Tuesday, January 17, 2023

Legal Musings

Back when (the American version of) The Office was running, I made every effort to catch every episode (which was back before I had cable and access to DVR technology). I found a YouTube link to what is one of my absolute favorite scenes in the entire series:

For context, if I'm remembering correctly, Michael had left the Dunder-Mifflin company over being reigned in by on-site corporate stooge (Charles) and then formed his own paper company (with Pam and Ryan) in Jerry Macquire-esque manner. The D-M corporates confronting Michael in this scene have decided it is easier and more convenient to buy out Michael, ending his enterprise, rather than compete with his tiny company in an already-shrinking market.

The analogy of this scene doesn't map 100% to the RPG market, but there are lessons to be learned. 

Copyright law, in its current form, is pretty much an American invention...despite its origins in England/Europe...and was structured to serve an American objective: encourage industry. If anyone were allowed to copy, distribute, and profit from a creative individual's work (without paying the initial creative) than what incentive would there be for the creative in question to, well, create? Why would ANYONE be bothered to put in the effort and sweat of creation just to see someone else, with an eye for profit and a better marketing team, steal your work and reap the benefits?

The ability to copyright one’s work exists to incentivize creators to create.

But while holding a copyright provides some protections versus would-be thieves and liars (i.e. “plagiarist profiteers”), it is not an all-encompassing carte blanche. The term “fair use” in copyright law is (yet again) a concept originating in America designed to encourage and incentivize industry, rather than stifle such possibilities because of the fear of litigation. Fair use is the reason the Margaret Mitchell estate (Gone with the Wind) was unable to stop the publication of The Wind Done Gone; fair use is the reason Oracle was unable to stop Google from using Oracle's Java API code in Android phones.

Two things to always consider: 
  1. copyright law protects the expression of an idea, not an idea itself
  2. copyright law is designed to promote creative industry
Copyright law is different from trademark law. You can't write a game and call it Dungeons & Dragons; "Dungeons & Dragons" is a trademarked property. But trademarks mainly apply to brands and logos: "Dungeons & Dragons" (and "D&D") are trademarks of Wizards of the Coast/Hasbro. "Wizards of the Coast" and "Hasbro" are ALSO trademarks of Wizards of the Coast/Hasbro.

"Mind flayer," on the other hand, is not trademarked property.

If I write an adventure that includes an encounter with a mind flayer, am I infringing on WotC's copyright? So long as I don't include the creature's stat block (i.e. the expression of the idea of "mind flayer"), then probably not. Could WotC sue me over the use of their intellectual property ("mind flayer") without permission? They could, but they wouldn't have much of a case: the main argument they could make is that I am siphoning off their business, which is a bogus claim for a number of reasons, the main one of which is this:  WotC/Hasbro does not hold a monopoly on adventure writing.

Again, copyright law exists to encourage creative industry. Fair use exists to encourage creative industry. My use of a mind flayer in an adventure does not prevent WotC/Hasbro from selling books; on the contrary, if it is a popular/successful publication it probably encourages consumers to purchase more books in order to make use of it. And it does not prevent WotC/Hasbro from publishing their own adventures which might include mind flayers...it does not replace/supplant their ability to do business in this vein, for a number of reasons that should be rather obvious.

[okay, just in case it's NOT obvious: WotC/Hasbro would have to somehow prove that they have sole rights and privilege to publish D&D adventures, which would go against decades of examples to the contrary and would also be the same as proving they have the right to a monopoly...which courts in the USA tend to look down on]

But what if I wanted to write a supplement called "All About The Mind Flayer" describing the creatures' culture, society, and statistics; creating an entire variant background and description of how to use the monster in one's game? A definitive collection of gameable content; an "alternate history" of mind flayers, if you will...would THAT seek to subvert and replace a key intellectual property of WotC/Hasbro? Would it be perceived as undermining their business? Could the Hasbro corporation file a lawsuit against me?

Let's be clear: persons and corporate entities can ALWAYS sue you. 

Doesn't mean their lawsuit will be successful. And D&D has been explicit in every iteration that they fully expect owners of the property (Dungeon Masters) to feel free to create their own worlds, modify the game to suit their needs, change it as they see fit.

Yes, JB, sure...but monetize those changes? Isn't that infringing on the company's copyright?

Remember: fair use. A doctrine established to prevent the stifling of innovation and the discouragement of creation for purposes of industry (our delightful capitalist society). In this particular situation, it's instructive to check out the landmark case of Sega v. Accolade. Despite it being with regard to video games, many parallels could be drawn in a hypothetical legal battle with the publishers of Dungeons & Dragons. In brief:
  • Accolade (video game maker) reverse-engineered Sega technology to create video game cartridges that were compatible with Sega's new Genesis console, circumventing Sega licensing.
  • Sega sued receiving an injunction against Accolade, citing in part Accolade's unlicensed use of Sega's (copyrighted) computer code in their game design.
  • Accolade appealed and won based on fair use doctrine; the injunction was lifted, Sega was forced to pay the cost of the appeal, and precedent was set for decades to come including that functional principals of computer software cannot be protected by copyright law.
The case is worth reading (and studying), not the least of which for its later ramification on trademark law. Are "functional principals" of computer software much different from the "functional principals" of a roleplaying game? That's something that would need to be decided in court, but given the plethora of RPGs that have made it to market using similar language and terms as D&D (and which haven't been sued to death), my guess is: not bloody likely.

[and Hasbro could hardly argue an independently published book "Compatible with the World's Most Popular RPG!" tarnishes their trademark brand. Even a low quality product is just more evidence of the ubiquitousness of their product. Apologies for the digression]

However, in the end, the real question is always one about MONEY. How much money gets made by independent publishers? How much money does the corporation lose because of third-party publishers? How much money would it cost them to litigate every perceived infringement (not just issue a "cease & desist" notice) given the doctrine of fair use and the potential impact to the company's bottom line?


It's difficult to imagine that Little Ol' Me might ever fall into the crosshairs of Hasbro's corporate attorneys given how little money I represent, especially when I've gone out of my way to NOT use their registered trademarks (or "mind flayers") in my published books. I mean...really? To paraphrase Michael Scott, I can just start a new game company tomorrow...I have LOTS of names for game companies.

But that's ME...a hobbyist game publisher. I don't need to sell books to live...to eat or to pay rent. I do it because it's enjoyable and it's a creative outlet and because it's put a little extra money in my pocket, somewhat validating my participation in the hobby. Other people...people more financially invested or leveraged in the hobby...might be a LOT more "risk averse" than I am.

Thing is: I AM risk averse. I've been sued before (an old medical bill that wasn't covered by my insurance went too long overpaid when I was living in Paraguay for three years...eventually got straightened out); not a pleasant experience. I spent 15 years working in a field that involved interpreting, establishing, modifying, and enforcing superior court and administrative orders. My advice to folks has always been to stay on the right side of the law and work within a system, rather than trying to circumvent it...keep your nose clean, in other words.

And, in my estimation, that's exactly what I'm doing. 

I don't use the OGL in my books. I've entered no licensing agreement with WotC/Hasbro, free or otherwise. My books use my own text, copyright me. Many concepts and ideas are inspired by and/or borrowed from other games and RPGs (as well as works of fiction). I don't plagiarize. I try to give credit for inspiration and ideas when and if it is due, but it's impossible to cite ALL the creative influences on one's work. When my work is compatible with an existing work or game, my hope is that it will encourage people to play that particular game...raising all tides, so to speak. 

That's the biz, as I see it. And while 'good intentions' really don't matter (certainly not compared to money, sadly) I am still participating in creative industry...exactly the kind of creative industry that copyright law is designed to encourage and incentivize. 

Okay...that's enough for the moment.

1 comment:

  1. Thanks for this, I found it interesting.

    The situation in the UK is much tougher, as we don't have 'fair used but instead 'fair dealing', which is a harder test. Also in the UK the majority of the test lies with the infringer rather than copyright holder.

    See: https://en.m.wikipedia.org/wiki/Fair_dealing_in_United_Kingdom_law