A) TSR is claiming that ANYTHING created with their system,
monster, character, module, etc, is a derivative work
of their rule-books and thus controlled by their Copyrights.
B) A separate issue is that TSR is also claiming the their
terminology is protected and cannot be used without their
permission by Trademark law.
For the purpose of this debate, we are going to deal with (A), and leave (B)
alone. This is because, quite frankly, my NOLO book on Trademark has not come
in yet. I personally believe (B) is also incorrect, but until I can show
evidence to support my belief, I am going to table the discussion.
According to Fishman's _The Copyright Handbook: How to protect and use written
works_, the following test applies to determining if something is a derivative
work:
[All-caps has been substituted for italics in the original]
(Chapter 7, p. 2-3, The Copyright Handbook)
"However a work is derivative for copyright purposes only if its
author has taken a SUBSTANTIAL amount of a previous work's
EXPRESSION. As discussed in detail in chapter 6, WHAT COPYRIGHT
PROTECTS, copyright only protects an author's expression: the
words she uses and the selection and arrangement of material,
if original."
...
"How much is substantial? Enough so that the average reader of the
work would conclude that it had been adapted from or based upon
the previously existing expression.
EXAMPLE 1: Edna writes a poem about her cat. She includes one
line from a poem in T.S. Eliot's cat poetry collection, OLD
POSSUM'S BOOK of PRACTICAL CATS. She probably has not used
enough of Elliot's expression for her poem to be considered
a derivative work of OLD POSSUM'S BOOK OF PRACTICAL CATS.
EXAMPLE 2: Andrew Lloyd Webber and Trevor Nunn write a musical
entitled CATS. The musical is based entirely on the poems in
OLD POSSUM'S BOOK OF PRACTICAl CATS. Here and there a word or
two are altered to make the verses fit the music better, but the
show is nothing more then Eliot's poems set to music. CATS is
a derivative work of OLD POSSUM'S BOOK OF PRACTICAL CATS. "
When drawing a conclusion as to how much of a work is derivative of the
original expression, it is worth considering that some things are in public
domain. The two kinds of information that are in the public domain, that to me
seem the most relevant to this issue are:
I) Words, names, titles slogans and short phrases.
(Chapter 6, P. 8, The Copyright Handbook)
"Individual words are always in the public domain, even if they
are invented by a particular person. Names (whether of
individuals, products, or business organizations or groups),
titles, slogans, and other short phrases (for example, "I'd
walk a mile for a Camel" and "No Smoking" are not protected
by copyright law, even if they are highly creative, novel or
distinctive, and will not be registered by the Copyright Office."
II) "The merger doctrine."
There is a further limitation on copyright when an expression
represents the only way to reasonably convey a fact or idea.
(Chapter 6, p. 7, The Copyright Handbook)
"Sometimes there is just one way, or only a few ways, to adequately
express a particular idea or fact. If the first person to write
about such an idea or fact could copyright his expression, he
would effectively have a monopoly over that idea or fact itself--
that is, no one else could write about it without his permission.
The copyright law does not permit this since it would discourage
authorship of new works, and thereby retard the progress of
knowledge. In these cases, the idea or fact and its particular
expression are deemed to merge and the expression-- the author's
words-- is either treated as if it were in the public domain or
given very limited copyright protection."
In my mind the merger doctrine is important for two reasons. First, it may
very well apply to facts like "leather is AC9". Secondly, it goes toward
showing just how far the copyright laws go to avoid allowing anyone a creative
monopoly over an area of writing. This is precisely what TSR, in my view, is
attempting to create.
Even if our monster, characters, modules, spells, etc. ARE derivative works
(and I firmly believe they are not) they are probably legitimate anyway under
the terms of fair use. According to Fishman, the following tests apply to
fair-use:
I) The purpose and character of the use.
(Chapter 11, p. 5, The Copyright Handbook)
"First the purpose and character of your intended use must be
considered in determining whether or not it is fair use. The
The test here is to see whether the subsequent work merely serves
as a substitute for the original or "instead adds something new,
with a further purpose or different character, altering the
first with new expression, meaning, or message."
(CAMPBELL V. ACUFF-ROSE MUSIC, INC.) The Supreme Court calls
such a new work transformative.
This is a very significant factor. The more transformative a
work, the less important are the other fair-use factors, such
as commercialism, that may weigh against a finding of fair use.
Why should this be? It is because the goal of copyright to
promote human knowledge is furthered by the creation of
transformative works. "Such works thus lie at the heart of
the fair use doctrine's guarantee of a breathing space within
the confines of copyright." (CAMPBELL V. ACUFF_ROSE MUSIC, INC.)"
APPLYING THE TEST: This one seems pretty clear cut. You could
not use a module, monster or character in place of the rules. In
fact, the rules are a pre-requisite to using any of these at all.
I feel pretty safe, in my non-lawyer, non-trained opinion in
stating that these works are HIGHLY transformative.
II) The Nature of the Prior Work
(Chapter 11., p. 7, The Copyright Handbook)
"As we discussed in Chapter 6, WHAT COPYRIGHT PROTECTS, to
preserve the free flow of information, less copyright protection
is given to factual works (scholarly, technical, scientific
works, etc.) then to works of fancy (novels, poems, plays, etc.)
This is particularly true where there are only a few ways to express
the facts or ideas in a factual work, and the idea or fact and
its expression are deemed to merge (see Chapter 6, Section B).
Thus, authors have more leeway in using material from factual
works then fanciful ones, especially where it is necessary to use
extensive quotations to ensure the accuracy of the factual
information conveyed."
APPLYING THE TEST: TSR would like to claim, for obvious reasons,
that their rule-books as well as campaign accessories are works of
fiction. In the case of the rule-books, I think the claim is
disproved fairly easily by comparing it with books like Hoyle's
rules for card games. Both are rules for playing a game, first
and foremost, and I don't think anyone could reasonably claim
that Hoyle is a work of fiction.
TSR themselves classify their 1st Ed. DMG and PHB as a "Special
Reference" works on their title page.
The campaign accessories are tougher to classify, I'll admit. My
feeling is that one thing that all accepted types of fiction have
in common is a story-line that is accessed linearly (you read, watch,
whatever, from beginning to end). Even so called branching stories,
such as TSR's Endless Quest books are read from a beginning to one of
many endings.
TSR's campaign settings, such as the City of Splendors set are
NOT used in this fashion. Rather they are referred to in a
random-access fashion for information. I also own a book
called The Glass Harmonica, which is basically an encyclopedia
of fantasy elements (dragons, dungeons, etc). It seems to me
that the campaign settings are more like this. Thus I would
argue that they are reference works, not works of fiction.
III) The Amount and Substantiality of the Portion Used.
(Chapter 11. p. 8, The Copyright handbook)
"The more material you take, the more likely it is that your
work will serve as a substitute for the original and adversely
effect the value of the copyright of the owner's work, making it
less likely that the use can be a fair use."
APPLYING THE TEST: Very little of the actual DMG appears in
a properly written module, monster, or character. I would go
so far as to argue NONE of it appears except for some terminology,
which is itself public domain (see above). In any case, the
% of the DMG's expression which appears in such things is minuscule.
Certainly there is NO way they could substitute for the DMG, as
Fishman explains above.
IV) The effect of the USE on the Market for, or Value of, the
prior work.
(Chapter 11, p. 9, The Copyright Handbook)
"The fourth fair use factor is the effect of the use upon the
potential market for, or value, of the copyrighted work. You
must consider not only the harm caused by your act of copying,
but whether similar copying would have a substantial adverse impact
on the potential market for the original work."
....
"Since the effect of the use on the potential market for the
prior work must be considered, the effect on the market for
derivative works based on the original must also be analyzed."
APPLYING THE TEST: This is the trickiest, and perhaps weakest,
one to argue. If we are even considering the fair use test,
then it means by definition we have already lost the case for it
note being a derivative work. If our monster, module, or
character is a derivative work, then so are TSR's. They
can argue that the overall market for such is limited and thus
the existence of our works detracts from their sales of their
own derivatives. I could see an argument that the more work
is available, the bigger the market will get, but I wouldn't
like to stake a court case on it.
Luckily, this is the last of the tests and, as we can pass the
other 3 so strongly, including the incredibly important
transformative work classification, I hope it would not be
necessary to win this point.