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Monday, October 24, 2011

Is Wizards' Latest Cease and Desist an Introduction to D&D 5E?

(see http://timbrannan.blogspot.com/2011/10/more-osric-players-guide-woes.html for details)

Why is WotC suddenly getting defensive about the OSR? There are hints that D&D 5E, when it comes about, is going to be more "old school" in feel, if not execution, but is that a reason to issue a Cease and Desist on artwork that has been making the rounds of the OSR for years? Better question is does this Cease & Desist apply to those that have used the art in question over the past years, or just the latest OSRIC Player's Guide? If the offending art is removed from the book, is the book now in compliance?

Yes, I'm full of questions today. I'm just trying to figure out why artwork that has been in use for years is now in violation of WotC's IP. I need to look at the offending artwork and see if it replicates any WotC / TSR artwork. I sincerely doubt it does, but I'm not a lawyer (and I thank the Lord for that - I coulda been ;)

48 comments:

  1. Can anyone confirm that it was artwork based on this rubber monster which was used as a D&D monster that's included in the OGL / d20 SRD is the source of the C&D?

    That seems really unlikely - but I'm late tuning in so maybe I missed details in some of those deleted blog/forum posts.

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  2. It is really odd that years old pieces of art in an OSRIC work are suddenly an issue for WotC.

    I really didn't think WotC paid attention to Old School publications...

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  3. Is it certain this isn't some kind of sick prank?

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  4. Was it an issue of the artwork being more or less traced / copied too closely rather than the actual subject of the artwork?

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  5. I'm beginning to think the issue here is OSRIC is not published under the OGL (if I recall correctly) therefore it doesnt have the protections afforded by the OGL.

    You can't copyright game rules, but you can copyright art. So that might be the angle used here.

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  6. and i think i recall incorrectly... ah well... another fine idea proven wrong ;)

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  7. As I understand it, the offending images are original pieces, but they depict protected content; one of them's a picture of a beholder, I believe.

    It all seems a bit fishy to me as it's original work, regardless of the subject, but I'm no expert.

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  8. The artists public statements (now deleted) are as kelvin reported, above. The Beholder and Rust Monster appeared in some stock art, which had been on the market at RPGNOW for years. I don't know if the art appeared in the Player's Book. According to Steve, the C&D was directed at the stock art pack, but he pulled everything down, with an eye towards assessing the entire situation.

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  9. I strongly suspect, this was WotC doing a little saber rattling, just so no one gets too casual about their IP.

    With so much OGL activity going on, I see where they might decide to draw a hard line in the dirt.

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  10. This comment has been removed by the author.

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  11. @Bree Yark!: Can you let us know if this is an issue relating to just a drawing of a single monster or if this involves a claim against more than one item?

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  12. @Bree Yark: The whole thing is just... strange. Going after an art product that's been up for a few years is really weird.

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  13. I'm curious about a C&D via e-mail. I would ask that the sender submit the letter via traditional methods, that of registered mail. Upon its receipt, I would call the office and make an appointment to speak to the attorney who drafted it. There's nothing wrong in asking for clarification.

    I say this because headers in e-mails aren't impossible to forge and it couldn't hurt to make sure this is a legitimate grievance.

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  14. Smells fishy to me....

    Good Publicity though :)

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  15. >>I really didn't think WotC paid attention to Old School publications...

    They do, and have since OSRIC was first released.

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  16. @sean willis - Good Publicity for who? Bree who had to pull his product line from OBS and closed his blog?

    Or for WotC? 99% of their consumers have little to no idea the OSR / Old School Gaming even exists.

    Somehow I expect that this is only the first C&D request this corner of the hobby is going to see in the near future. I hope I'm wrong...

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  18. It's possible they may get a bit more vigilant about things, but I really don't see some great era of persecution, heading the OSR's way. :)

    As for 5e, blog post on why I don't think it's really going to matter, coming soon.

    Because I can spread around my bs opinions, with the best of 'em. :)

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  19. This comment has been removed by the author.

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  20. @bree yark! My thoughts (not yours) is that the someone who put out two products in recent weeks that infringed on copyrighted art (previously published by TSR/WotC) and material that wasn't released under the OGL, but then used the OGL in their work, might have wakened the sleeping giant. Or maybe it's just that time in the cycle of things for it to remind this corner of the hobby who's boss.

    @James - If you have a blog, you're in the media, making you "an expert" on the subject matter. I look forward to your thoughts :)

    My thoughts are conjecture. If I had other evidence then circumstantial and the voices in my head, believe me, I'd show it ;)

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  21. Also, I think OSRIC in particular has been a sore spot for WotC. I don't believe Stuart Marshal and the powers that be ever negotiated the issues succesfully, with WotC having the stand the it felt OSRIC went beyond the bounds of the OGL, but they never persued it.

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  22. I remember reading where Stuart wrote that a WotC employee contacted him and Stuart then informed said employee that OSRIC was an OGL release and to have WotC Lawyers contact his legal representative if there were any further questions. :)

    From what I gathered, that was pretty much the extent of it. I know of no official statement from WotC, regarding OSRIC.

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  23. So is this an OGL issue, or a regular copyright issue? Was the Art Pack published with the OGL license and/or did it include names for the monsters in the illustrations or was it just some drawings?

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  24. @James - I believe Ryan Dancy alluded to it on ENWorld a few years back. The issues were experiences tables and the combat matrix / chart.

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  25. Bree Yark! has stated in one of his deleted comments that the C&D was via email. He also said:

    "I recently received a C&D order from WotC. According to the C&D order, they claim two of my drawings from one of my stock art packs violated their copyrights to the rust monster and the beholder.

    It has nothing to do with the OGL/SRD (my stock art didn't use or refer to it), it was not about trademarks or names (there were no names used). There weren't any stats or descriptive text given. Just the images.

    Also keep in mind, these were drawings I did myself, and they were original (they were not copies of a specific picture).

    Furthermore, the stock art was put up for sale YEARS ago. According to the C&D order, they had just become aware of it.
    "

    As he said, the two images appeared without description or name and they appeared in the character creation and spells sections respectively. Being a player's guide there is no monster section.

    His "rust monster" image is pretty well identical to the rubber monster on the right in the link from Stuart (first comment above). Given that the monster pre-dates anything by Gygax and given that Bree Yark! didn't in any way identify it as a rust monster, I can't see that WotC has a leg to stand on.

    As for OSRIC, Stuart Marshall stated:

    "WOTC did issue me with an email asking me to cease distribution of OSRIC when it first came out. I said no."

    Bree Yark! likewise received an email. Perhaps he should've simply said no too. I'm beginning to think he gave up too easily. Does a C&D have to be in writing to be legal? Does an email suffice? Could the email be a prank by someone who wanted to stir things up for fun? It's certainly easy enough to fake such a thing, conmen do it with fake bank and ebay emails all the time. I'm with Christian, I'd be making inquiries before doing anything about such an email.

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  26. @ Tenkar - You're going to send me googling, now! :)

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  27. @james - hopefully your google-fu and my memory meet somewhere close ;)

    I think the comments were from 2007

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  28. Oh, my google-fu rocks. Here's Mr. Dancy on Enworld.

    "I have problems with OSRIC. I believe that some of the content in OSRIC is copyrightable, and that it has not been shared by WotC via the OGL. Specifically, I will mention the class charts & the to-hit charts. These charts are copyrightable; they are not simple expressions of a mathematical formula, but contain specific human-selected values in certain areas. The courts have repeatedly found that such tables are protected by copyright.

    "I think that it is very difficult to "recreate" a pre-existing RPG system without crossing that "invisible iine" between copyright and not-copyrightable. I'm not saying it can't be done, but the more "quirks" that system has - the more it relies on non-intuitive game systems, and less on simple math, the harder it will be to safely clone. I think it would be nice, but not likely, for WotC to add OSRIC to the SRD, which would clearly put it under the OGL, and clear up any potential confusion about the matter."

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  29. yep, that's the dancy quote i was thinking about

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  30. Mr Dancy doesn't have the faintest clue what he's talking about.

    I mean, he knows the OGL. It's just that he hasn't compared the OSRIC class charts and "to hit" charts with the AD&D ones.

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  31. The Cleric to hit charts are identical in all but formatting. Ditto for the Thief to hit charts.

    The Fighter charts use the alternate scheme mentioned in the DMG, where the Fighter improves by one every level instead of by 2 every other level.

    The MU charts differ, with OSRIC's MU having a poorer chance to hit at higher levels.

    Monster To Hit values differ. OSRIC's monsters are a tad tougher! :)

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  32. Believe it or not, the formatting's the important bit!

    Game rules cannot be copyrighted. Simple algorithmic progressions cannot be copyrighted. But there's precedent to suggest that a table format can be copyrighted even if the data within it is not. This is a case where OSRIC avoids breach of copyright by presenting the data in a different way.

    And that's the whole nature of OSRIC. The underlying game rules and algorithmic progressions are not copyright, but the presentation and format, the exact choice of words, the layout of the tables, etc. is copyrightable and copyrighted. Thus to avoid breach of copyright, all I need do is change the presentation.

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  33. I certainly wasn't attempting to support Mr. Dancey's argument. Merely bringing forth what facts I could, since I can't bring forth very much regarding the nitty-gritty of the law, here.

    As always, whatever support I have to offer goes to OSRIC and The First Edition Society.

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  34. I smell more of Steve needing to be at the forefront of the OSR than anything from WotC. Absofuckinglutely funny how everything is hidden and secret with this mysterious C&D.

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  35. Wow...the very thing I was talking about the other day and the very thing I have been preaching about for some time.

    There are so many violations currently circulating, both free and commercial, that they can have a field day. Part of Dancey's bit refers to the level titles being used in the charts that I mentioned the other day as well.

    Yes, they read our blogs, yes they don't like the fact that we exist and would love to find a way to get rid of us.

    Just remember, the company currently kicking their ass in sales uses the same license and material and they wouldn't mind taking out two birds with one stone.

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  36. Also keep in mind, these were drawings I did myself, and they were original (they were not copies of a specific picture).

    And this is the key thing to me. I'm nowhere near an expert, but I'm not sure they've got a case here if it's original work, regardless of the subject.

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  37. If it was a Beholder and a Rust Monster it's not exactly like those are original creations in the first place...

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  38. Stuart we've had this conversation before and I hate that it has put us on opposite sides of the fence since we agree on more than we disagree on (yes, I read your posts :).

    I don't know how Canadian law is but under U.S. law if you DON'T defend your IP you can lose it. The courts force companies into action.

    As for what they call IP the Yuan-Ti is not original at all but an ancient mythological creature and yet they insist on it being their IP.

    We will see more of this. They are in deep trouble and they will be going after this again and again because they have deep pockets.

    There is only one rule that counts in the U.S.- if the little guy finds himself standing in a court of law, even if he is right, he has already lost.

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  39. @ADD Grognard née AD&D Grognard:

    You are confusing Copyright and Trademark law. Trademarks that are not enforced can become genericized so companies need to defend their trademarks to prevent this from happening.

    Copyrights do not need to be enforced to prevent them entering the public domain. Orphaned works are undefended but do not automatically enter the public domain. They are still copyrighted.

    The words "Yuan Ti" are copyrighted (and possibly trademarked?) to TSR/WotC/Habsro. The concept of "Snake Man" is not. Similarly "Illithid" and "Mind Flayer" are product identity (aka Copyrighted) but "Squid Headed Psychic Cultist or Alien" is not.

    There is only one rule that counts in the U.S.- if the little guy finds himself standing in a court of law, even if he is right, he has already lost.

    This isn't true. There's also a risk to a company filing a groundless lawsuit that can't be underestimated, particularly in the age of social media.

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  40. This business of lawsuits being won on the depth of your wallet rather than the strength of your case is one of the reasons why I took editorial responsibility for OSRIC and Matt Finch did not. I'm British.

    Well, so's Matt Finch, technically--he has dual nationality--but he lives in the states and has practised law there. I've never set foot in the US, and I do not submit to US law or US rules of procedure. And the OGL doesn't specify choice of law.

    This is something that many people who've given a less than fully informed opinion about OSRIC, including lawyers such as the esteemed Mr Kenzer, have failed to grok. If anyone wanted to take action against me they would have to do so under the law of England and Wales, under which, the loser pays the winner's legal costs. Thus I could engage lawyers to defend me on a "no win, no fee" basis. (Before publishing OSRIC, I spoke to a law firm and made sure they would accept instructions of this kind.)

    Of course, in 2011, we know much more about what WOTC will overlook, from the OSR, and what they will attempt to shut down. But back then we were planning for a worst case scenario.

    We were confident that OSRIC was perfectly lawful, but we weren't confident that WOTC would accept that. Now we are.

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  41. @Stuart Marshal - that is an extemely insightful post in the developement of OSRIC. Well played!

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  42. Good, I'm glad you thought so. :) I'm trying to be open in the hope of reducing the amount of speculation.

    You see, periodically, there are bouts of internet speculation about legal issues involving the OSR. These never seem to involve Labyrinth Lord, or S&W, but I've noticed that OSRIC is always mentioned!

    Once you connect the word "OSRIC" with words like "compliance" and "infringement" and "cease and desist", what you're doing is, you're damaging my business. OSRIC's advertised in one place: online. I have to be mindful of what people see when they search.

    Don't get me wrong. I understand why people are interested, and I know why there's a resurgence of interest now. What I do ask is that later on, you try to balance this discussion with a subsequent discussion that isn't about copyright issues or legality, please!

    Thanks very much

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  43. Stuart we have been over this ground and you still do not grasp U.S. copyright law (which is where I live and have to abide by said laws).

    You can not 'copyright' a word. You can trademark it.

    This art situation seems to fall in that gray area of dilution, where if a product appears to be something it is not and a customer might mistake it for another companies product they ask that it be removed.

    The Yuan-Ti situation is a matter of license, not copyright or trademark. This is the place where people misinterpret the OGL most often.

    When you use the OGL, and by that I mean any IP contained in the SRD, you are agreeing to do things and waive certain rights that would otherwise fall under copyright law.

    You can't pick and choose which parts of the SRD and the OGL you want to comply with. It is the most straight forward license I have ever seen and there is no 'wiggle room'. Because you say something is 'groundless' that doesn't mean a judge will agree with you when he or she is presented with the OGL and sees that it is a valid license that has been in use for a decade.

    There is no law that says you have to agree to the OGL. But if you use the SRD material you are agreeing to abide by the terms of that license and it would take precedent over standard copyright because you have waived protection under copyright law.

    @Stuart M.- Hey, you guys got on the map because you were the first to do this and survive basically unchallenged. A little controversy every now and again is good for business. Doesn't affect my opinion of you and your product at all. ;)

    Keep up the good work!

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  44. @Stuart M - OSRIC was my introduction to the OSR (after C&C). I don't see this as a reflection on you, or OSRIC, but rather 3rd parties.

    I do find WotC's response to be interesting, as much as the timing as anything else/

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  45. Stuart we have been over this ground and you still do not grasp U.S. copyright law (which is where I live and have to abide by said laws).

    I understand U.S. copyright law and when I don't I have a team of lawyers who I can, and do, ask for clarification. This includes asking for clarification around these topics so that I know I'm not shooting from the hip.

    Do you have any sort of professional background in this area or frequent access to legal counsel, or are you just an enthusiastic blogger? :)

    You can not 'copyright' a word. You can trademark it.

    That's true, but it's not quite what we're talking about. The Gaiman vs McFarlane case was about copyright and not trademark.

    You can copyright character. I could publish a story about a Japanese Schoolgirl and name her "Yuan Ti". I could not publish a story about snake-men and name them Yuan Ti. Similarly I couldn't publish stories with Squid headed men named Illithid, Quarren or Ood. I could publish a story with squid headed men named Squidlar though.

    There is no law that says you have to agree to the OGL. But if you use the SRD material you are agreeing to abide by the terms of that license and it would take precedent over standard copyright because you have waived protection under copyright law.

    It feels like you are suggesting, as you have before, that if you were to publish something with material that was also included under the OGL/SRD you would be compelled to abide by the terms of the OGL/SRD and give up some of your rights. For example if you were to include "Goblin" or "Vorpal Sword" or had a "Shambling Mound" monster.

    This is not the case at all. You can't trick people into agreeing to a business contract.

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  46. To be surrounded by lawyers and yet none seem to be able to read:

    OGL 1.0a

    3.Offer and Acceptance. By using the Open Game Content you indicate your acceptance of the terms of this license.

    How is that a trick? That is as plain English a clause as you will ever find in a license.

    And my ass rides on my words everyday. I publish (first alpha out and more material to follow) so I make damn certain I know what something means before I publish it.

    As for repercussions:

    From The OGL FAQ:

    Q: What are the penalties for violating the terms of the License?

    A: You are potentially liable to three groups of people, for various types of lawsuits.

    First, you could be sued by anyone listed in the COPYRIGHT NOTICE section related to any Open Game Content you copied, modified or distributed. Second, you could be sued by anyone who receives Open Game Content from you and relies on you to ensure that your work conforms to the terms of the License who subsequently discovers problems with the Open Game Content they received from you. Third, you could be sued by someone with a copyright or trademark interest in the work you've distributed, even if you did so while relying on a previous publisher's representation that they had followed the terms of the License.

    You could be sued for a copyright infringement, you could be sued for misuse of a trademark, you could be sued for breach of contract, and you could be sued for any number of torts related to those three actions.

    If you have concerns about the scope of your liability under the Open Game License, you should consult with your legal counsel.

    I think that's pretty clear there.

    I'm not some 12 year old blogger, Stuart. My background is sales, marketing, stock market and mortgage firms. And it doesn't hurt that I can read.

    As for the 'trick' part, you might want to check out how Microsoft is able to enforce a EULA by you just switching on the power to your new computer the first time. There is a way around it, but you have to know how to do it.

    Your apples and oranges approach to the 'Yuan-Ti' reference is irrelevant. We are talking about gamers making games out of game material. Thus the license is enforceable. The Apple lawsuits proved that time and again.

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  47. To be surrounded by lawyers and yet none seem to be able to read

    Clearly this is the only possible explanation. :)

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  48. ADD Grognard:
    "3.Offer and Acceptance. By using the Open Game Content you indicate your acceptance of the terms of this license."

    By posting on this blog thread you have all indicated your acceptance that you are slaves of mighty S'mon! Kneel before me, vassals!! :P

    Or: no, Contract & IP law don't work like that. At all. *sheesh*

    -S'mon, 8th level law lecturer.

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