First, the copyright law that I am referencing here. The link will have it in its entirety:
http://www.copyright.gov/fls/fl108.html
The idea for a game is not protected by copyright. The same is true of the name or title given to the game and of the method or methods for playing it.
Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form. Copyright protection does not extend to any idea, system, method, device, or trademark material involved in the development, merchandising, or playing of a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles.
Some material prepared in connection with a game may be subject to copyright if it contains a sufficient amount of literary or pictorial expression. For example, the text matter describing the rules of the game, or the pictorial matter appearing on the gameboard or container, may be registrable.
Okay. Recently, a local store I shop at had a game called Serpantes y Esscalades (sp?) that was described in Spanish. It looked remarkably similar to Chutes & Ladders, a game I played often as a kid, but I saw no mention of Hasbro. This appears to be a knock off game.
Reading the above document, it appears that you could theoretically take a game like, say, Monopoly and re brand it. You can't use the property names, Community Chest or even the little car or the bucket, but you don't have to. Call the game Total Ownership, rename the properties, add condos and cottages instead of houses and hotels and call the cards you draw something else. Redescribe the rules without using any of the terms used in Monopoly.
This would appear to be legal, but of course, why would you want to do it? Classic Monopoly is still available in stores. Just go and buy it. I haven't looked, but I'd be surprised if it hasn't happened at the very least once. People do knock off products all the time. Some cross the line of what's legal, but many are legal under the law.
But, what about old the Role Playing Games? Obviously, after D&D was published back in the 70's, other games came to light. You can't create a medieval role playing game system and then claim nobody else has a right to make that type of game. Tunnels & Trolls and Runequest are two that appeared not long after D&D, and offered alternatives. Of course, they weren't mimicking the D&D rules exactly. They played much differently. Runequest seemed more complex, while T&T was simplified.
No copyright concerns there.
With Wizards offering up D20 and OGL to publishers, one might think they opened the door for an old school version of D&D to be emulated, but that's not really what they had in mind. They were attempting to make it possible for independent publishers to publish works compatible with the current 3.5 Edition of the rules. Some good companies, such as Goodman Games and Paizo, have come on board with that.
But, is it theoretically possible to use the OGL and laws of Copyright to make an emulation of the older version of D&D? This is a question that has been posed, and we all know an effort has been made to test the waters. When I first started thinking about reviving my old game idea, I thought about recreating that old red box set game I know and love. But, I wasn't comfortable with the idea that I could be sued or that I could put hours into creating a book, only to be told I could do nothing with it. I balked and went a different way, but I still watch the other effort with great interest and hope for the future.
I've been thinking about this for a while. What is the danger of trying to recreate the old game (Basic or Advanced) for a new generation and an old generation that wants it back? Can it really be done? Let me look at the Copyright document cited above, and see if anything comes to mind. Understand that this is opinion, and nothing I say here should be considered legal advice.
Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form.
What I'm thinking is the owners of 1st Edition, The Wizards (the real authors were bought out long ago), own the expression of those rules, not just the proper names and trademarks. Huh?
Okay, let me go through more of the document and see if I can sort this out. Those who think it is possible to do it may cite this in support of their claim:
Copyright protection does not extend to any idea, system, method, device, or trademark material involved in the development, merchandising, or playing of a game.
And this:
Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles.
But there may be an honest challenge to that notion if Wizards wants to make a case. Do they? I don't know, and I hope not. What's my point? I'm getting to it. Let me give you the critic's rebuttal from the above document, and then I'll make my point:
Some material prepared in connection with a game may be subject to copyright if it contains a sufficient amount of literary or pictorial expression. For example, the text matter describing the rules of the game, or the pictorial matter appearing on the gameboard or container, may be registrable.
The point of conflict seems to be what is copyrightable from an RPG and what isn't. Certainly, even the supporters of the effort to revive old school D&D agree Melf's Acid Arrow or Eye Of The Beholder or Dungeon Master and other names are off limits. They have used the OGL to do what they are doing and claim legality. It has yet to be challenged, and may never be challenged. Then again...
The fact is, the critics challenge the very existence of their product and it's legal right to even attempt to bring back 1st Edition under the OGL that seems more designed to support D&D 3.5 than previous works. Do you think The Wizards even expected this to happen? Well, they should have. People love that old game and some of them don't like the new game. If Wizards won't address their concerns, and they didn't, an old school project was bound to happen.
So, what's the challenge? If you are going to basically take 1st Edition and put it back into circulation, which is what the old school project does, then you are basically republishing an out of print product, at least in part, that is still owned by a company that has moved on from it. Can it even be done? That's the question, but I think I know one of the concerns of legality that some are feeling.
In the above document, it says you can basically make knock off products and I believe you can with D&D as well. There may be a way to do it that they haven't even considered. Well, they probably have and rejected it as going too far away from the mark. Yes, they have pulled the trademarked stuff from what they've done, and yes, they have redescribed the rules and other things in their own words, but they forgot something. Okay, maybe they didn't. Maybe they felt they didn't have to due to the OGL.
Terms like Armor Class, Hit Points, Hit Dice, Spells, Levels and so many others are covered in the legal documents The Wizards released, but they are covered in the D20 sense as compatible with D&D 3.5. Does it still pertain to a 1st Edition version of the game? THAT'S the unanswered question. The man who handled OGL for The Wizards eluded to that recently at Enworld.
Again I'm not trying to attack anybody or be negative. Fact is, I would like nothing more than for Basic D&D and 1st Edition AD&D to be back on the shelves in book form, not just pdf form, but that is a decision The Wizards have to make. It seems to me, there are areas in these documents that need to be challenged for clarification, and that's what the old school project is doing. Basically, they are saying show us what's wrong with it, or back off.
In it's current form, it may be that AC, HP, HD and all of that stuff could be what's pointed to by the critics as being against the law or at least the spirit of what Wizards had in mind with the OGL. But it's open, right? Maybe, maybe not. If Wizards feels the old school project isn't within the spirit of the OGL as they envisioned it, there could be a problem in the future, and I say could be. They may decide it isn't worth the trouble.
Wanna avoid that problem? Armor Class becomes Armor Level or Defense Level. Hit Points become Life or Health Points. Hit Dice become Life Dice. Don't refer to rolling a 20 sided dice as roll a d20. In short, take out all of those terms. Rename the characteristics. If certain charts are off limits, create new ones or devise other methods to describe the mechanics of the game.
Remember, Copyright protection does not extend to any idea, system, method, device that makes the game work. The terms in question may be owned, but the ideas those terms represent are not. Therefore, if somebody REALLY wanted to put something on the shelves, THAT may be the way to do it. I'm no lawyer, so I can't say for sure. If you were going to try, you'd better use good judgement, or you could still get into trouble.
In the end, I will continue to work on HotDC as it is and attempt to make it work as it is. I've put enough work into it, and I'm starting to like the way it's looking. I just felt like offering an opinion on the subject that I haven't seen offered anywhere else. I certainly hope the old school efforts gain momentum, because we need them. There is nothing wrong with being able to play an rpg with some paper, one rulebook and some dice, rather than a bunch of books, miniatures and game mats.
