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June 2, 2023 | CopyrightEntertainment

Wizards of the Coast’s Open Game License Almost Suffers Critical Hit

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Author(s)
Olivia Loftin

Associate Attorney

Dungeons, Wizards and Streams

When friendly conversations turn to the topic of tabletop gaming, Dungeons & Dragons (“D&D”) is often one of the bigger names that often gets thrown around.  Having emerged in the mid-1970s as a hobby for nerdy enthusiasts, D&D allows players to use a set of rules and lore to craft their own stories and imaginative experiences, many of which have themselves influenced fantasy novels, video games, and films.  The game’s creative and financial potential has not gone unnoticed, with publisher Wizards of the Coast (“WotC”) acquiring the original publishing company in 1997.

It also comes as no surprise that with the advent of internet streaming, D&D “campaigns” have found a popular and lucrative foothold for content creators such as Critical Role and DnDBeyond.  Although D&D-based streams have allowed content creators to use their creativity, humor and acting skills to grow their audience, savvier creators have begun to research ways to cover potential legal liabilities.

What is the Open Games License?

Due to the iconic nature of D&D’s gameplay systems, WotC published an Open Games License (“OGL”) together with a Systems Reference Document (“SRD”) and Product Identity to govern what players can and cannot monetize.  Players can follow the guidelines of the OGL and apply D&D gameplay mechanics to their own stories without fear of infringing WotC’s intellectual property rights and inviting potential legal action.

Recently, a leaked draft of an updated version of the OGL spurred discontent in the online community when it was found to propose several controversial changes.  The changes include (1) a 25% royalty on revenue from content creators who earn above $750,000 per year; (2) the addition of a right for WotC to use any content created under the license for any purpose; (3) a supposed ban on virtual tabletop simulators that found popularity during the COVID-19 pandemic; and (4) the de-authorization of anything made according to the previous OGL.

On January 27, 2023, WotC responded to the overwhelmingly negative community feedback by releasing their SRD under an irrevocable Creative Commons license and ceasing their attempts to deauthorize prior versions of the OGL.  Whether this about-face was a genuine reaction to fan discontent or an attempt to improve PR before the release of the recent film “Dungeons & Dragons: Honor Among Thieves” remains to be seen, but content creators likely no longer have to worry about their use of D&D content.

Future Legal Implications

Open licenses, including the OGL, are a way for copyright owners to allow the public to “use and remix” their creative work while adding restrictions and maintaining their ownership of the copyright.  Examples of what would be restricted under the OGL include “…product and product name lines, 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…”  In general, the OGL allows the public to monetize their tabletop experiences using D&D rules and mechanics but restricts them from official materials such as established characters, settings, stories and art assets.

In contrast, the new Creative Commons license for the SRD allows individuals to copy and redistribute the medium in any format, as well as “remix, transform, and build upon the material for any purpose, even commercially” if appropriate credit is given and a link to the license is provided.  So long as the creator does not falsely suggest that WotC has endorsed their product or try to restrict others from doing the same, they will be allowed a great deal of freedom to create what they see fit and even profit from it.  Additionally, WotC does not control the license and therefore cannot alter or revoke the license.

Conclusion

Since the new SRD is under a less-restrictive Creative Commons license, content creators will have more freedom than ever before in crafting and molding fresh material for their audiences.  However, when dealing with more complicated licenses and creating derivative content, it is always best to consult an experienced intellectual property attorney.

Photo by Clint Bustrillos on Unsplash
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