic expression of those rules. Do you agree?

If both of the above are accurate, then combining the two gives you a 4E-compatible product that utilizes Open Game Content.

I did not say the rules were trademarked, and I am aware that they cannot be, just like they cannot be protected by copyright except in their "specific artistic expression" or whatever the exact legal wording is.

However, since WotC created a trademark (of which they allow royalty-free usage) to denote compatibility (the Compatibility Logo, which they presumably intend to use as marketing for their own Core Books much like they did with the d20 logo and former "requires the use of..." text), it could be argued that any other method of denoting compatibility is infact a dilution of that trademark.

You could argue it, but it wouldn't hold up. As long as a 3PP isn't actually using the logo, isn't attempting to present the product as an work of another publisher, and simply puts a text statement on their product stating compatibility, then they've not infringed or diluted. This is done ALL the time - look at the plethora of iPod accessories on the market for a particularly blatant example. A supplementary or complementary work is allowed very limited use of the trademarked phrase or brand name to advertise compatibility.

A successful trademark dilution argument requires proof that the trademark has somehow become devalued or that the average person will be confused by the supposed offensive use. A publication with a big "KENZER & COMPANY" trademark and logo on it, and a small text blurb stating "For use with the 4th Edition of Dungeons & Dragons" isn't going to confuse anyone but the well below average person.

Visit Kenzer & Company's website for a preview of the For-use-with-4E KoK Campaign Setting preview to see what I'm talking about.

Thread references please?

Go look at several of the recent threads in this GSL forum.
#25

kythri

Sep 29, 2008 16:48:17
It's true that something published by a hobby publisher would go unnoticed by WotC, but assuming that their anonymity as far as WotC is concerned will protect one who disregards WotC's rights is flirting with disaster.

Referring to Kenzer as a "hobby publisher" hiding behind their "anonymity" is rather disingenuous. If any 3PP is more known to WotC than Kenzer, I'd be rather surprised.

And if I wanted to quibble, I could point out that trade dress is often covered by trademark protection :P .

Rules wouldn't be covered under trade dress. Trade dress is the "look and feel" of a product.
#26

kythri

Sep 29, 2008 16:51:26
I think it's more like WotC is hoping that third-party publishers will be ignorant of the intricacies of the law and will thus be too paranoid to even attempt it.

I don't think there's any "evil motive" in this case. I think, rather, that WotC hopes that 3PPs will consider the use of the GSL logo (which contains the D&D logo) will be enough of an incentive to forgo their already availble rights to certain terms and such and assign those rights to WotC in trade for the use of the logo.
#27

kythri

Sep 29, 2008 16:56:22
You have to be very careful how you worded the statement of compatibility, ESPECIALLY if you choose to use the OGL (see Section 7 in its entirety).

Doh.

My bad.

Use of Open Game Content released under the OGL does seem preclude you from making an explicit statement of compatibility with the trademarked name of the product.

Good call, my man.

However, were one not to utilize the OGL, then that statement could still be made - and has been pointed out, unless you sign the GSL, you have rights equal to WotC's for use of terms like "wizard" and what not.

Conversely, one could utilize the OGL, produce a 4E compatible work, and just not make the statement, and instead, make the statement that many OGL publishers did, to the effect of "Compatible with the 4th Edition of the World's Most Popular Fantasy Role Playing Game" or something similar.
#28

Nylanfs

Sep 29, 2008 19:24:06
Can you cite this? I ask, because the OGL says nothing about only using the SRD.

If it was published in the book, and the book designates it as Open Game Content, then you can use it and use it from the book. The SRD is simply a collection of Open Game Content that was published by WotC.

It doesn't matter if it's expressed differently in the SRD or even listed in the SRD at all - there's no restriction on only using the content of the SRD. The restriction is that you can only Open Game Content, content that you specifically hold a license for, and your own original content.

Not that the SRD is a bad place to start, by any means, but you are NOT restricted to it.

Kythri, this is an important distinction. The only book that WotC published under the OGL (& d20) license was Unearthed Arcana. The PHB, DMG and MM, are not OGL. Which causes a pain because any errata for the core books isn't technically OGL until it gets included into the SRD. Which is kinda nice in the way that the 4e is done in that the SRD is only an index to the OGL material so the errata is automatically able to be used by 3pp.

And I also believe that Webster was refering ONLY to WotC books, not any other books from 3pp published under the OGL (or d20/OGL).
#29

kythri

Sep 29, 2008 19:32:04 		Interesting - I had my 3.5 PHB here with me, and it does say that nothing in the book is presented as Open Game Content.

What about the 3.0 books?

Not trying to pick a nit, I'm honestly curious, now. I could have sworn that the PHB had a copy of the OGL printed in it, and what not, but I'm obviously mistaken, at least in regards to the 3.5 PHB.
#30

toryn

Sep 29, 2008 20:11:08 		Thanks for all of the input guys and gals. Although I like some of the things in 4th edition, like the new paladin and warlock, my original vision was for the product to be 3.5 compatible, not 4e compatible.

That being said, is the SRD the only thing WOTC designated as OGL, or if I were to create an NPC that uses the spell Wraith Strike from Complete Adventurer, for example, would I not be able to because of the OGL? I really like some of the variant abilities in alot of the other books that the SRD does not offer, and was really the most curious about this part. I have made several characters, and if that is the case, I would probably have to rewrite most of the NPCs' spell lists.

Also, if I were to instead designate it as "for use with the 3.5 D&D game published by WOTC, would that be sufficient? I have some 3rd party material published by other companies as well, and most of them say something along those lines, without the d20 logo.

I apologize if this is a bit long winded, but wanted to ask the community what their thoughts and opinions were before I took a copy of the 3.5 OGL to a lawyer in order to get his or her insight. Thanks again.:D
#31

digital_thaumaturgy_dup

Sep 30, 2008 0:12:05
OK, so, let's break this down:

You can use any Open Game Content released under the OGL right now, this very second, without agreeing to the GSL, but abiding by the terms of the OGL. Do you agree?

Yes.

You can use the 4E rules (to which trademark does not apply (rules aren't a "mark") and which cannot be copyrighted) provided you present them in a way that doesn't infringe on WotC's artistic expression of those rules. Do you agree?

Yes.

If both of the above are accurate, then combining the two gives you a 4E-compatible product that utilizes Open Game Content.

This does not speak to the actual point: using the OGL to produce a product for publication, then claiming compatibility with a WotC trademark except as they specifically say is ok can get one in very hot water.

You could argue it, but it wouldn't hold up. As long as a 3PP isn't actually using the logo, isn't attempting to present the product as an work of another publisher, and simply puts a text statement on their product stating compatibility, then they've not infringed or diluted. This is done ALL the time - look at the plethora of iPod accessories on the market for a particularly blatant example. A supplementary or complementary work is allowed very limited use of the trademarked phrase or brand name to advertise compatibility.

A successful trademark dilution argument requires proof that the trademark has somehow become devalued or that the average person will be confused by the supposed offensive use. A publication with a big "KENZER & COMPANY" trademark and logo on it, and a small text blurb stating "For use with the 4th Edition of Dungeons & Dragons" isn't going to confuse anyone but the well below average person.

Actually, it might hold up, and here's why.

The value of the Compatibility Logo lies in it being the way that people recognize products as compatible with 4e. Thus the existence of a different avenue to reach the same conclusion (that a product is compatible with 4e) lessens the Compatibility Logo's value by making it unnecessary for one of its intended purposes.

To give this argument a evidentiary basis, all WotC needs to do is produce lower than projected sales numbers and an expert or ten to testify that those numbers are lower than they would have been had the work in question used the Compatibility Logo rather than intentionally circumventing it. This argument gets easier to make as the market share of the publisher using a means other than the Compatibility Logo to denote compatibility increases.

Further, one could also argue that the dilution to the Compatibility Logo was willful, since there is no cost associated with its use. That argument wouldn't hold up, but it'd be a fun time suck.

Referring to Kenzer as a "hobby publisher" hiding behind their "anonymity" is rather disingenuous. If any 3PP is more known to WotC than Kenzer, I'd be rather surprised.

I did not say that Kenzer was a hobby publisher, or that they hid behind their anonymity. The line you are responding to was directed specifically to ChrisTheS' mention of publishers that would remain below WotC's radar, as it were, not more mainstream publishers like Kenzer. I'm not referring to Kenzer as a hobby publisher, but rather to actual hobby publishers who's activities WotC might remain oblivious to.

Rules wouldn't be covered under trade dress. Trade dress is the "look and feel" of a product.

Show me where I said that rules were a part of trade dress. Again, the trade dress remark was a joking response specifically made to something said by ChrisTheS.

Thanks for all of the input guys and gals. Although I like some of the things in 4th edition, like the new paladin and warlock, my original vision was for the product to be 3.5 compatible, not 4e compatible.

That being said, is the SRD the only thing WOTC designated as OGL, or if I were to create an NPC that uses the spell Wraith Strike from Complete Adventurer, for example, would I not be able to because of the OGL? I really like some of the variant abilities in alot of the other books that the SRD does not offer, and was really the most curious about this part. I have made several characters, and if that is the case, I would probably have to rewrite most of the NPCs' spell lists.

Also, if I were to instead designate it as "for use with the 3.5 D&D game published by WOTC, would that be sufficient? I have some 3rd party material published by other companies as well, and most of them say something along those lines, without the d20 logo.

I apologize if this is a bit long winded, but wanted to ask the community what their thoughts and opinions were before I took a copy of the 3.5 OGL to a lawyer in order to get his or her insight. Thanks again.:D

All material that WotC has contributed as open content is found in the SRD. Further open content can be found by perusing various third-party products and reading each product's assignment of open content, closed content and intellectual property. Also, section 15 of each third-party work's OGL is a good source to find other products that used open content, since each publisher that uses open content has to cite the source of that open content here.

As to how to designate compatibility for the work you intend to publish, there is specific legal language and text required if you intend to use the d20 logo or any mention of the Dungeons & Dragons brand. Look at the d20 license FAQ and the actual d20 System Trademark License for the specifics.
#32

toryn

Sep 30, 2008 10:02:18 		Thank you so much.
#33

kythri

Sep 30, 2008 10:20:08
This does not speak to the actual point: using the OGL to produce a product for publication, then claiming compatibility with a WotC trademark except as they specifically say is ok can get one in very hot water.

I misread, and got confused regarding OGL and a statement of compatibility.

My original statement, however, holds true. It isn't impossible, nor is it hard, to produce a work under the OGL that is compatible with 4E. You just can't make that statement of compatibility with the actual trademark.

Actually, it might hold up, and here's why.

The value of the Compatibility Logo lies in it being the way that people recognize products as compatible with 4e. Thus the existence of a different avenue to reach the same conclusion (that a product is compatible with 4e) lessens the Compatibility Logo's value by making it unnecessary for one of its intended purposes.

So, if one were to create a competing logo (say, a gigantic stylized numeral 4), and an ad-blitz in the target market associating said logo with compatibility to the product that the logo-using work supplements, this also lessens the Compatibility Logo's value.

Taking another tack, that's like arguing that White Wolf's World of Darkness competes with D&D, and that it's existance devalues D&D - if it didn't exist, D&D would likely see more business.

A statement of compatibility is not an infringement of the trademark or of a copyright. Such use is explicitly permitted. This is why delivery service company such as DHL can run an advert on TV showing a FedEx and UPS truck (and I'd note that they've utilized the full trade dress and trademarked logoing), or that Coke can show the Pepsi trademarks in an ad.

A statement of compatibility isn't even going that far. It's advertising that this is a supplemental work for another product.

If a supplemental work is legal to produce, then it has to be legal for one to advertise that connection to the work that it supplements, otherwise competition would be stifled.

To give this argument a evidentiary basis, all WotC needs to do is produce lower than projected sales numbers and an expert or ten to testify that those numbers are lower than they would have been had the work in question used the Compatibility Logo rather than intentionally circumventing it. This argument gets easier to make as the market share of the publisher using a means other than the Compatibility Logo to denote compatibility increases.

Further, one could also argue that the dilution to the Compatibility Logo was willful, since there is no cost associated with its use. That argument wouldn't hold up, but it'd be a fun time suck.

But, the Compatibility Logo is not the work being sold, so arguing dilution of that logo is invalid. The product being sold is D&D. The argument would have to be that the compatibility statement diluted the D&D trademark, not the Compatibility Logo.

Limited use of the trademarked NAME (not the logo) is a protected use for such things as statements of compatibility.

As to how to designate compatibility for the work you intend to publish, there is specific legal language and text required if you intend to use the d20 logo or any mention of the Dungeons & Dragons brand. Look at the d20 license FAQ and the actual d20 System Trademark License for the specifics.

Just because WotC says that you can't say it doesn't mean it's accurate. To use their trademark in most cases does require specific license.

Nobody can argue that "Ford Mustang" is a trademarked brand and product identity. That doesn't preclude me from producing aftermarket parts (for example, a body-kit) and advertising it as being for the Ford Mustang. My supplemental product is allowed to advertise such. I just can't use the Ford emblem, or use their trade dress.
#34

digital_thaumaturgy_dup

Sep 30, 2008 11:40:20
But, the Compatibility Logo is not the work being sold, so arguing dilution of that logo is invalid. The product being sold is D&D. The argument would have to be that the compatibility statement diluted the D&D trademark, not the Compatibility Logo.

Actually, the Compatibility Logo is being "sold". It is a mark being marketed for "sale" to potential third party publishers. WotC's consideration from the sale is the amount of additional revenue generated for the D&D brand by its prominent placement on third party products. In effect, third party publishers are paying WotC by advertising the D&D brand on their product, and thus the value of the mark lies in the effectiveness and prominence of that mark. Companies that do not use the mark decrease the likelihood that others will use the mark (again, easy to support with expert testimony and perhaps a study of how publishers that didn't use the d20 logo and the "Requires the use of..." text affected sales of WotC products and works by other third party publishers), thus further lessening its value to third party publishers, making it less likely that they will "buy" it for the price of advertising the D&D brand on their product.
#35

argent_mantle

Sep 30, 2008 12:05:10
That being said, is the SRD the only thing WOTC designated as OGL, or if I were to create an NPC that uses the spell Wraith Strike from Complete Adventurer, for example, would I not be able to because of the OGL?

In short... 'no.'

Also, if I were to instead designate it as "for use with the 3.5 D&D game published by WOTC, would that be sufficient? I have some 3rd party material published by other companies as well, and most of them say something along those lines, without the d20 logo.

The following link is not too bad at explaining some of the ideas behind derivative works for the gaming industry.
http://www.godsmonsters.com/?ART=153


I apologize if this is a bit long winded, but wanted to ask the community what their thoughts and opinions were before I took a copy of the 3.5 OGL to a lawyer in order to get his or her insight. Thanks again.:D

IANAL is a pretty standard thing around here... if you are going to publish, you want to have a lawyer around a bit anyways, not a bad time to start.
#36

kythri

Sep 30, 2008 12:50:03
Actually, the Compatibility Logo is being "sold". It is a mark being marketed for "sale" to potential third party publishers. WotC's consideration from the sale is the amount of additional revenue generated for the D&D brand by its prominent placement on third party products. In effect, third party publishers are paying WotC by advertising the D&D brand on their product, and thus the value of the mark lies in the effectiveness and prominence of that mark. Companies that do not use the mark decrease the likelihood that others will use the mark (again, easy to support with expert testimony and perhaps a study of how publishers that didn't use the d20 logo and the "Requires the use of..." text affected sales of WotC products and works by other third party publishers), thus further lessening its value to third party publishers, making it less likely that they will "buy" it for the price of advertising the D&D brand on their product.

WotC doesn't get to argue lost sales because a 3PP chose not to abide by a license that they didn't agree to, and are therefore not legally required to be bound by.

Limited use of the product name is allowed for advertising a supplemental product.

This is why one can publish software for Windows XP, and not have to pay Microsoft (or agree to any license) to advertise that the software is compatible. They may derive certain benefits to licensing Microsoft's logo, and choose to do so (much like WotC hopes people will do with the GSL), but by no means are they legally required to do so. Such a requirement would stifle creativity and competition.

See this link: http://en.wikipedia.org/wiki/Nominative_use

Specifically, the Terri Welles and Volkswagen citations.

A textual statement of compatibility in a font that is not similar to the trade dress of the trademarked and copyrighted product is not an infringing use of the trademark.

This isn't rocket science.
#37

ranger_reg

Sep 30, 2008 13:25:56
However, were one not to utilize the OGL, then that statement could still be made - and has been pointed out, unless you sign the GSL, you have rights equal to WotC's for use of terms like "wizard" and what not.

Now, you have to worry about how you worded mechanics and rules so the texts don't look like they came right off of their books or SRD. In schools, they call it plagiarism, under the law it is infringement.


Conversely, one could utilize the OGL, produce a 4E compatible work, and just not make the statement, and instead, make the statement that many OGL publishers did, to the effect of "Compatible with the 4th Edition of the World's Most Popular Fantasy Role Playing Game" or something similar.

Which is what Monte Cook and his Malhavoc Press did for his Arcana Unearthed books.
#38

ranger_reg

Sep 30, 2008 13:28:24
Kythri, this is an important distinction. The only book that WotC published under the OGL (& d20) license was Unearthed Arcana. The PHB, DMG and MM, are not OGL. Which causes a pain because any errata for the core books isn't technically OGL until it gets included into the SRD. Which is kinda nice in the way that the 4e is done in that the SRD is only an index to the OGL material so the errata is automatically able to be used by 3pp.

I don't mind the new SRD format (which is more like a citation reference index). I just don't like the GSL for not addressing content sharing, even among 3PP sources.
#39

ranger_reg

Sep 30, 2008 13:33:15
As to how to designate compatibility for the work you intend to publish, there is specific legal language and text required if you intend to use the d20 logo or any mention of the Dungeons & Dragons brand. Look at the d20 license FAQ and the actual d20 System Trademark License for the specifics.

One must keep in mind, the d20 System Trademark License is soon to expire (if not already), and all products bearing that logo must not be in the market after the end of the year (2008).

Which is why many print publishers and retailers holding an inventory of print products are selling them off as fast as they can.
#40

digital_thaumaturgy_dup

Sep 30, 2008 14:16:25
WotC doesn't get to argue lost sales because a 3PP chose not to abide by a license that they didn't agree to, and are therefore not legally required to be bound by.

Actually, you get to argue anything you can bring to bear a basis in evidence for. It's for judges to decide the viability of those arguments. Considering the size of Hasbro's piggy bank, it's very likely that the argument would be quite effective, since the vast majority of companies that would care enough about 4e to publish works for it do not have the means to fight back.

For companies with the means to wage a protracted legal debat, an argument doesnt have to be the point on which a court case is decided. Indeed, a decision isn't even necessary. It merely has to be viable enough that the judge doesn't dismiss it outright, meaning that the defendant has to answer the argument or be judged against by default.

Limited use of the product name is allowed for advertising a supplemental product.

This is why one can publish software for Windows XP, and not have to pay Microsoft (or agree to any license) to advertise that the software is compatible. They may derive certain benefits to licensing Microsoft's logo, and choose to do so (much like WotC hopes people will do with the GSL), but by no means are they legally required to do so. Such a requirement would stifle creativity and competition.

See this link: http://en.wikipedia.org/wiki/Nominative_use

Specifically, the Terri Welles and Volkswagen citations.

A textual statement of compatibility in a font that is not similar to the trade dress of the trademarked and copyrighted product is not an infringing use of the trademark.

I am arguing this point? I thought I was arguing that one can't use the OGL to claim compatibility with a WotC trademark, and that a statement of compatibility possibly dilutes the value of a trademark that denotes compatibility (not the trademark that compatibility is stated to be with; the two marks have seperate value), and that either of these actions could land the publisher that chooses to take them in very hot water.

By the way, the statement you seem to be taking exception to (that of dilution based on a statement of compatibility) cannot be sufficiently answered here, as this point is a seperate one from whether or not the iPod mark is diluted by saying something is compatible with the iPod. More apt would be if a company created a proprietary system of linguistic analysis, published it with an associated registered trademark, then decided to license the use of that system and denote licensees with a seperate mark. People stating compatibility with the mark denoting the system wouldn't be diluting that mark, but it is possible that they may be diluting the other mark that denotes compatibility. As far as I know, such an issue has never been ruled on, even in the famous Nintendo vs. Tengen debacle a few years back, because the issue of the Nintendo "seal of approval" being a seperate trademark wasn't raised.

This isn't rocket science.

And the subject of trademark, copyright, and IP law is not as black and white as you are letting on.

Now, this is twice that you have been less than respectful (first with allusions to me being disingenuous, for which no apology was offered when I pointed out your error, and now with the implication that I am not bright enough to follow your point.) Watch the ascerbic tone, or this discussion is over.
#41

digital_thaumaturgy_dup

Sep 30, 2008 14:17:01
One must keep in mind, the d20 System Trademark License is soon to expire (if not already), and all products bearing that logo must not be in the market after the end of the year (2008).

Which is why many print publishers and retailers holding an inventory of print products are selling them off as fast as they can.

Very true, on both counts.
#42

kythri

Sep 30, 2008 15:03:37
I am arguing this point? I thought I was arguing that one can't use the OGL to claim compatibility with a WotC trademark

No. You argued that one couldn't produce a 4E-compatible work with Open Game Content. You didn't say anything about the compatibility statement in that argument:

Originally Posted by ChrisTheS
And I pointed out, quite truthfully, that you COULD use the OGL and SRD to publish something that worked with 4e, based on Wizards' own open content. This is fact.

How, without also entering into the GSL?

Originally Posted by kythri
You have to agree to the GSL to be bound by it's terms. It's not hard to envision a product that uses Open Game Content, abides by the OGL, and is compatible with the 4E mechanics.

It really is (from my reading of the OGL and GSL at least). I could be wrong; I have been before.

Please note your above statements. At this point, we weren't discussing the compatibility statement in-line with the use of Open Game Content. Yes, I was wrong about being able to use the OGL and make a statement of compatibility, but right there are your own arguments about the ability to use the OGL to produce 4E-compatible work.

, and that a statement of compatibility possibly dilutes the value of a trademark that denotes compatibility (not the trademark that compatibility is stated to be with; the two marks have seperate value), and that either of these actions could land the publisher that chooses to take them in very hot water.

And you keep arguing "possibilities" that have been addressed numerous times in other mediums, with a positive outcome for those making limited use of another's trademark.

By the way, the statement you seem to be taking exception to (that of dilution based on a statement of compatibility) cannot be sufficiently answered here, as this point is a seperate one from whether or not the iPod mark is diluted by saying something is compatible with the iPod. More apt would be if a company created a proprietary system of linguistic analysis, published it with an associated registered trademark, then decided to license the use of that system and denote licensees with a seperate mark. People stating compatibility with the mark denoting the system wouldn't be diluting that mark, but it is possible that they may be diluting the other mark that denotes compatibility. As far as I know, such an issue has never been ruled on, even in the famous Nintendo vs. Tengen debacle a few years back, because the issue of the Nintendo "seal of approval" being a seperate trademark wasn't raised.

And now you're changing the scope. The argument has been about dilution of the D&D trademark, and you're trying to change it to dilution of the compatibility logo.

And the subject of trademark, copyright, and IP law is not as black and white as you are letting on.

To quote you: "It really is."

Now, this is twice that you have been less than respectful (first with allusions to me being disingenuous, for which no apology was offered when I pointed out your error, and now with the implication that I am not bright enough to follow your point.) Watch the ascerbic tone, or this discussion is over.

Boo hoo.
#43

digital_thaumaturgy_dup

Sep 30, 2008 15:24:41
No. You argued that one couldn't produce a 4E-compatible work with Open Game Content. You didn't say anything about the compatibility statement in that argument:

I'm sorry, I thought any literate person could tell if they read the thread that my whole point was about statements of compatibility. To whit:

The OGL v1.0a is in effect, and will always be in effect, for information included in the SRD (and specifically added to the open content covered by that agreement via third party publishers). However, and this is the important bit, the new GSL governs material that can be used to produce products for 4e, and the OGL is in no way applicable to 4e.

Your point being what exactly?

That certain open content can replicate some 4e mechanics does not mean that a work based on that open content is applicable to 4e. We're discussing use of the OGL to publish works. Your statement is like saying that an expansion for Axis and Allies is applicable to Risk because they both use a finite number of D6s to resolve combats.

The discussion is about using the OGL, not the SRD. The OGL governs use of "open game content", which includes the SRD. Attempting to use the OGL and SRD instead of the GSL to produce a product compatible with 4e is a sure way to financial sodomy at the hands of WotC's lawyers.

Admittedly, I should have said "to produce a product and claim compatibility".

I was told this:
And I pointed out, quite truthfully, that you COULD use the OGL and SRD to publish something that worked with 4e, based on Wizards' own open content. This is fact.

To which I replied with this:

How, without also entering into the GSL?

Again, still talking about using the OGL to produce published works claiming compatibility with 4e.

Please note your above statements. At this point, we weren't discussing the compatibility statement in-line with the use of Open Game Content. Yes, I was wrong about being able to use the OGL and make a statement of compatibility, but right there are your own arguments about the ability to use the OGL to produce 4E-compatible work.

Please note my above statements, in their proper context. It's quite obvious what I am talking about, since I clearly state what I am talking about several times by saying this is what we are talking about here. That you can't understand this is not my problem.

And you keep arguing "possibilities" that have been addressed numerous times in other mediums, with a positive outcome for those making limited use of another's trademark.

And now you're changing the scope. The argument has been about dilution of the D&D trademark, and you're trying to change it to dilution of the compatibility logo.

Hmm. Let's go back and look shall we?

However, since WotC created a trademark (of which they allow royalty-free usage) to denote compatibility (the Compatibility Logo, which they presumably intend to use as marketing for their own Core Books much like they did with the d20 logo and former "requires the use of..." text), it could be argued that any other method of denoting compatibility is infact a dilution of that trademark.

The value of the Compatibility Logo lies in it being the way that people recognize products as compatible with 4e. Thus the existence of a different avenue to reach the same conclusion (that a product is compatible with 4e) lessens the Compatibility Logo's value by making it unnecessary for one of its intended purposes.

To give this argument a evidentiary basis, all WotC needs to do is produce lower than projected sales numbers and an expert or ten to testify that those numbers are lower than they would have been had the work in question used the Compatibility Logo rather than intentionally circumventing it. This argument gets easier to make as the market share of the publisher using a means other than the Compatibility Logo to denote compatibility increases.

Further, one could also argue that the dilution to the Compatibility Logo was willful, since there is no cost associated with its use. That argument wouldn't hold up, but it'd be a fun time suck.

Actually, the Compatibility Logo is being "sold". It is a mark being marketed for "sale" to potential third party publishers. WotC's consideration from the sale is the amount of additional revenue generated for the D&D brand by its prominent placement on third party products. In effect, third party publishers are paying WotC by advertising the D&D brand on their product, and thus the value of the mark lies in the effectiveness and prominence of that mark. Companies that do not use the mark decrease the likelihood that others will use the mark (again, easy to support with expert testimony and perhaps a study of how publishers that didn't use the d20 logo and the "Requires the use of..." text affected sales of WotC products and works by other third party publishers), thus further lessening its value to third party publishers, making it less likely that they will "buy" it for the price of advertising the D&D brand on their product.

By the way, the statement you seem to be taking exception to (that of dilution based on a statement of compatibility) cannot be sufficiently answered here, as this point is a seperate one from whether or not the iPod mark is diluted by saying something is compatible with the iPod. More apt would be if a company created a proprietary system of linguistic analysis, published it with an associated registered trademark, then decided to license the use of that system and denote licensees with a seperate mark. People stating compatibility with the mark denoting the system wouldn't be diluting that mark, but it is possible that they may be diluting the other mark that denotes compatibility. As far as I know, such an issue has never been ruled on, even in the famous Nintendo vs. Tengen debacle a few years back, because the issue of the Nintendo "seal of approval" being a seperate trademark wasn't raised.

Yes, I've quite clearly changed the scope, since this is what I have been saying now for over a page of this thread.

Boo hoo.

And now this discussion is officially done. I don't expect you to suffer to long over it though, what with the quick healing and all.