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Tuesday, October 25, 2011

So, Does the OGL Not Cover Images of Creatures Covered By the OGL?

Apparently, the Rust Monster is in the OGL. It is also based on some cheap ass toy that EGG found in his travels, at least in appearance.

The Cease & Desist email that was this blog's topic yesterday was apparently in response to an illustration of a Rust Monster. According to the artist, it was his own piece of work: it wasn't traced or copied - apparently not even a homage.

So, if one draws a possible conclusion from this (requiring an "assumption" - and we all know where that can lead), WotC may be staking a claim that the OGL doesn't apply to images of elements that are covered by the OGL.

I really wish I knew the OGL better, but I'm not a publisher and I've only got one small article to my credit, so I'm hardly a writer, but if the OGL doesn't allow for visual interpretation of creatures described within, there's a whole lotta art that is in violation. The thing is, I don't think any of it would be in violation of copyright - but as my knowledge of such could fill a small shot glass, I'll leave such to those with more knowledge.

I do find the timing to be very curious.
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26 comments:

  1. StuartOctober 25, 2011 at 10:36 AM

    I think every monster in the original D&D was based on some other monster from toys, comics, books or movies. I can't think of any exceptions outside of minor cosmetic differences or name changes.

    In some cases the D&D artwork was closely copied from the work of another artist (eg. "Displacer Beast") without credit.

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  2. EricOctober 25, 2011 at 10:38 AM

    That can't be it, the rust monster? Pathfinder has it in their Monster book.

    Something is going on that aint't right....

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  3. Dan of EarthOctober 25, 2011 at 10:39 AM

    I'm a little confused by what you're saying here. Forgive me if there is more to the story, I may not have caught all of it. The art in question did not use the OGL, right? So how does the OGL have anything to do with this situation? One of the trends I've noticed for a while now is that some people think that the material released with the OGL is somehow equivalent to public domain or that WotC has given up all claim to IP released in their SRDs. Let's assume that the image of the beholder and rust monster really are "owned" by WotC. Just for the sake of discussion; I'm not presenting an opinion one way or the other. In the case of the rust monster, which is fair game under the OGL, you would need to use the OGL in order to publish using it. That would presumably include visual depiction. Just because it is available with the OGL does not mean it is available outside the OGL. Similarly you wouldn't assume you can just copy/paste text from the SRD and decide not to use the OGL, right? Same thing with this line of reasoning.

    The OGL is a wonderful, wonderful tool, and the open game content released by WotC is an incredibly generous resource--but people shouldn't forget that WotC still owns it. If you want to use it, use the OGL and do it legally. Some people think things have become a free-for-all and that you don't need to use the OGL, or if you do you can feel free to use it incorrectly by not documenting the copyright section correctly or by failing to properly declare what is open content and what is product identity.

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  4. TenkarOctober 25, 2011 at 10:56 AM

    Dan, the art in question is of a "Rust Monster", which is in the OGL. If I draw my interpretatgion of a "Rust Monster", am I violating WotC's IP rights? If so, NO art based on creatures from the OGL would pass the test...

    This wasn't using WotC's art, it wasn't even a homage. It was a drawing of a Rust Monster.

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  5. Dan of EarthOctober 25, 2011 at 11:01 AM

    Tenkar, I'm still not clear what you're asking. Any material released under the OGL is ONLY usable under the OGL. If the rust monster were a very unique creation of WotC's (I'm not saying it is, just for the sake of this example) and it is made open content under the OGL, you only have access to it if you use the OGL. Releasing something with the OGL does not make it public domain.

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  6. Dan of EarthOctober 25, 2011 at 11:05 AM

    @Tenkar: if you work outside the OGL to depict creatures unique to WotC IP then you are in hazy territory. Remember how miniatures companies used to release slightly modified creatures that resembled D&D creatures? They did it to avoid the unique presentation in D&D. Similar principles here I would assume. I'm not saying WotC is in the right here. I'm just saying if you want to argue you have the right to depict something we need to be clear what the basis is.

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  7. StuartOctober 25, 2011 at 11:08 AM

    This creature is a design (c) somebody in Hong Kong circa 1970s.

    I'm not sure if taking someone else's design and adding a unique name and story gives you copyright over the combination of that image and name/story.

    If that's the case we could take monster designs from Pokemon or Muscle Things, give them a new name, and claim them as our own creations.

    I'd be very interested in hearing from a lawyer who can confirm we are able to do this - I have lots of toys around the house. :)

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  8. TenkarOctober 25, 2011 at 11:21 AM

    @Dan - I'm beginning to see your point, in that this art was part of an "art pack" the author prevously released for sale (not public domain). if he labled such image as a "Rust Monster" in the art pack, I can see a possible issue.

    However, if i am writing a product, and my writing conforms to the OGL, and I have art commissioned that includes likenesses of creatures found in the OGL, is that artwork in violation of WotC IP?

    I'm seeing a real hazy line here. Fuzzy and hairy too, with all types of shades of grey ;)

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  9. SamOctober 25, 2011 at 11:51 AM

    Rust Monsters are considered 'signature' monsters by WoTC, similar to Beholders. Signature monsters are considered valuable trademarks by the WoTC and thus you aren't free to use them in your products without separate permission from WoTC.

    I don't know if there is a list somewhere (there must be, I'm sure, I just don't know how to put my finger on it) of these monsters. But essentially, if TSR created the monster whole cloth (as opposed from lifting it from someplace else) WoTC gets touchy.

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  10. Boric GOctober 25, 2011 at 11:55 AM

    I hate to add another level to this, but here I go: if an image of an OGL creature released non-OGL is a violation, let's suppose that I create artistic photographs of my old 1970-era "bulette" and "rust monster" that I dug out of the same bag of dinosaurs. If I sell such photographs--even if I don't label them as "bulette" and "rust monster"--does this mean I'll draw the wrath of the WotC? I think they would lose that arguement in Court. But I dont' know for sure.

    I'll confess: I may be an attorney, but my last exposure to I.P. was one course more than 15 years ago. I just haven't had the time or inclination to dig through the OGL for an answer.

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  11. StuartOctober 25, 2011 at 11:56 AM

    Here's the list of Product Identity that's hands off if you sign on to the OGL (as well as their original sources):

    beholder - Atomic Submarine
    gauth - Atomic Submarine
    carrion crawler - Hong Kong Toy
    displacer beast - Couerl / Marvel Comics
    githyanki - Space Mummies
    githzerai - Space Monks
    kuo-toa - HP Lovecraft
    mind flayer - HP Lovecraft
    slaad - Demon Frog
    umber hulk - Hong Kong Toy
    yuan-ti - Snake Man

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  12. SamOctober 25, 2011 at 12:11 PM

    Boric G, it would depend on the context.

    What WoTC has is trademark status, which 'protects' them from having someone else use their marks in a way that would confuse the consumer into thinking the use was associated with WoTC. So regardless of the origin of the depiction, if you were using it in a way that they thought could be interpreted, even in passing, as such, they'd probably go after you.

    Trademarks, unlike copyrights, must be defended vigorously in order to be maintained. So it makes those who would tend to be litigious anyway, even more so. See:Disney suing people who paint murals of their characters on nursery walls, video game monoliths suing indie developers for using the word Scrolls in a developing game, and etc.

    On the other hand, in theory, if your use is completely separate from the context the mark is registered for, then as long as you aren't infringing on some other rights, it's free and clear useage.

    Essentially Trademark Infringement is the corporate version of Identity Theft, you can have the same name as someone, you just can't show up at their bank and try to use that fact to withdraw money from their accounts.

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  13. ancientvaultsOctober 25, 2011 at 2:46 PM

    He should have just filed the serials numbers off of them, problem solved.

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  14. 1d30October 25, 2011 at 3:36 PM

    As I recall, the Beholder was invented by one of the original players, to provide a sadistic challenge for his (and other) PCs. A monster with anti-magic, deadly eye-rays, high AC, high HP, is silent and so surprises easily, floats to avoid traps, and can see everywhere so you can't surprise it? Sounds better than a dragon. Plus it has worse loot.

    Anyway, here's my problem with the whole thing. Let's say my buddy the author writes a story about a monster shaped like a giant dick with an eyeball at the end. I decide to draw it (because I'm totally rude). Does he as the creator of the idea of the monster have the right to tell me I can't use my drawing?

    What if my buddy the artist makes a sculpture of a giant dick with an eyeball at the end, and I decide to write a short story about such a monster (because I'm totally rude). Does the sculptor have the right to tell me I can't use my story?

    If either is true, it's pants-on-head retarded and IP law must yield to the needs of public policy and basic sanity.

    I think it gets murky if the art piece is called "The Whotsie" and the story is called "Attack of the Killer Whotsie". It's a different issue: can I copyright a single new word or phrase? Not can I trademark it, as in an Internet radio company doing business as Pandora. I mean can I copyright the words "Rust Monster" so that nobody can publish anything with those words without my say-so?

    I could write a game where there is a monster called the Rust Monster, and it turns metal to rust and eats the rust. I think that's analogous to someone writing a story about Superman. If I want to use that intellectual property, I need to get permission from the IP holder.

    But we're crossing a boundary where my drawing of your IP becomes illegal. What if I decide to take a photo of a McDonald's joint and I catch the logo in the image? Does McDonald Corp have control over that image? At what point must the interests of business subside beneath the interests of art and expression? And if an artist can't distribute his work is it any different from putting your hand over his lens or restricting the sale of cameras?

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  15. ADD GrognardOctober 25, 2011 at 4:17 PM

    From the OGL:

    The following items are designated Product Identity, as defined in Section 1(e) of the Open Game License Version 1.0a, and are subject to the conditions set forth in Section 7 of the OGL, and are not Open Content: Dungeons & Dragons, D&D, Dungeon Master, Monster Manual, d20 System, Wizards of the Coast, d20 (when used as a trademark), Forgotten Realms, Faerûn, character names (including those used in the names of spells or items), places, Red Wizard of Thay, Heroic Domains of Ysgard, Ever-Changing Chaos of Limbo, Windswept Depths of Pandemonium, Infinite Layers of the Abyss, Tarterian Depths of Carceri, Gray Waste of Hades, Bleak Eternity of Gehenna, Nine Hells of Baator, Infernal Battlefield of Acheron, Clockwork Nirvana of Mechanus, Peaceable Kingdoms of Arcadia, Seven Mounting Heavens of Celestia, Twin Paradises of Bytopia, Blessed Fields of Elysium, Wilderness of the Beastlands, Olympian Glades of Arborea, Concordant Domain of the Outlands, Sigil, Lady of Pain, Book of Exalted Deeds, Book of Vile Darkness, beholder, gauth, carrion crawler, tanar'ri, baatezu, displacer beast, githyanki, githzerai, mind flayer, illithid, umber hulk, yuan-ti.

    Section 1(e):

    (e) "Product Identity" means product and product line names, logos and identifying marks including trade dress; artifacts; creatures characters; stories, storylines, plots, thematic elements, dialogue, incidents, language, artwork, symbols, designs, depictions, likenesses, formats, poses, concepts, themes and graphic, photographic and other visual or audio representations; names and descriptions of characters, spells, enchantments, personalities, teams, personas, likenesses and special abilities; places, locations, environments, creatures, equipment, magical or supernatural abilities or effects, logos, symbols, or graphic designs; and any other trademark or registered trademark clearly identified as Product identity by the owner of the Product Identity, and which specifically excludes the Open Game Content.

    Section 7:

    7. Use of Product Identity: You agree not to Use any Product Identity, including as an indication as to compatibility, except as expressly licensed in another, independent Agreement with the owner of each element of that Product Identity. You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such Trademark or Registered Trademark. The use of any Product Identity in Open Game Content does not constitute a challenge to the ownership of that Product Identity. The owner of any Product Identity used in Open Game Content shall retain all rights, title and interest in and to that Product Identity.

    NOTE: They are picky as all hell over any image that vaguely resembles anything they have ever done including all of the items listed above.

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  16. StuartOctober 25, 2011 at 4:37 PM

    The problem with this legal boilerplate is that there's really no way to tell the difference between a drawing or miniature based on a "Yuan-Ti" (for example) and one based on an RE Howard Snake Man, since the Yuan-Ti is a derivative work of something in the public domain.

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  17. ADD GrognardOctober 25, 2011 at 4:52 PM

    And that is the gray area.

    I tend to use public domain images that are old and are not presented in a gaming context. I guess if they want me after that they can have me but I document all material as to its license and source as evidence if ever needed.

    I also go light on artwork that is specific. I stay more with generic images.

    And I really feel they put that clause in the way they did in such detail to cover their own ass in case a 3p image showed up in an OGC product without the owners permission. Most text work has been done as 'work for hire' in the old days but the art reverted back to the artist after publication. I think that may be the reason for pulling the pdfs of older material as well, not the piracy issue, seeing as how it hasn't slowed those fools down at all.

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  18. ancientvaultsOctober 25, 2011 at 6:15 PM

    I think that Stuart really hit it with the yuan-ti analogy. If WotC really thinks that they can chase everybody down that uses an image that they see as theirs they are fighting a losing battle, one that can easily turn back on them. They are a lot like Games Workshop; not that original, but with a lot of money, a bad combination.

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  19. ADD GrognardOctober 25, 2011 at 7:19 PM

    I just wanted to say that I'm not mad or hatin' on anybody here...not even you Stuart :)

    I just think we need to do our due diligence so that this crazy community can continue. At the end of the day, when the gloves come off, we are all brothers and sisters here who have a passion for gaming.

    With that said, this c&d is a perfect example of what can happen.

    They haven't made many smart moves at WotC in sometime and the real violators are still out there operating. I mean VIOLATORS who claim they don't understand all that 'legal jibberty jabber'. I mean guys who are using trademark and logo right on their sites, using OGC and releasing it under CC, making their own versions of 4e and slapping their name on it along with the OGL at the end, material that is covered by the GSL, image violations, sites that look like a Wizards page. It has gotten way out of hand. And just like this idiot the other day, cutting and pasting copyrighted material and slapping the OGL at the end...ugh...

    I'm not talking clever I'm talking down right damn dumb. "I'm not selling anything so it's ok" excuses, not understanding that putting something up on the internet means you have published it to the public and it falls under the same jurisdiction as any other media at that point.

    As Stuart M. said earlier this is bad for business and many of us are publishers of one variety or another. We just don't need any surprises right now.

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  20. SamOctober 25, 2011 at 7:27 PM

    Except, in fact, he hasn't really.

    There are two separate things that are being confused here.

    Copyrights and Trademarks.

    Copyrights are what Stuart is arguing about. And if it were an issue of copyright, he'd be right.

    When you create a work, you obtain a copyright on it.

    Outside an extremely small set of exceptions, NO ONE is permitted to distribute copies of your work or even derivatives of your work without a license from you. However unless you are Disney, after a period of time these rights expire and you no longer have the right to restrict people from making copies or derivatives of your work.

    The OGL is not talking about Copyrights though. Not in the section we are concerned with.

    The biggest problem WoTC had in Dungeons and Dragons is that is actually NOT possible to copyright rules to a game. So for the most part, the OGL does not deal with copyrights. It deals with Trademarks.

    Trademarks are, as a Munchikin once said, a horse of an entirely different color.

    Trademarks are the corporate version of identity. They are what made the Go-Bots not the Transformers, what makes Burger King not McDonalds, and why you can't open up a fast food joint on Main Street with a name of MacDonalds and a logo consisting of a Gold M.

    And with Trademarks it doesn't matter where the source material came from or what it was based on. What matters is who has registered that mark. Whether they are using it actively. Whether they are protecting it and not allowing non-affiliated usage pollute it's meaning. And ultimately it matters what context it was being used in.

    Reread my response to Boric G.

    If someone started drawing or modeling ANYONE'S trademark, the question wouldn't be "was this inspired by our art or the public domain works of someone else", it'd be "is your work at all connected to any of the areas of business we use this particular mark in".

    If the answer is yes, then they have the right and the obligation (if they want to keep the mark) to stop or force you to license usage of the mark from them.

    Again, trademarks aren't copyright. They don't work on who created what when. They work on who owns that 'identity' in that sector of business.

    As far as the specific example Stuart used, the answer would boil down to what use the drawings or miniatures were being put to. If they were being used for gaming purposes (i.e. art for game books) then WoTC would be well within their rights to go after you.

    On the other hand, if the drawing was intended to be used as a part of an art gallery exploring the concept of Anthropomorphism, or as part of an art book celebrating snakes, then a judge would probably tell WoTC (if they were to come knocking) to go fly a kite. No one could reasonably mistake those uses as being tied to WoTC, Dungeons and Dragons, or gaming in general.

    I'm not defending them, to be honest I'm probably least of WoTC's fans in the world, and I would certainly agree if someone wanted to make the argument that they've registered a huge swath of things as their own trademarks they really shouldn't have marks on purely because they were trying to kill D&D clones.

    But it's important if you are going to get your dander up over something to do so literately.

    This isn't an issue over who owns the concept of 'Snake Men' it's an issue over who owns the right to use 'Yuan-Ti' as a thing in the gaming sector.

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  21. StuartOctober 25, 2011 at 7:44 PM

    You can search for registered Trademarks (R) here and while Neverwinter and Dungeons & Dragons are registered marks, Yuan-Ti is not. You can take legal action against infringement of an unregistered Trademark (TM) but our lawyers have advised me it's much more difficult.

    As far as the specific example Stuart used, the answer would boil down to what use the drawings or miniatures were being put to. If they were being used for gaming purposes (i.e. art for game books) then WoTC would be well within their rights to go after you.

    This is absolutely not true.

    Here are some more Snake Men from Games Workshop to further drive home the point. ;-)

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  22. SamOctober 25, 2011 at 8:05 PM

    And you notice what their name isn't? Yuan-Ti.

    You notice what my last paragraph was saying and what it wasn't saying?

    Your example specifically invoked Yuan-Ti as what was being created. The assumption being they were being identified as such, not as generic snake men.

    And yes, on their own unregistered trade marks have fewer (not no) protections than a registered trademark.

    However, by identifying Yuan-Ti as part of what WoTC considers their product identity for Dungeons and Dragons, the position is a bit more stronger than you let on.

    You aren't infringing on "Yuan-Ti" you are infringing on part of what WoTC has identified as a distinct and unique part of the "Dungeons and Dragons" trademark.

    Either way, I guarantee you if you start selling "The Complete Yuan-Ti Guidebook", you'll get a nice letter in your inbox soon.

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  23. ADD GrognardOctober 25, 2011 at 8:05 PM

    It is true under U.S. law:

    The Trademark Dilution Revision Act of 2006 (H.R. 683) was a law passed in the United States covering trademark law, and specifically dealt with trademark dilution.

    The act amended the Trademark Act of 1946 and the later Federal Trademark Dilution Act, and was passed through the United States House of Representatives on April 19, followed by the Senate (who amended it) on March 8. It was signed into law by the then-President George W. Bush on October 6, 2006. It was primarily designed to overturn the U.S. Supreme Court decision in Moseley v. V Secret Catalogue, Inc., which had specified a need to show actual trademark dilution, rather than the likelihood of dilution. It also amended US law in this area in a few other ways. It limited protection from trademark dilution to those recognised by a member of the general public, rather than one in a niche market, for example an area relevant to either or both products. It also slightly amended defense on the grounds of fair use.

    Trademark dilution occurs when a use of a trademark by someone other than its owner impairs the mark's distinctiveness, whether or not the mark is used on a competing product or in a way that is likely to cause customer confusion.

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  24. StuartOctober 25, 2011 at 8:19 PM

    @Sam: I'd originally said:

    there's really no way to tell the difference between a drawing or miniature based on a "Yuan-Ti" (for example) and one based on an RE Howard Snake Man

    Certainly if you use the words "Yuan-Ti" you're doing something different (and dumb).

    However the the point is that these names are non-generic titles for generic looking monsters. Or not so generic ones that are public domain. Kuo-Toa is a Deep One with the serial numbers filed off. I'm not sure in what way you could tell the difference between an artist's reimagining of these monsters and the non-copyrighted generic versions of them.

    If I draw a scary frog man with teeth and claws is that a slaad? Is that a Frogonaut from Altair IV? Unless I put a title on it or include it in a game book it's just a drawing of a scary frog man with teeth and claws...

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  25. SamOctober 25, 2011 at 8:41 PM

    Certainly, if you 'file the serial numbers off' you are far more protected than if you are blatant about it.

    After all the thing being identified as 'protected' by WoTC is Yuan-Ti, not 'the image of a half man/half snake'.

    And certainly, there is a vast world of instances of people skirting the edges of that particular issue.

    But you are still rolling the dice.

    The questions are always going to be "does a judge think that someone taken off the street could reasonably mistake YOUR stuff as being associated with MY stuff?" and the closer you skirt the edges the more likely you are to get hammered.

    Yuan-Ti are snake men, snake men aren't unique concepts. There probably have been representations or stories about 'snake men' since pre-history.

    Rust Monsters aren't that way. Beholders aren't that way. Even if the VISUAL part of their design was lifted from some other product, the total package, the concept, is something that is unique to Dungeons and Dragons.

    You are going to have a much harder time finding wiggle room with them.

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  26. Bobby JassosDecember 11, 2015 at 12:58 AM

    Trademark is significant from the point of view of the layman as, it is very important that brands remain protected or else anyone will come up in the market and start his own product in the name of reputed brand and confuse the consumer. Find your trademark symbol or trade name by registered trademark symbol.

    ReplyDelete

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