Joel's Treatise

Now that the work is derivative, what rights does the author of the new work have? According to The Writer's Legal Companion,

"Both compilations and derivative works may be copy- righted. But the...Copyright Act protects only materials contributed by the author of the work--not the preexisting material.... The author of a derivative work finds originality in changing an earlier work. Assuming these changes result in a distinguishable version, different from the earlier work, they are copyrightable."

Therefore, everything created by the author of the derivative work can be copyrighted by that author; the owner of the copyright of the original material has no rights to the new material. However, if any original material is included and/or paraphrased, the original owner maintains sole copyright over just the original material. New material is still copyrightable by the work's author, as long as it is distinguishable from the old work as being an addition of new material. Thus the author of the new work may copyright the material he created, and gains all the rights thereof.

What rights are granted to a copyright holder? Here they are, right from the proverbial horse's mouth:

Exclusive rights in copyrighted works. Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

• (1) to reproduce the copyrighted work in copies or phonorecords;
• (2) to prepare derivative works based upon the copyrighted work;
• (3) to distribute copies or phonorecords of the copy- righted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
• (4) in the case of literary, musical, dramatic, and choreographed works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and
• (5) in the case of literary, musical, dramatic, and choreographed works, pantomimes, and pictoral, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly.

Therefore, the author of the derivative work has the sole right to exercise these five rights in respect to the work.

In any case, backtracking a bit, the author of a derivative work must usually ask for permission to create it from the holder of the copyright of the original work. USC S. 201(d), states that any one, any combination, or all five of the exclusive rights granted in a copyright may be transferred and held separately. However, transfer of "exclusive" rights (giving an exclusive license) means that the original copyright holder no longer may exercise any rights thus transferred without terminating the transfer, as outlined in USC S. 203 ff., and preventing the licensee from exercising that right without a new transfer. Since TSR still retains full right to create and distribute its own derivative works, there is not an exclusive license in existence. However, there may be a nonexclusive license.

The Copyright Handbook creates the definition "Nonexclusive license," meaning, "giving someone the right to exercise one or more of a copyright owner's rights on a nonexclusive basis. Since this does not prevent the copyright owner from giving the permission to exercise the same right or rights at the same time, it is not a transfer of copyright owner- ship." (Fishman, p. 9/2) This book goes on to say,

A nonexclusive license is not a transfer of ownership; it's a form of sharing. The most common type of nonexclusive license is one granting an author permission to quote from, photocopy, or otherwise use a protected work; such licenses are often called permissions...As with exclusive licenses, nonexclusive licenses may be limited as to time, geography, media, or in any other way....It is not necessary to have a formal contract...to grant a nonexclusive license....An express written or oral agreement is not always required to create a nonexclusive license. A nonexclusive license can be implied from the circumstances--that is, where the circumstances are such that a copyright owner must have intended to grant a nonexclusive license, it can be considered to exist without an actual agreement.

I think that this is an important point, and bears repeating. A nonexclusive license may be granted a) without a formal contract, and b) without even written or oral agreement, by implication that such a license was obviously intended.

Was such a license obviously intended? Let's examine some of the evidence:

Take the time to have fun with the AD&D rules. Add, create, expand, and extrapolate. Don't just let the game sit there.

[When your character is doing magical research] you should first write up a description of the spell you want to create. Be sure to include information on components, saving throws, range, duration, and all the other entries you find in the normal spell listings.

Many more references such as these abound in material put out by TSR. I think that it is pretty safe to infer a nonexclusive license from these passages. And, since any new material created under such a license may be copyrighted by its author, the author may enjoy all the rights and privileges thereof, including distribution. Therefore, when TSR says that this customer-created material "may not be published or redistributed except through MPGNet or TSR," they are putting words in the author's mouth which he may not wish to say. If the author wishes to, he could place such information on any ftp site in the world for distribution, or even print a paper copy, photocopy it, and mail it to all of his friends for use in their campaigns. It is the author's right. In fact, they were wrong to force sites carrying such material to close public access to the material, if not erase it completely from the database, for this very reason. It is not their place, as (barring scanned in copies of existing TSR material), they do not own the copyright to, and therefore have no say over how such derivative works are distributed.

Notwithstanding all of the above, some people feel that the amount of borrowed material is small enough that such a new work would not be considered a derivative work of the existing material; and any such borrowing of expression would not need permission, as it would be a "Fair Use." Since there are some valid points to such an argument, and it is not completely obvious which way such a use would lie, what follows is a corollary argument, why such material could be considered a fair use and thus be completely out of TSR's jurisdiction to permit (or not) its distribution. Either way, whether derivative or fair use, TSR may not prevent the author from distributing such material in any way he wishes.

First, the definition of "fair use," as it appears in the US Code:

Limitations on exclusive rights: Fair use. Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--

• (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• (2) the nature of the copyrighted work;
• (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• (4) the effect of the use upon the potential market for or value of the copyrighted work.

The Copyright Handbook states how fair use applies to possible derivative works:

Even if a derivative work's author uses someone else's protected expression, permission may not be required if the use constitutes a fair use. Pursuant to the fair use privilege, an author may take a limited amount of the protected expression in pre-existing works without the copyright owner's permission.

The important thing to remember here is that it is the amount of the original which is taken which matters, not what percentage of the new work is old material. In addition, if nothing is quoted or paraphrased, (no existing expression is taken), an idea put forth in copyrighted material may be freely used, as

Facts and ideas are always in the public domain. For this reason, an author need not obtain permission to use the facts and ideas in an otherwise protected preexisting work...but he neither quotes nor paraphrases any of the material in the book. [It] is not a derivative work [and he] need not obtain the permission...

However, it is the fourth criterion for fair use (effect on potential market) which is the most important, rather than the third (amount of material taken from the original), according to certain sources.

Fair use, when properly applied, is limited to copying by others which does not materially impair the marketability of the work which is copied.

In this case, "copying" also refers to derivative works.

The effect of the use upon the potential market for or value of the copyrighted work, according to the U.S. Supreme Court, is 'undoubtedly the single most important element of fair use.'

In light of this evidence, it is possible for TSR to claim that widely distributed derivative works made available at no cost could cut into the profit potential and marketability of any of its own derivative works. However, I think the opposite is true, and this applies somewhat for derivative works as well. If there is a proliferation of material which requires ownership of TSR materials to use as is, then sales of TSR materials could actually increase as customers buy the material required to use these works, and then decide to purchase "official" material. The vast majority of other game companies view the situation this way, including West End, SJG, and id (the latter in respect to the creation and availability of user-created add-ons for their games "Doom" and "Doom II"). The availability via the Internet, or via a circle of friends, of products created for these games, whether created by the companies or not, enhances, rather than detracts from each company's copyrighted products.

Despite all of the above, TSR's policy statement was correct in advising that the easiest way around this situation is to create "generic" works, which basically consist of just a verbal description without game mechanics. These works can are easy to translate to any game system and allow all GM's to create their own solutions as to what the game mechanics for the work in question should be, and avoid the entire "derivative/fair use" argument entirely. However, this misses the point. Just because it is easier doesn't make it the sole solution. I think I have shown above that it is the authors' right to distribute such works however they desire, whether or not they include a few game mechanics.

In summation, I think that this entire situation can be easily and relatively painlessly resolved by TSR doing four things. First, by revising the disclaimer, striking out part of the second sentence ("is made available by MPGNet through license from TSR"), and striking out the last sentence and allowing each author to include his or her own distribution statement (for example "personal use only," "freely distributable and may be used as the basis for further derivative works," or "freely distributable in this form only"). Second, if TSR wishes to maintain one or more "licensed" ftp sites, wherein the material included passes TSR's standards for acceptability, but is still "unauthorized," or is actually created and distributed by TSR itself, that is fine, as long as non-licensed sites are allowed to exist. (Think of the prestige people could feel at having their material available at an "official" site, even if the material is officially "unauthorized." Also, consider the "Build a better mousetrap" idea: if an ftp site gains a reputation for consistently having the best material, whether it is affiliated with TSR or completely independent, people will come flocking, as they did to the old greyhawk.stanford.edu archive.) Third, a public statement (preferably via the Internet and/or in Dragon™) which outlines the entire official policy. Fourth, an apology to the one group targeted and most affected by the original policy: the gaming community so loyal to AD&D™ that they chose it over all the other rpg's out there as the basis to create their spells, creatures, rules variants, stories, etc. It is this group that purchases a large chunk of TSR products, and TSR cannot afford to chase their own customers away.

Selected Bibliography

Bunnin, Brad, The Writer's Legal Companion, Reading, MA: Addison-Wesley Pub. Co., 1988. Fishman, Stephen, The Copyright Handbook: How to Protect and Use Written Works, Berkeley, CA: Nolo Press, 1994. Nimmer, Melville, and Nimmer, David, Nimmer On Copyright: a treatise on the law of literacy, musical and artistic property, and the protection of ideas, New York: Matthew Bender, 1993. Strong, William S., The Copyright Handbook: A Practical Guide, Cambridge, MA: MIT Press, 1990. U.S. Congress, Copyright Law of the United States of America c contained in Title 17 of the United States Code, Rev. to March 1, 1991, Washington, D.C.: Library of Congress, U.S. Copyright Office, 1991.