“Owning” RPGs

I recently got an inquiry about selling some play aids and scenarios for Dread. The short answer is “go for it!” But I thought I’d put the long answer up here for everyone to see, and maybe generate some discussion.

So, from my perspective there are three issues: legal, ethical, and practical. That is, can you legally make and sell a product that works with Dread, should you, and does it make sense. 

Is It Legal?

Let’s start with the one that ought to be the most straightforward, but is actually probably the murkiest: legality. 

On the one hand, copyright law is pretty straightforward: it simply protects the work, not some other work. The only clause in the statute that deals with related works (to the one copyrighted) is the bit about “derivative works”. Contrary to the interpretation that Wizards of the Coast has championed in promoting their Open Game License, a derivative work was originally defined as taking the content and recasting it in another form. Examples of this are turning a book into a movie, or  creating a video game out of a movie.

In other words, a derivative work was originally intended to describe something that potentially replaced the original—if you see the movie, you don’t need to read the book (or, at least, that’s the concern). Your typical RPG supplement is precisely the opposite of this—not only does the Complete Witch not replace the D&D Player’s Handbook, it’s basically useless without it. There’s no real risk of people buying Complete Witch and therefore WotC losing a sale of the Player’s Handbook. If anything, there’s some chance of someone seeing a game supplement and thinking it’s so cool that they then go out and buy a game they hadn’t previously been interested in. 

That said, case law has significantly extended and, IMHO, perverted the concept of a derivative work. It now covers a lot of things that the original simple description didn’t. Other case law has made it clear that in other fields, simple compatibility is not any sort of violation of IP rights. You can’t stop someone from creating a bag compatible with your vacuum, and you shouldn’t be able to stop someone creating a game supplement compatible with your game via copyright, and probably not via patent. However, to the best of my knowledge that has never been put to the test in a court for an RPG, and there are enough differences in what “compatible with” means for an RPG versus a computer game or even a board game that precedents for computer games aren’t obviously applicable. 

And so long as it’s properly declaimed, you ought to be able to mention someone else’s trademark, too. And book titles can’t be trademarked or copyrighted—you have to have a series of books to be able to trademark them, and the titles are still not copyrightable. 

To address a couple potential objections: No, I’m not a lawyer, though I’ve tried to research this to have well-founded opinions. So while I’m confident enough in this when it’s me, you should seek actual legal advice if you find yourself in a situation where the details of “derivative work” matter. The big famous RPG suits have been about trademarks or contract violations or specific content allegedly stolen, not about only compatibility or allegations of derivative works. And the one that comes closest to directly addressing the question of whether a supplement for an RPG is any kind of infringement was settled out of court, so it still doesn’t give us an answer. 

So while you can’t be 100% certain that no one will ever sue you, or that they couldn’t possibly win, you can be certain that I won’t be suing you merely for making a product compatible with one of my games.

Is it OK?

Now, ethically is, IMHO, even clearer than the law ought to be: one doesn’t own an idea. If you’re copying vast swaths of someone else’s text, or you’ve recreated enough of the game to make the original irrelevant, then I think you’ve got some ‘splainin’ to do. It might be ok, but it’ll take some explaining to be sure. But if what you’ve created is dependent on someone else’s work, you’re probably in the clear ethically: you’re helping them, not hurting them. 

There’s an obvious exception to this: If you’ve just created the Raping & Racism supplement for someone else’s game, that’s ethically dubious—the original game creator is likely to suffer some of the collateral damage. So if you’re associating your work with someone else’s, and the tone is significantly different, then you might have crossed an ethical line. 

This is also where clear attribution is important. You should always make it clear what you’re doing—that your work is owned by you, and not attributable to someone else—but this is particularly important if you’re creating something that might cast related works in a bad light.

But, in any case, my personal take for games that I have a say in is: as long as you’re making it clear that it’s your work and not mine, go for it! Plus, in the particular cases of Dread and Four Colors al Fresco, the text is released under a Creative Commons license, so there’s even more you can do with it, both ethically and legally. 

So Should I? 

Ah, now this is a bit trickier. There are all sorts of pros and cons to creating a work compatible with someone else’s game. You’ve hitched yourself to their star in more than one way, for good or ill. You’ll be forced to have an incomplete book in some sense—it is definitionally dependent on the original game, and if people don’t have that, or don’t want it, or it’s out of print, they probably won’t want your book either.

But from the standpoint of the original game’s creator, it’s almost all good. Network externalities mean that the more visible a game is, the more people who know about and are interested in it, the more likely it’ll get played. And since it’s just a supplement, it doesn’t compete with the original game—it drives sales of the original game. 

Which brings me back to where I started: if you want to create a supplement or scenario for Dread (or Four Colors al Fresco, or anything I might publish in the future), go for it! I think you’re also legally and ethically in the clear in the case of anyone else’s games, but if you’d feel better getting permission first, there’s nothing wrong with that. 

What About Trademarks?

Now, trademarks are a whole ‘nother thing. The Impossible Dream, and its logo, are trademarks we employ, precisely to address the question of authorship and make it clear who is responsible. If for some reason you want to use those, you need to do so carefully, in such a way that you’re clearly not making any claim to ownership. And I think it’s a good plan to use plain text, not logos, in those situations. But I see no reason why the standards established in the auto and pharmaceutical industries wouldn’t apply to the game industry, so you should be able to simply mention someone else’s trademark and make a basic statement of comparison or compatibility without fear. That makes more sense for a gameline than for a company, but ought to be legal in either case. 

But, again, I am not a lawyer. I don’t even play one on TV. I did play one in an RPG once. Well, technically I played someone who was playing a lawyer, but that’s probably the same thing in this context. But I digress. Point is, these are my hopefully-well-researched thoughts on the matter, not legal advice. And I’m on much shakier ground once we start talking trademark—I’ve simply spent more time learning about copyright. John Kim has a section of his website with a few more links and some hosted court documents, if you’re interested in this topic. But if you really need to know reliable answers, go find someone with a law degree and an interest in IP. 


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