First Inklings of Legal Research

The following is from The MultiMedia Producer's Legal Survival Guide by Ian MacIntosh. It was produced in association with the law firm of Pillsbury, Madison and Sutro: Page 10, paragraph 3 (Irrelevant parts of the paragraph have been replaced with ellipses. No cogent info has been removed.) "Several categories of material are generally not eligible for statutory copyright protection. These include, among others: Works that have not been fixed in tangible form of expression. For example: choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded. Titles, names, short phrases and slogans; familiar symbols ...;mere listings of ingredients or contents. Ideas, procedures, methods, systems, processes, concepts, principles, discoveries or devices, as distinguished from a description, explanation, or illustration." There are many places the Copyright laws go out of their way to distinguish between implementations, which are covered, and ideas which are not.

One of the things that the copyright book mentioned is that you cannot even register a copyright on a "form". They simply aren't copyrightable, no matter what. (Directions for filling out the form, or artwork (but not "blanks" or "fonts" or "separators") may be copyrightable.) However, I don't think TSR has a half leg to stand on when claiming that you can't distribute a blank character sheet. But hey, I don't get paid enough to be a lawyer, so consult one if you plan on fighting TSR.

See Nintendo v. Atari, in which it was ruled that if, to produce software (derivative work requiring usage of knowledge of the construction of the processing system on which it is to be run), a developer must infringe on the copyright of the manufacturer of the system by (in the specific case) acid-stripping the chip and duplicating copyrighted codes which must be passed back to the console to cause proper function, this constitutes fair use. Basically, Nintendo had claimed that nobody could make software for their consoles without their permission because they owned the copyright to the software of the processor and they had constructed it such that you had to duplicate parts of that software to make it work, and the court ruled that that constituted restraint of free trade.

I am not sure how many people are aware of this but the computer company Borland tried to pull the same stunt a while ago concerning their latest programming language Borland c++ v4.0. Borland attempted to monopolize the market by putting a number of incredibly stupid clauses into their license agreement. They came under fire from all sides for this and in the end had to back down with in affect a formal apology. Perhaps TSR could learn a lesson from this.

From "Copyright Law of the United States of America (rev. Mar 1 1991)" [the following exclusive rights are given to holders of copyrights] "1. to reproduce the copyrighted work in copies or phonorecords. 2. to prepare derivative works based on the copyrighted material. 3. to distribute copies of the copyrighted 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 work, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly. 5. in the case of literary, musical, dramatic, and choreographed works, pantomimes, and pictoral graphical, or sculptural works, including the individual images of a motion picture or of the audiovisual work, to display the copyrighted work publicly." [It goes on to say that, due to the Berne Agreement, these rights are valid internationally as well, in countries which are part of the Berne Agreement.] All internet related activities (Usenet, and ftp, to name two) are included under #3, by recent court decisions. Anything we create about/for AD&D(tm) comes under #2. Since TSR has the copyright, it has the copyright to any derivative work you create, unless your work is different enough so as to relate to rpg's generically. The disclaimer TSR is asking us to put on the stuff we create is perfectly legal and correct. It is their 'blank check' allowing us to create and distribute electronically our derivative works without actually going to them for express permission each time; so long as we follow their rules. To put all this in simple terms: if you create a derivative work of AD&D(tm), you do not have the copyright to it. TSR does. Unless it is generic enough to apply to many game systems. This includes paper & electronic distribution.

This is from "Nimmer On Copyright", and the last update to it is 1987, which is pre-Berne. This book doesn't appear to cover software copyright at all. So it's a little out of date, however, section 2.12, page 2-171: Subject Matter of Copyright: Characters. "Is more properly framed as relating to the degree of substantial similarity required to constitute infringement rather than in terms of copyrightability per se." "Although there is some conflict... characters per se are entitled to copyright protection." This is apparently the grounds on which that actor who portrayed the Lone Ranger couldn't appear in public as "The Lone Ranger". Use of name isn't sufficient grounds for violation of copyright, however, it significantly contributes to "substantial similarity." If their works fall under "character" copyright, then referring to several AD&D game mechanics does extremely strongly improve their position that you are referring to a "similar (or same) character" as in their books. (i.e. Tensor, or Nystul, or others who wrote spells.) You definitely can't use a published character from their worlds, although I'm not sure about something named for that character (like a magic item, place, or spell.) From reading the section on derivative works, they are full of it. Derivative works refer purely to adaptations and translations. Things like movie scripts from novels, etc. TSR has stretched the concept of 'derivative copyright' to the point of absurdity, claiming that even the use of such words as ARMOR CLASS or HIT POINTS violate their copyright. Not only are these not significant enough to be considered breaches, but their entire argument is a fallacy, based as it is around the idea that the rule books and campaign guides are novels. They are not. They are 'works of utility' as recognized by the courts as early as 1878. I have reprinted a quote from some legal research someone else did for your edification below: Baker v. Selden, (this is the accounting form someone mentioned earlier.) [may be stated as follows:] where the use of the "art", i.e. the idea, which a copyrighted work explains (or embodies) necessarily requires a copying of the work itself, then such copying will not constitute an infringement of copyright. However, if such copying occurs not in using the art, but rather in explaining it, then such copying will constitute an infringement. However, this may have been refuted with Berne. Blank forms are not copyrightable. As such, I don't believe that TSR can prohibit distribution of blank character sheets, no matter what they would like. Hmm, another good defense; TSR has claimed that distribution of generic modules that "say the same thing" is legal, but that ones that use their game mechanics aren't. Use "Hits To Kill", not "HP". In Crume v. Pacific Mut. Ins. Co, one court said: "To hold that an idea, plan, method or art described in a copyright is open to the public, but that it can be used only by the employment of different words and phrases which mean the same thing, borders on the preposterous. It is to exalt that accomplishment of a result by indirect means which could not be done directly." Seems to me that, while TSR can claim certain character protections for their novels, they could lose out on the campaign materials due to their being 'works of utility'. An interesting question is whether the usage of their own novel characters in their rule-books puts them into this lesser area of protection.... ANOTHER interesting question is if they advertise their novels as role-play supplements ("The Avatar Trilogy: A real aide to your campaign" or whatever). If they do, then they may be selling THOSE as 'works of utility' as well....

I think the big question all along has been "What constitutes a derivative work?" This is always the question. One lawyer told me that it states somewhere that your work must deviate by 10% to not be considered derivative. He said that in practice however people have won suits with much greater deviation and it was a very very gray area. It basically always came down to the whim of the court. Does writing an adventure and just including stats at the end that could be used with a game, constitute a derivative work? Do you have the legal funds or disposable income to find out? TSR has drawn a line in the sand that would cost a small fortune to find out if it's real. The fact that it would cost someone to find out how real it is, makes the line quite real to most everyone. They could arbitrarily draw these lines anywhere and it would be just too d*mn expensive to cross them for most of us. That's modern law, that's ancient law, money talks. Thing is SJ games, Whitewolf games and WotC have left us quite a bit of their beach to walk on while TSR is putting up "No Trespassing" signs.

Copyright law is designed to protect specific works of authorship cast in a fixed form. Books. Artwork. Designs. It does _not_ apply to generalized systems or operations. For instance, the PHB is copyrightable, but the process of conducting combat is not. If you were to completely rewrite the PHB, describing the same game system, you would _not_ be infringing on TSR's copyright. A good example of this distinction is the "Anti-Monopoly" game. It plays exactly the same way as "Monopoly"... but with a different board layout, different graphics on the cards, different wording of the rules, etc. For further clarification, let me quote the copyright statute: "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 a work." And now, a quote from "Patents, Copyrights, and Trademarks" by Foster and Shook: "Interestingly, the courts have ruled that certain parts of a game cannot be copyrighted, including it's rules, concept, and name. However, such things as board graphics, cards, and text explaining the rules are copyrightable." It seems that people are confusing the protection of copyrights and patents. If TSR had a patent on their game system then we might be in hot water. But they do not... and they are well aware that it is too late to file for one now.

UK copyright law will not allow you to produce a version of Krynn with the spellings of names slightly changed - this is called 'passing off' and would be sat on. My experience of UK copyright is based on working as a journalist, not a novelist or game designer, but I am sure that TSR would find it impossible to claim 'Armour Class' 'Hit Points' and similar short phrases, even if they retrospectively tried to trademark them. The situation in the US is probably different in one important respect to that in Europe, which is nothing to do with laws but everything to do with social mores. Basically, we call lawyers 'lawyers', but we don't use them with anything like the frequency you guys seem to. A game company suing its own customers for infringing copyright by suggesting new ways of playing it to other customers is going to look very stupid in the press - they'd probably make it to the national press if they tried hard enough Awards are liable to be much smaller, and if TSR wanted to sue a private individual such as myself for creating a fantasy world as a setting for their game and giving out information about it, the negative publicity would far outweigh any small benefit they might obtain. It might be a different matter if I were publishing material for profit. Incidentally, if TSR really want to look like idiots in the UK, they might care to have a go at Terry Pratchett, best-selling author of the Discworld series. Terry's on record (I should know, I did the interview) as saying that Discworld started as an AD&D campaign he played with his friends, and then decided to work into a series of novels. There are plenty of elements in the novels deriving from his campaign, which in turn TSR would claim as a derivative work.