Right on!  Some of the best 3rd Edition D&D stuff was by the third-party publishers.  Wizards doesn't much care to publish adventure modules - they prefer books of extra feats, spells, and prestige classes.  If you like premade adventures (which I do), there are probably several companies and writers who usually deliver the goods you want; no logo or lack thereof is going to change that.

I suspect that when Kenzer say that HM is moving away from the AD&D 1E rules they mean at least one of two things, and probably both:

- The rules are having an extensive rewrite so that there's no trace of the original wording from the AD&D 1E rulebooks. Wizards do have copyright over that, and the original version of HM was essentially (if I recall correctly) a big copy-paste, with "Gary Jackson"-style interjections and extra rules inserted in.

- The new rules will develop AD&D 1E in a new direction, a sort of "parallel evolution" imagining what the game would have looked like if it had taken a slightly different course. This frankly makes sense, given the wide availability of 1E rulebooks (in hardcopy and PDF) and the free availability of OSRIC: the thing that makes Hackmaster interesting is where it adds to and differs from AD&D 1E, not where it's similar; sure, the AD&D framework is important, but just tossing out AD&D 1E wouldn't necessarily have been very successful.

Good to see you weighing in on this issue Ryan. :)

Although it does sound a bit like FUD... (a term I just learned from David Kenzer) because I don't think it's as grey a matter as you're suggesting, and I definitely don't agree that this is Kenzer deciding to fight a battle in court.

Copyright law is quite clear that you can not copyright the rules of a game:
http://www.copyright.gov/fls/fl108.html

Nominative Use of Trademarks is also fairly clear that Kenzer & Co is appropriate in their treatment of Wizard of the Coast's trademarks.

So what ground does WotC have to file a suit?  That they wish Copyright Law treated games the same way it treats Music and Movies?  Knowing that David Kenzer practices IP Law gives me a lot of confidence that my line of thinking here (because it's his as well) is accurate.

So I really don't see WotC deciding to file frivolous lawsuits over this.  And I do agree with your observations about the risks of mixing trademark and copyright together.  I'm not really sure of all of the implications of that, but I'd expect they don't want to rush into the courtroom to find out...

No offense, but if the Copyright Office says you can't copyright the rules of a game, an IP Lawyer has his own company follow that understanding of the law, but you (not a Lawyer, right?) say something different... well it's not much of a contest who I'm going to believe.

re: Red Book Case -- taking data from a print book and republishing it in a computerized "book" -- not even close to the same thing

re: The Seinfeld Test -- using material from a copyrighted TV show and republishing it in book form -- again, not even close to the same thing

You're talking about copyright here, and cases where people have done a cut-and-paste job on material from one medium  to another.  So if you lifted all the fluff text about Eladrin or Dragonborn and put that into a book?  Yes, that would be against copyright law.  If you published a book about the ecology of Dragonborn Riding Turtles and said it was compatible with 4e?  That's something else entirely.

If you want recent legal precent for Trademark use by a 3rd party publishing aftermarket compatible products -- then this would be the case to look at:

http://query.nytimes.com/gst/fullpage.html?res=9E02E4D6103CF93BA25750C0A9639C8B63

Stu, Ryan: I think its not so much a case of Kenzer being committed to a trial, as it is Kenzer being committed to force Wizards into making a choice. WoTC, all issues of the actual IP law aside, will now have to choose at this moment whether they go the route of TSR and try to sue Kenzer in order to defend their claims (and thus the validity of the GSL), or if they back down here and now, essentially making the GSL meaningless and opening the door for all kinds of 3rd party products.
That said, I'm sure that Kenzer and its owners are quite certain that they are in the right side of the law on this, and that in publishing Kalamar in this way they are willing to go to court over it; but the more interesting question is not that, but whether WoTC/Hasbro will blink or not.

Jim: Even if you're right, then its his name that's wrong, and not me. He really ought to change it.

" The problem is that the term "game" is undefined, either by the law itself (Title 17), or by any enabling legislation from Congress. " --RyanD

That's only a problem if you want to see copyright laws extended to the rules of a game, rather than simply the expression of those rules in a literary work. The reason there's no mention of game is that only 8 categories of works of authorship are covered by U.S. Copyright Law. Games aren't one of those categories, although a rulebook would be a "literary work", and game illustrations and physical components would be "pictorial, graphic, and sculptural works".

Game rules themselves, as independent of the literary work, design, illustration and physical components would fall under "idea, procedure, process, system, method of operation, concept, principle, or discovery" -- things that *are* mentioned in Title 17, and specifically *excluded* from copyright protection.

There is no ambiguity about whether the rules for a game -- ideas, procedures, processes, systems, methods of operation -- are covered by Copyright Law.

They're not.

Source: Cornell University Law School

[I found the answer to my original question and rewrote the post]

RPGs, gives rules to create X, Y  and Z. A book that uses those rules to make X,Y, and Z (say monsters, items, and adventures) doesn't have to copy any text from the original. But yet it still relies on the original ruleset for it terms and structure.

It seems to me the real question do material created based on those rules are considered Derivative work. If so then US Law give copyright holder the exclusive right to prepare derivative works. If not then the GSL is unnecessary. Plus I read that the courts have given permission to use short bits of copyrighted text (mostly terms) because a idea couldn't be expressed any other way.

I don't think area has been settled in US Law or am I wrong?

I will bet you a bottle of vodka at any strip nightclub that
if and when an RPG case goes in front of a judge, the court will find
that an RPG is a copyrightable entity just like a screenplay, or a
piece of computer software, or the design of Prince's guitar. But you
go on quoting the most permissive interpretation possible of the law
because we're all better off when people go out to the fringe and try
to redraw the boundaries. Good luck to you.

The book itself, the literary work, is definitely copyrightable.
All the stuff listed under the OGL / d20 license as IP (Githyanki et
al) -- copyrightable. The code of a software application is also
copyrightable (kinda sorta).

An idea / game mechanic like "roll a d20 add a modifier and get
higher than a target number to succeed at a task" -- that's not
copyrightable.

Likewise, sitting in your parent's basement pretending to be an elf... yeah... also not copyrightable. :D

I think there's a stronger case for improper Trademark use (even
though I think it's fair use) than there is for copyright infringement
of game mechanics.  I haven't read the book so I can't comment on
copyright infringement of settings and characters, but that's certainly
a possibility -- but its separate from copyright of the *game* itself.



I'm pretty confident about this though:



You draw a map on a sheet of graph paper.  You scribble some notes
about room descriptions and contents, along with some stats like this:
"5 Goblins,  HD 1-1, hp: 1,2,3,4,5; ac 7; dmg d4 (daggers)"  You scan
it all in and publish it with something like the following text on the
cover:  "for use with 1st Edition Advanced Dungeons & Dragons®”



And you're not breaking any laws.

RPGs, gives rules to create X, Y and Z. A book that uses those rules to make X,Y, and Z (say monsters, items, and adventures) doesn't have to copy any text from the original. But yet it still relies on the original ruleset for it terms and structure.

It seems to me the real question do material created based on those rules are considered Derivative work.

You can't copyright the rules themselves. So material created based on those rules would not be considered derivative works.

Any sort of instructional book will commonly include rules to create X, Y and Z.  Let's say you buy one on writing a film scripts.  The original book is copyrighted to you.  I read your book and follow all the procedures in your book to write a new story.  Your copyright does not extend to my new book, even though it's based on your book's ruleset (3 Act Structure etc).  However if I actually copied sections of your book (the Literary work itself) such as your examples and cut-and-paste them into my new book, then you would have a case that your copyright extends to my new book.

TITLE 17,102(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Copyright protection does not extend to the rules from an original work of authorship (the copyrighted "literary work" -- the gamebook).

I think this is exactly the sort of thing  that 102(b) is setup to describe not being covered by copyright.

@Stuart - Hence the emphasis on the Red Book case. I think I am following things better. 

Consolidating several answers into one post:

Robert:  "But didn't mention derivative works."

That's another copyright issue that RPGs are packed chock full of.  The right to control who makes a derivative work is one of the most important parts of the copyright system.  As time has progressed, and especially in the past 20 years, the courts have taken an ever-expanding view of what constitutes a "derivative work".

For a long time, the guiding case in this area was known as "Anderson v. Stallone".  In this case, Anderson wrote a screenplay for a sequel to Rocky and showed it to Stallone.  Subsequently, Stallone wrote a screenplay for a Rocky sequel, and Anderson argued that Stallone had infringed his copyright in the first script.

The court ruled that not only was Anderson wrong, he was way wrong.  The court found that since Anderson's script was based on characters and situations created by Stallone in the original Rocky script, that Anderson's work was an "unauthorized derivative work", and that the copyright in that script was actually held by Stallone - therefore it was impossible for Stallone to be infringing on his own copyright.

This case, along with others, established the idea that parts of a copyrighted work transcend the manuscript they appear in and gain a larger protection.

When you consider an RPG, you can look at it as a series of "objects".  These objects are manipulated in the act of creating content for the RPG.  This is often, but incorrectly, called "game design".  This process is actually better termed "game development", because the design was done (mostly) in the original work, and the new material represents a derivation of that work.

If I was asked to parse a given work to decide if it was a derivative work of an RPG, I would look at how many of these "objects" appear in the second work given the same selection, arrangement and presentation choices made by the creator of the first work.  The more overlap I found between the two works, the more likely I would be to decide the second work was derivative.

In the Anderson case, for example, it was sufficient that there was a character named Rocky who was a boxer from Philadelphia, who had a girlfriend named Adrian and a buddy named Paulie.  From the limited description of these characters in the script, the court was able to decide that Anderson's work was just a "development" of Stallone's work and was thus derivative.  The Court noted that if he chose to do so, Stallone could have shot Anderson's movie without compensating him!

Here's another example.  The band "The Verve" produced a song called "Bittersweet Symphony".  That song used a short "hook" which came from a Rolling Stones song.  The Stones sued, arguing that the "hook" was of sufficient creative merit to represent a copyright, and that the rest of the Verve's work - melody, lyrics, arrangement, etc. was a derivative of the "hook".  The Court found in the Stone's favor, and assigned the copyright interest in the WHOLE SONG to the Stones (who subsequently licensed it to Nike).  In this case, though the "hook" itself was a very short piece of music, it was instantly recognizable to the trained listener, and it was repeated many times throughout the Verve's work.

Let's imagine we're a court faced with an RPG infringement case.  We look at the primary work, say the D&D player's handbook.  And we look at the secondary work, say an adventure that is designed to be compatible.  The question we would have to ask ourselves is "how much of the primary work has been reproduced in the secondary work, is the primary work copyrightable, is the secondary work fair use, and what are the limits of each test?"  Because there has been essentially no litigation over these issues, the answers to these questions are currently "unknown".

Suart:  "Ryan, where do you think the line is?  From my example above about the map + goblins -- do you think that's legal or not?"

I think it is legal, but probably not for the reasons you suspect.

Everything in your example has a public domain source.  An argument could be made that the selection, arrangement and presentation of the stat block is derivative, but there is a concept in copyright law which says basically "if this thing that you are presenting is so connected with an obvious, public domain, or non-copyrightable part that it cannot be separated, then your work is not copyright either."  There is a case regarding a company who created a method of double-entry bookkeeping and sought to use copyright law to limit competitor's use of that system, and the court found that that the work did not pass this test and was not subject to copyright.

The concept of Hit Points, in fact, while arguably in the public domain, has a source that could be tracked down.  I have enjoyed often asking Dave Arneson questions about this topic in panels that we share together, because the audience is often unaware of the history.  The Hit Point mechanic was introduced into RPGs by Dave in the early days of the development of the form when the players decided to focus on specific individuals rather than whole units of forces.  Dave adapted a set of rules from a WWI battleship combat game to this purpose, which is why we have a legacy of "hit points and armor class" in virtually every game featuring single-unit combats today, from RPGs to Pokemon.  Any copyright interest that might obtain to that system at this point is likely lost due to a host of factors, not least of which is that in the 1960s, I have little doubt that a court would have ruled that the hit point system was not copyrightable in the first place.

So the line of text you presented is likely impossible for Wizards to assert copyright protection on.

Now let's make a slight change to that text:

5 Spined Devils: LE M Outsider (Baatezu, Evil, Extraplanar, Lawful)
HD: 7 (52 hp) INIT +6
AC 22 (T 16 FF 16) SPD 20ft, F100ft (Pr)
ATK: 2 talons +9 (1d4+3 plus 1d4 fire, evil, lawful, magic); or
spine +13 rg (1d4+2, plus 1d4 fire, evil, lawful, magic, plus pain) SV: Fort +8, Ref +11, Will +8 Spells: (Spell-like Abilities CL 5th) 3/day - Disg Self, Prod flame
(+12 tch, +14 rg); 1/day - Stink cld (DC 15), Summ baatezu (2 spined
devils, 35%) CR 6

Do I think that is copyrightable, in the context of a work which purported to be "compatible with D&D"?  Yes, I certainly do (unless used for one of the obvious fair use exceptions like teaching, critique, or research).  I think it has a selection arrangement presentation copyright in the format of the statblock and the individual statistics presented.  I think it has an artistic copyright in the way the proper nouns and adjectives are used in this context (Spined Devil, Baatezu, etc.)  Just re-arranging the order of the stat block would not negate these copyright interests, nor would the act of making minor adjustments to the values.

I do tend to think this copyright is fairly limited in scope.  You could certainly find a way to create something similar that might convey the same basic meaning in a way that got around the copyrights here, but the more you do that the less "compatible" you are with D&D, and thus the less useful you are to the consumer.  Again, this is an area where practical use may trump pure theory.  You might be able to engineer an answer to the problem, but in so doing you might create a bigger marketing and use problem that rendered your solution moot.

There are a lot of public domain creatures in the Monster Manual (although a lot less in the 4E book if what I hear is accurate).  You could easily make a simple "dungeon crawl" adventure that consisted of a map, keyed to a list of monsters found in each room, and probably even basic treasure just by referencing those public domain creatures, and there's little or nothing anyone could do about it.  But that would be boring, and other than as an intellectual excersize, not worth much.  When you start bringing in spells, magic items, interesting opponents with variant abilities and equipment, etc. you walk right into the gray zone.

Depending on what side of the case you are on, you could construct an argument that your work is, or is not, an unauthorized derivative work, or an infringement of a selection, arrangement and presentation copyright, or both.  Only a court can tell which side is right.

RyanD

While Stuart is correct that ideas can't be protected by copyright. That not what Ryan is pointing out. It is the expression of the IDEA of D&D that COULD be protected.

For example I could make a game that uses hit points, armor classes, and a to hit chart. However I would fairly safe I made a game that uses hits to kill, defend values, a combat chart. Same rule ideas different terms and perhaps different numbers.

The closer I make my expression of combat to D&D, the greater chance of a case being made of copyright expression.

The key point, is that there is no cases that speaks DIRECTLY to the situations that RPGs find themselves. There are cases that speak to different elements of the RPG situation. (Like the Rules of Scriptmaking example, or the Red Book Case) but nothing that says "This is how it is in RPGs"

Note I am not taking a position on how it SHOULD be. Only saying it is obviously unclear where the boundary is if you try to rely on the law.

The OGL made is clear as to what 3rd party publisher could do. Ryan and Wizards should be applauded for that gift.

The GSL I agree is inferior to OGL and looks even inferior to relying even on the unclear bounds of copyright laws. Because right now, unlike the GSL, publisher can see that throughout the histroy of D&D, even with lawsuit happy TSR, there were third party publishers of D&D material.

Relying on copyright law to some carries better risk than relying on Wizard and the GSL. To other relying on the GSL will seem a better risk.

However in either case Wizards by not making a clear alternative to relying on Copyright law is now in the midst of a major marketing blunder.

Hi - I'm Simon Newman, S'mon on Dragonsfoot; I teach copyright law to undergrads & postgrads at a UK University (in US terms I'm a professor, my job title is senior lecturer).  UK copyright law is very similar to US except that there is no statutory concept of 'derivative works' - only adaptations and non-literal copies are covered.

Interesting discussion.  I disagree with the thrust of some of Ryan Dancey's comments above in that I don't think WoTC has any case against Kenzer for a D&D-compatible sourcebook.

Dancey: 

"If the court finds that a given RPG is copyrightable (which I am 99.999% certain it will), then you'll have to show how using material from that source is "Transformative" in order to claim fair use"

There is a big gap between "D&D is copyrightable" and getting into "The Wind Done Gone" transformative fair use defences.  Fair Use only arises as an affirmative defence to prima facie copyright infringement.  But publishing Kalamar with 4e stats is not necessarily reproducing - copying - or deriving any copyright-protected material from D&D.  There's a big difference between a sourcebook or scenario and a rules book.  You couldn't make rule books like OGL Conan or Labyrinth Lord without the OGL, they are pretty clearly derivative works.  There is an arguable case that a 3rd party work that makes significant use of WotC creations like Beholders and D&D-specific Drow (though not 'Dark Elves') might be a derivative work in US law, though it's not a slam-dunk. 

But a generic fantasy world with orcs, elves, dwarves and hobgoblins owes nothing to WoTC-owned IP.  I do think there is potentially an issue with stat blocks; 3e & 4e stat blocks start to look substantial enough to be copyright-protectable works.  But all that needs to be addressed BEFORE there is any question of Fair Use defences arising.