FAQ - Legal and Intellectual Property - Downloaded from the Wizards Community, all coding removed by Solauren

Post/Author/DateTime	Post
#1 mudbunny May 07, 2008 9:21:25	I have started this thread as a place where people who have actual experience in IP/Legal issues can post or provide information concerning the GSL and other licenses. As always, the opinions provided below are their own, and do not in any way represent that of their employers, nor of WotC. If you feel that somethinhg that you do (or might do) might fall under one of the licenses, talk to a lawyer. Getting internet legal advice is a sure path to folly.
#2 mudbunny May 07, 2008 9:24:49	From Steerpike7 (Steerpike7 is an IP lawyer IRL) [sblock=Copyright, Game Rules, and GSL] This has been the subject of a few threads in here, so I thought I'd post an excerpt from Nimmer in a single thread for those who are interested in the issue. For people who don't know, Nimmer is the foremost legal treatise on Copyright. The Supreme Court and lower courts actually cite to it in their opinions. Almost every sentence in this excerpt is actually cited to case law in Nimmer, but I'm not including the cites here. This paragraph gives the general state of the law on copyright and game rules. "(3) - Copyrightability of Games (a) - In General. It is said that games are not copyrightable, but this general proposition is subject to qualification. It is true that no copyright may be obtained in the system or manner of playing a game or in engaging in any other sporting or like activity. However, some limited copyright protection is nevertheless available in connection with games. In the first instance, it would seem that a relative minimal artistic expression, if original, would render copyrightable labels for games, as well as the pattern or design of game boards and playing cards as pictorial or graphic works. Certain game boards may also be copyrightable as "maps." Moreover, the wording of instructions for the playing of a game is itself copyrightable so as to prevent a literal or closely paraphrased copying. Such copyright, however, would not permit a monopoly in the method of play itself, as distinguished from the form of instructions for such play. *It has been held that mechanical and structural similarity between a plaintiff's and defendant's game will not constitute infringement* absent a similarity of artwork.** Anyway, that's the whole first paragraph from Nimmer on the subject (the emphasis is mine). The point being that game rules themselves, whether it be for a card game, for 4e D&D, or for any other game, are not protectable by copyright under the current law. As I've said in the other threads, this fact won't necessarily prevent you being sued, and from a practical standpoint if you're a startup company who doesn't have a few hundred thousand bucks to go through trial, it may not really matter if you're in the right or not. The plaintiff is likely to bury you. But my initial point (or one of them) is that participants in GSL are giving up some rights (because you can agree to be bound by terms of an agreement that are more restrictive than general copyright principles) in exchange for other rights (such as trademark rights, using the D&D name, which is something WotC can certainly enforce). On par, it seems to me that most companies who are interested in publishing material compatible with 4E are going to find that participating in GSL is the most sensible way to go forward. But I think it is a mistake to assume categorically that the only way you can produce products compatible with 4E is if you go through the GSL.[/sblock]
#3 mudbunny May 07, 2008 9:26:16	From Wrecan (Wrecan is an IP litigator) On costs of litigation It is not easy to bury an IP defendant in litigation if the issue is a simple issue of the law. Federal Rule of Civil Procedure 12 allows a litigant to summarily dismiss a case if it has no legal basis. Where the law is as clear as Nimmer describes, a defendant sued for copying a game's mechanics and who has been careful not to plagiarize the game's rulebook, can have any case dismissed against them without having to spend more than a few thousand dollars. If the case is not dismissed (because, for example, the court finds that there is a possibility that the defendant did copy the original game's distinctive flavor, or because the game mechanics are protected by other areas of the law, like patents -- see below), then the company would have to settle to avoid mounting litigation costs.
#4 mudbunny May 07, 2008 9:27:14	From Wrecan On Patents Another point to be made is that even though game mechanics cannot be copyrighted or trademarked, they might be patented and Wizards has in fact patented other game mechanics. (Magic: the Gathering, reissued in 2003). Before you go and rely on Nimmer to justify making your own 4th Edition-compatible materials, you should consult an attorney (in person, not via the internet) to ensure that you aren't running afoul of Wizard's other intellectual properties, such as trademarks, servicemarks and patents.
#5 mudbunny May 07, 2008 10:06:16	Reserved for a little blurb about Patents wrt games
#6 wrecan May 07, 2008 11:04:31	The United States Copyright Office has the following statement on the extent to which games can be copyrighted: Excerpt from United States Copyright Office Fact Sheet FL-108: Games The idea for a game is not protected by copyright. The same is true of the name or title given to the game and of the method or methods for playing it. Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form. Copyright protection does not extend to any idea, system, method, device, or trademark material involved in the development, merchandising, or playing of a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Some material prepared in connection with a game may be subject to copyright if it contains a sufficient amount of literary or pictorial expression. For example, the text matter describing the rules of the game, or the pictorial matter appearing on the gameboard or container, may be registrable.
#7 Moribund Jun 05, 2008 16:27:15	While the novel aspect of a collectable trading card game may indeed be patentable due to its unique method of distribution and play, a role-playing game such as D&D cannot be patented since it lacks such novel aspects. You don't play with a "collection" of books, nor do you turn the books 90 degrees in order to indicate they have been used. Having a referee and several players, moving game pieces on a board, and determining the success of actions on a die roll are all subject to prior art.
#8 Morrus Jun 06, 2008 8:50:17	Copyright has nothing to do with the GSL. The GSL is a license (i.e. a contract). If you agree to the contract, you're bound by it. Wandering off on the old "game rules can't be copyrighted" tangent isn't relevant to the GSL. They're not copyrighting game rules; they're asking you to agree to a contract in which they allow you to use their brand name and logos, and in return you agree to adhere to certain conditions.

Post/Author/DateTime

Post

mudbunny

May 07, 2008 9:21:25

I have started this thread as a place where people who have actual experience in IP/Legal issues can post or provide information concerning the GSL and other licenses. As always, the opinions provided below are their own, and do not in any way represent that of their employers, nor of WotC.

If you feel that somethinhg that you do (or might do) might fall under one of the licenses, talk to a lawyer. Getting internet legal advice is a sure path to folly.

mudbunny

May 07, 2008 9:24:49

From Steerpike7 (Steerpike7 is an IP lawyer IRL)
[sblock=Copyright, Game Rules, and GSL]
This has been the subject of a few threads in here, so I thought I'd post an excerpt from Nimmer in a single thread for those who are interested in the issue. For people who don't know, Nimmer is the foremost legal treatise on Copyright. The Supreme Court and lower courts actually cite to it in their opinions. Almost every sentence in this excerpt is actually cited to case law in Nimmer, but I'm not including the cites here. This paragraph gives the general state of the law on copyright and game rules.

"(3) - Copyrightability of Games

(a) - In General. It is said that games are not copyrightable, but this general proposition is subject to qualification. It is true that no copyright may be obtained in the system or manner of playing a game or in engaging in any other sporting or like activity. However, some limited copyright protection is nevertheless available in connection with games. In the first instance, it would seem that a relative minimal artistic expression, if original, would render copyrightable labels for games, as well as the pattern or design of game boards and playing cards as pictorial or graphic works. Certain game boards may also be copyrightable as "maps." Moreover, the wording of instructions for the playing of a game is itself copyrightable so as to prevent a literal or closely paraphrased copying. Such copyright, however, would not permit a monopoly in the method of play itself, as distinguished from the form of instructions for such play. It has been held that mechanical and structural similarity between a plaintiff's and defendant's game will not constitute infringement absent a similarity of artwork.

Anyway, that's the whole first paragraph from Nimmer on the subject (the emphasis is mine). The point being that game rules themselves, whether it be for a card game, for 4e D&D, or for any other game, are not protectable by copyright under the current law.

As I've said in the other threads, this fact won't necessarily prevent you being sued, and from a practical standpoint if you're a startup company who doesn't have a few hundred thousand bucks to go through trial, it may not really matter if you're in the right or not. The plaintiff is likely to bury you.

But my initial point (or one of them) is that participants in GSL are giving up some rights (because you can agree to be bound by terms of an agreement that are more restrictive than general copyright principles) in exchange for other rights (such as trademark rights, using the D&D name, which is something WotC can certainly enforce).

On par, it seems to me that most companies who are interested in publishing material compatible with 4E are going to find that participating in GSL is the most sensible way to go forward. But I think it is a mistake to assume categorically that the only way you can produce products compatible with 4E is if you go through the GSL.[/sblock]

mudbunny

May 07, 2008 9:26:16

From Wrecan (Wrecan is an IP litigator)

On costs of litigation

It is not easy to bury an IP defendant in litigation if the issue is a simple issue of the law. Federal Rule of Civil Procedure 12 allows a litigant to summarily dismiss a case if it has no legal basis. Where the law is as clear as Nimmer describes, a defendant sued for copying a game's mechanics and who has been careful not to plagiarize the game's rulebook, can have any case dismissed against them without having to spend more than a few thousand dollars. If the case is not dismissed (because, for example, the court finds that there is a possibility that the defendant did copy the original game's distinctive flavor, or because the game mechanics are protected by other areas of the law, like patents -- see below), then the company would have to settle to avoid mounting litigation costs.

mudbunny

May 07, 2008 9:27:14

From Wrecan

On Patents

Another point to be made is that even though game mechanics cannot be copyrighted or trademarked, they might be patented and Wizards has in fact patented other game mechanics. (Magic: the Gathering, reissued in 2003). Before you go and rely on Nimmer to justify making your own 4th Edition-compatible materials, you should consult an attorney (in person, not via the internet) to ensure that you aren't running afoul of Wizard's other intellectual properties, such as trademarks, servicemarks and patents.

mudbunny

May 07, 2008 10:06:16

Reserved for a little blurb about Patents wrt games

wrecan

May 07, 2008 11:04:31

The United States Copyright Office has the following statement on the extent to which games can be copyrighted:

Excerpt from United States Copyright Office Fact Sheet FL-108: Games

The idea for a game is not protected by copyright. The same is true of the name or title given to the game and of the method or methods for playing it.

Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form. Copyright protection does not extend to any idea, system, method, device, or trademark material involved in the development, merchandising, or playing of a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles.

Some material prepared in connection with a game may be subject to copyright if it contains a sufficient amount of literary or pictorial expression. For example, the text matter describing the rules of the game, or the pictorial matter appearing on the gameboard or container, may be registrable.

Moribund

Jun 05, 2008 16:27:15

While the novel aspect of a collectable trading card game may indeed be patentable due to its unique method of distribution and play, a role-playing game such as D&D cannot be patented since it lacks such novel aspects. You don't play with a "collection" of books, nor do you turn the books 90 degrees in order to indicate they have been used.

Having a referee and several players, moving game pieces on a board, and determining the success of actions on a die roll are all subject to prior art.

Morrus

Jun 06, 2008 8:50:17

Copyright has nothing to do with the GSL. The GSL is a license (i.e. a contract). If you agree to the contract, you're bound by it.

Wandering off on the old "game rules can't be copyrighted" tangent isn't relevant to the GSL. They're not copyrighting game rules; they're asking you to agree to a contract in which they allow you to use their brand name and logos, and in return you agree to adhere to certain conditions.