Friday, June 19, 2015

An OGL Primer

There was a bit of a discussion over on Tenkar's Tavern about copyrights, licenses, and trademarks. While it is always good to get a lawyer's advice, the Open Game License, (along with Creative Commons and other open license) are designed so that it is easy for people to see what is permissible to reuse WITHOUT shelling out $$$ for legal advice.

In general you are not allowed to use another person's work verbatim without permission due to copyright. In many cases you are not allowed to create derivative works either like say the New Adventures of Harry Potter.

The OGL is a type of blanket permission by the author to copy a work or portions of a work under certain conditions. The various Creative Common licenses have a similar goal.

Those conditions are:
  1. You must update Section 15 with the copyright notice of any open content you copy. Luckily this mostly involves copying pasting the section 15 from the license text of the work.
  2. You explicitly agree not to copy the work's product identify without a specific set of permission from the original author.
  3. You must clearly designate or mark which portions of your work is open content.
  4. You can't cite compatibility or use the original work for marketing without specific permission from the original author.
And that is pretty much it.

#4 is the only right that you are explicitly giving up by agree to use another author's open content. #4 is why Wizards had the d20 trademark license. Note: Wizards has since revoked the license and no longer gives permission to use the d20 mark or logo.

The OGL has a feature where you can designate some portions of a work as open with people free to copy that portion under the OGL, and other portions as product identity which can't be copy. This is why many opt to use the OGL over other types of license such as Creative Commons. Creative Common is designed to give permission to ENTIRE works. The OGL is deliberately designed to allow certain SECTIONS to have different permissions.

Now where it gets difficult is that people being people don't clearly mark what open content. Luckily there are documents that are marked as 100% open content that cover what most people want to do with their projects.

D20 SRD
Pathfinder SRD
The Fate SRD
Swords & Wizardry SRD
The Blackmarsh Setting (which I wrote)

If you want to publish your own product. Take your rulebooks put them far away from where you do your writing.

Download one of the above (or one of the otherSRDs out there). And use that as your main reference.

Then when you lay out your book, CLEARLY mark which portions are open content. The rest is product identity in which you retain full rights.

What is open content? Any thing that is copied or based on the SRD.

For example this entry about the Boglings from my Majestic Wilderlands.

This has to be open content because it depends on information found in the Swords & Wizardry SRD and the d20 SRD.

BOGLINGSArmor Class: 6 [13]
Hit Dice: 2+1
Attacks: 2 claws (1d3)
Saving Throw: 16
Special: Underwater, Jumping, Extensible Tongue
Move: 6/12 (when swimming)
Challenge Level/XP: 2/35
May breathe underwater indefinitely
Can Jump over 60 feet and up to 20 feet in height.
Has an extensible tongue can immobilize a target if it fails it’s saving throw.

This part can be product identity because it is my own original writing.
These are amphibious humanoids with bulbous eyes. Boglings are noted for their ability to jump long distances and for their extensible tongues. They are found in tribes in tropical swamps and rainforests as well as on several of the outer planes most notably the Swamps of Acheron home to the god Set.

Personally I made the whole thing open content just because I wanted too.

When you are done, copy the text of the open game license and alter Section 15 to be
Open Game License v 1.0a Copyright 2000, Wizards of the Coast, Inc.
plus whatever the section 15 the SRD has and then YOUR copyright notice. Like this from Blackmarsh
15. COPYRIGHT NOTICE
Open Game License v 1.0a Copyright 2000, Wizards of the Coast, Inc.
System Reference Document Copyright 2000-2003, Wizards of the Coast, Inc.; Authors Jonathan Tweet, Monte Cook, Skip Williams, Rich Baker, Andy Collins, David Noonan, Rich Redman, Bruce R. Cordell, John D. Rateliff, Thomas Reid, James Wyatt, based on original material by E. Gary Gygax and Dave Arneson.
Blackmarsh, Copyright 2011, Robert Conley
A comment about Trademarks.

Note that if any of the following is an issue for something you are doing this the point where you need to start getting legal advice. The above is about making thing clear and easy for people to reuse other people's work without having to get lawyers involved. The below is where a lawyer comes in handy.

Trademarks are graphics and text that identify a product or business. Like copyrights they can be registered or unregistered. The White Star Logo and trademark license that the debate over on Tenkar was centered are unregistered.

Understand the law frowns on businesses pretending to be other business or trying to confuse consumers whether product is really brand X. So registered or unregistered the law protect a business right to have a distinctive mark and name for themselves and their products. What does registering a trademark get you? Namely the right to use for damages when your trademark. The best you can do with a unregistered trademark is sue to get somebody to STOP from infringing your mark.

In both cases you have to actively enforce your trademarks. The law grants powerful protection to a business' trademark but only if the business actively goes after violators. Let it slide and the law will assume you don't care and hence the violation.

This is unlike copyright where inaction can only effect your ability to recover PAST damages. Once you decide enough is enough, from that point on the clock is ticking for damages by the violator. This is of course you have registered your copyright as the best you can do with an unregistered copyright it to get them to stop distributing your stuff.

Finally do you need to deal with the OGL? No there are ways under copyright law and precedent for third parties to create compatible works. But guess what! You should go to a lawyer for advice if that the route you take. And understand if that the route you take, you will need legal advice at every step to ensure your work doesn't stray across the line and cause you legal headache. In my opinion it sounds like a huge in the pass for what is in essence a hobby pastime.

Of course some people are just dicks and rely on the fact they have little or no money or assets. Or the fact that criminal copyright has a high minimum threshold before the US Attorney will consider a prosecution. Authors dealing with such assholes have my sympathy the only thing I can offer in the way of advice is for you or your lawyer to look at the DMCA as it has provisions that help smaller publisher deal with these jerks.

19 comments:

Joshua said...

IANAL, but that last bit isn't quite true. You have to register your copyright (prior to the infringement) in order to recover statutory damages and lawyers fees. Actual damages can always be recovered. At least according to http://copyright.gov/circs/circ01.pdf

Of course demonstrating actual damages from infringement can be difficult, particularly if they just copied part of your work and incorporated it into their own (as opposed to, say, selling bootleg copies of your work).

Guy Fullerton said...

IMPORTANT: #4 is not the only right you are giving up. And this is exactly why your implication that you don't need to bother consulting a lawyer, regarding OGL-based publishing, is bad advice.

Guy Fullerton said...

IMPORTANT: The other reason your implication is bad advice is because it ignores the other end of the publishing situation. Regardless of whether you access stuff via the OGL or not, you may still be subject of a copyright infringement situation. You can be subject even for unintentional or inadvertent violations that you make, such as in the content that you thought was totally original but doesn't turn out to be. If an author doesn't know what the consequences might be for that, they would be well served by speaking with an attorney before publishing, REGARDLESS of whether they rely on the OGL, or nominative use, or a separate license, or something else entirely!

Rob Conley said...

Guy Fullerton on #4 don't be coy spell out what other rights you are losing rather than spreading fear and uncertainty.

Guy Fullerton said...

That's the rub: It's hard to spell them out, because some of them are open-ended. People would be foolish to think any list could be exhaustive. One example is attribution (relevant in James Spahn's case four months ago): By making your content Open, you lose control over attribution; you sacrifice all power to require specific attribution beyond the section 15 attribution the OGL requires. You also sacrifice power to limit the amount of change made. Or tastefulness. Or whatever. There are lots of desires a publisher might have about how their work might be used, even if they want others to build on it; the OGL allows others to ignore all those other considerations. (That's specifically why various publishers license out _other_ IP, usually trademarks, with strings attached that allow the publisher some measure of control over the things they want to control.)

On a more concrete level, by using other OGL content, a publisher sacrifices the full breadth of options for repairing breaches. If the owner of the used content makes a demand, you must comply in a very specific way; you are not free to exercise the usual challenges.

Rob Conley said...

As for your second comment, the point of open license is to remove uncertainty. It is a formal way of saying "Yeah it is OK to copy X under Y conditions". The problem that result as from people using things they do NOT have permission for. Sometimes this result from the original author not marking open content clearly and sometimes this results from the new author not paying attention to what he is using.

But it is not complicated and we are in the 15th year of widespread use of open content. Dozens of individuals have successfully fulfilled the terms of the various licenses and are able to resuse open content. All without needing a lawyer to approve every i we dot and every t we cross.

I have nothing against using lawyers in this case you are rehash old arguments that have been proven false. What has been proven if that if you are careless and don't do your homework it will bite you in the ass. Which is why I strongly advise just put away the printed books and use the SRDs as your only reference especially if starting out.

Guy Fullerton said...

Proven false? Huh?

Rob Conley said...

@Guy Fullerton, yes you lose control over what further uses or changes your material is put too. That the whole point of open content that it is free for anybody to use for any legal purpose.

If that something you are not comfortable for your material then don't open it. It is that simple.

And it not like you are not getting something in return either. For some it means getting to play in the Dungeons & Dragons. For others, like for my Blackmarsh, it is a better way to get the material out into everybody hands. It not a universal panacea for all ills like some advocates will state. It is a tool. My post is to help people to use that tool for their own purpose whatever it may be.


Guy Fullerton said...

I think you miss my point. I _like_ that the OGL exists. I have made a small amount of content available via the OGL. I have helped others make content available via the OGL; specifically regarding the mechanics of the OGL itself. (Full disclosure: But most of my published RPG content does not rely on the OGL.)

My point here is about _bad advice_, not the OGL specifically. Your implication that publishing via the OGL obviates the need for legal consultation (at least compared to other licensing situations) is bad advice.

Experience can help obviate the need for legal consultation, and there _is_ a good bit of shared experience to rely on (for OGL or otherwise).

But misinformation (like your assertion about #4) only erodes the shared pool of experience.

Follow Me And Die said...

FYI - Your Blackmarsh SRD zip file link gives a does not exist (404) error...

The requested URL /downloa...kmarsh_srd.zip was not found on this server.

Jerry said...

#2 is also a right you’re giving up: product identity is specifically those things that are not restricted by IP law but that the original author wants restricted; things like some monster names, some place names in the SRD, for example (actually, despite listing a handful of monster and place names, it also includes “proper names” and “places” generically as product identity).

Under normal circumstances, names cannot be copyrighted, and trademarking only restricts their use insofar as implying an official connection for marketing purposes.

Rob Conley said...

@Follow Me and Die, fixed the link.

Chris C. said...

Very interesting -- a nice informative post for the uninitiated like me. :)

S'mon said...

"What does registering a trademark get you? Namely the right to use for damages when your trademark. The best you can do with a unregistered trademark is sue to get somebody to STOP from infringing your mark."

I'm not an expert on US state laws on registered marks, but I am an expert on the English law equivalent and that seems pretty unlikely to me. In the equivalent English law a misuse of unregistered marks certainly can get damages in the law of Passing Off, and I'd be amazed if damages were never available in US law. Perhaps you can't get statutory or punitive damages, only damages for provable loss? In the UK you can generally not get punitive damages anyway.

S'mon said...

I meant US state laws on *unregistered* marks, of course.

Brett Slocum said...

If one is basing their work off another OGL work, do you copy the entire Section 15 of that work? Or just the copyright of that work?

Guy Fullerton said...

(All the rules for how to use the OGL are in the OGl.) From Section 6: "You must update the COPYRIGHT NOTICE portion of this License to include the exact text of the COPYRIGHT NOTICE of any Open Game Content You are copying..."
And since the Copyright Notice is Section 15, that means you need all of it.

Brett Slocum said...

If one is basing their work off another OGL work, do you copy the entire Section 15 of that work? Or just the copyright of that work?

Rob Conley said...

@Brett Slocum

You copy their section 15 however they have it.