Sunday 27 October 2019

Compatible with Dungeons & Dragons

This blog post is compatible with Dungeons & Dragons™ fifth edition. :)

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I'm now in the world of feeling my way through creating various system-specific versions of the Trilemma bestiary, en route to publishing them.

My thought at this point is that there is a lot of murky thinking about what you can and can't publish, and this murkiness is a) deliberately created, and b) mostly helps the big players, like WOTC.

I'm not a lawyer, but this is what I've been able to piece together.

1. Large IP holders want you to believe that their official programs are the only way to produce compatible products

If you want to make a D&D-compatible product, prevailing wisdom is that you have two choices: use the OGL, or use the DMs Guild. (Why is there no apostrophe in that?)

I can understand why the WOTCs of the world would want you to think this. People have a very hazy grasp on copyright law and trademark law, and if they just used their intuition all sorts of IP violations would occur. There's a very common idea, for example, that derivative works are fine to create and publish if you're not making money on them. (They're not.)

Official programs are a way of being really clear about what the IP holder is willing to allow people to do.

2. Licensing agreements describe an exchange

Licensing agreements give you something in exchange for something. For example, if you look at Paizo's compatibility license, it describes an exchange between you and Paizo:

  • You can use Paizo's trademarked "Pathfinder compatible" logo, and the associated font in your products
  • Paizo gets your agreement that you'll only make 2e-compatible stuff, they get a copy of compatible products from you, and you agree not to refer to page numbers in their books.
Both of these things are new rights that each party didn't have previously. You didn't previously have permission to use Pathfinder's trademarked logo, and (of course) Paizo can't prevent random people from referring to Paizo page numbers.

Briefly, I've noticed a few things are common in licensing agreements:

  • You're given permission to use copyrighted text (as in the OGL)
  • You're given permission to use trademark logos
  • You're given permission to use trade dress, fonts, or stylings
The D&D 5e SRD, for example, is licensed under the OGL (which grants permission to use copyrighted text) because they expect people to take chunks of that text and use it their publications. It gives the new right to republish copyrighted material.

3. Creating a licensing program doesn't remove any rights that you already had

This seems like a straight forward idea, but it's worth dwelling on.

Let's say WOTC created a new program called the Reviewing Wizards program. By agreeing to their license, you're allowed to call yourself a Review Wizard™ and use a special little -(RW)- logo when you do so, and in return you agree never to publish a negative review of a WOTC product. Fine.

Is this the only circumstances that you're allowed to publish reviews of WOTC products? No, of course not! WOTC creating this program doesn't suddenly give them control over all negative reviews. It only applies to participants in the Reviewing Wizards program.

If I'm publishing negative reviews of WOTC products, I can't use the Review Wizard™ trademark, because I didn't license it, but if I don't join that program and take the new rights it grants me, I don't have to abide by its restrictions. I can still do what I could do before.

So.. what can I do without permission?

4. Fair use of trademarks

Before I get into that, there's a difference between compatibility and statements about compatibility:

  • A book with 5e stats in it is (in a lay sense) compatible (usable) with 5e.
  • A book that says it's "compatible with Dungeons & Dragons™" on the cover is using a WOTC trademark to describe itself.

These are independent things. Okay, back to trademarks.

The International Trademark Association's page on the fair use of trademarks is fascinating, because you can actually do quite a lot more than you might expect. The examples are useful, because there's a whole bunch of, "Oh yeah.." recognition moments. Think of:

  • Third-party replacement blades for Gillette™ razors
  • Repair shops that advertise being able to fix BMW™ cars
  • Third-party sellers of iPhone™ 6 phone cases or chargers
  • Unofficial guides to AAA video games
All of these are services or products that are compatible, but which also use another company's trademarked terms to describe themselves.

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Why does all this matter? Frankly, because some of the popular licensing programs out there are batshit insane. So now, let me put on my Review Wizard™ hat and review some licensing programs.

Legal Lunacy: OBS Community Programs

The DMs Guild (why is there no apostrophe?) was the template for a number of OBS (DriveThruRPG) community content programs, and to use them, you give up some remarkable things:
  • You can never publish the work anywhere else—not in print, not via Kickstarter, not on, not on your blog, not anywhere. If they delist your product or the whole community content program shuts down, your content is then simply unpublishable.
  • You can't publish works derived from it anywhere else, either.
  • The publisher gets a permanent, irrevocable right to republish your work, including creating and selling derivative works. They can translate it, slice and dice it and put it in compilations, without paying you a dime or even telling you.
  • OBS can sign legal documents on your behalf, operating as your 'attorney-in-fact' if they need new contracts to clarify or affirm their rights, as they see them.
That last one is so mind-bendingly overreaching that it's comical. You're giving them permission to negotiate for you, with themselves. It's like the devil wrote it.

As far as I can tell, the only reason to use this is if you're so smitten by the D&D brand that you want to rub that cachet on yourself, and/or blow hundreds of hours of hard work on a desperate notice me sempai play.

If you're going to market the hell out of your product (or cash in on your good name), then it makes a kind of sense: the median DMs Guild product makes 10% more revenue than the median DriveThruRPG product (sales are higher, but the WOTC clawback is almost aggressive enough to make up for it), but at the cost of giving away all rights that matter.

Alternately, if you have no marketing impulse whatsoever all and 50 sales sounds good to you, then these programs makes a kind of sense because at least you can play with WOTC IP while you're doing it.

For non-WOTC publishers who are too small to boost your sales or give you much IP to play with, I can't fathom why you'd touch an OBS community content program. This is the infectious green slime of licensing programs.


This is a funny one. As far as I can tell, the only reason you need to use the OGL is to republish OGC content. If your content is all new, there's no need to use the OGL whatsoever—in fact, you're explicitly giving up some fair use rights unnecessarily, since the OGL prohibits you from using Product Identity trademarks to declare compatibility.

In other words, if you reuse 5e SRD to make a 5E-compatible product, you're explicitly giving up the right to say it's D&D compatible.

If you're not actually republishing someone's OGC material, using the OGL looks like you've given up some rights for nothing.

Pathfinder Compatibility

In contrast, this actually looks pretty reasonable. You're forced to use the Paizo OGL, but the compatibility license gets rid of OGL's major restriction on the fair use of trademarks for compatibility statements, by letting you use their Paizo Compatible™ logo.

Also, it should be worth mentioning that Paizo doesn't take a cut. They haven't created a garden prison like WOTC, they just want to make sure that people are writing for the latest edition of Pathfinder.

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D&D™ Compatible
In conclusion, contrary to popular wisdom, D&D™-compatible products which say, Compatible with D&D™ on the cover seem to be completely legal. As long as:
  • You're not using any WOTC-copyrighted content that would require you to use the OGL
  • You use the trade marks in a minimal way (e.g. no giant logo reuse, just naming them)
  • No brand confusion is created, and no business relationship or endorsement is implied

Pay To Win

The sad fact is that, despite all this, having a heavyweight legal team lets you send scary-sounding cease-and-desist letters, and fighting them is too stressful and expensive for little publishers. Most (all?) of the fair use of trademarks examples I cited above were established by litigation, which is horrendously expensive.

One depressing but useful benefit of participating in an official license scheme is as a declaration of what the publisher won't try to bully you for doing.


      1. Thank you for laying this out. It's really useful to have this stuff explained in one place.

        1. Hopefully some of it's correct!

        2. It all looked correct to me - I couldn't see any errors, and I teach this stuff in England, so EU based laws. The US law is pretty similar, with a few differences around eg fair use in copyright, and perhaps the US courts have tended to adopt a somewhat broader interpretation of commercial use of TMs (but the CJEU in Arsenal v Reed took a pretty US-style approach to that). But nothing you said was wrong AFAICT.

      2. The point I always struggle with is derivative works: sometimes the exact words don’t need to show up in a derivative work in order to count as derivative. And yet, if it is “inspired by” then it’s ok. So taking the Labyrinth Lord monsters and making your own monster manual, using many of the names (orcs, goblins), many of their stats (HD 1 AC 6), ... derived-from or inspired-by?

        1. That's a good point about derivative works, I don't know how broad that is. For situations where you're copying text wholesale, I assume OGL is the only way to go.

        2. Another issue, probably related: what if I start with a copy of the Labyrinth Lord monsters and the OGL and then replace the entries bit by bit: is there ever a point at which I can say, “this is all new and original?” Or is it derived from step to step and thus I still “owe” them. The edge cases are weird.

        3. Sans OGL, the most likely finding would be a non-literal copyright infringement of WoTC's copyright in Moldvay-Cook B/X D&D. There might also be infringement of Goblinoid Games' copyrights if you took a substantial amount of Dan Proctor's original work.

      3. I always felt this email interview was revealing:

      4. I am Simon, I teach IP law, and I approve of this post. :)

      5. Derivative works - as a rule of thumb, you can copy another person's ideas, but not their particular expression of those ideas. A non-literal act of copying (eg a paraphrasing) can still be copyright infringing, but this area tends to be highly uncertain and I don't see a lot of consistency in court decisions.

        I generally recommend use of the OGL where practical, primarily because of the notice & rectification clause. I would only recommend use of the D&D DM's Guild program if you want to use the licensed WoTC art, font etc - they actually licence a LOT of content in return for their (large) cut. My son bought the 'Book of Dragons' off DM's Guild and it looks a lot like an official WotC book.

        With TMs, if you are not using the OGL then nominative or descriptive use of TM, eg a clear statement of "compatible with, not authorised by" ought to be safe, and should not attract a C&D from Hasbro.

        Hasbro lawyers do know their stuff and rarely send vexatious C&Ds IME, though there have been a few marginal cases re derivative copyright works, eg plush toy rust monsters. They're not like TSR lawyers under the rule of Lorraine Williams claiming (c) over 'Armor Class'!

        1. Plush Rusty monster case can look gross, but actually it was somewhat justified, because author in fact did infringed, that was character Yuan Ti which is Product Identity, and he need to retcon her into lamia. Probably others, I don't remember. Also I believe he didn't attributed OGL but that's gray area because he didn't quoted SRD texts.

      6. Generally, it doesn't matter if you're on the right side of the law if you can't afford to defend it in court. Hasbro has very deep pockets. I'm not sure how aggressive WotC's lawyers are these days, but I wouldn't want to fight them.

        In the past, they've gone after products "compatible with D&D" outside the OGL and their specific licensing programs.

        1. Here in the UK we're better off as lawyers will often take case on a contingency fee basis, and costs are typically awarded against the loser. So if you have a strong case you can fight a big corporation for 'free'.