A few years ago I wrote a blog post titled “D&D & IP” in which I discussed the Open Gaming License that allows (allowed?) anyone to use elements of Dungeons & Dragons, for free, to create their own products.
To recap:
WotC wants to encourage D&D enthusiasts to create and sell products that fit within the game – within certain limits. Those limits are defined by WotC’s Open Gaming License (“OGL”). This link directs you to the most recent version of the OGL. If you want to create and sell content within the D&D universe, you must obey those rules. You are strongly advised to read that document.
OK, so the OGL is a license that allows you to use certain elements of D&D to create your own content. But what are those elements? WotC publishes those elements in what they call the Systems Reference Document (“SRD” – sorry for all the acronyms.) The SRD is essentially a simplified version of D&D’s rules. Lots of extras found in the various D&D rulebooks (often referred to as “flavor”) are excluded from the SRD. So you can only publish and sell user-created content that falls within the SRD. If there’s something – for example, a specific monster – that’s found in one of the D&D rulebooks or modules, but isn’t in the SRD, you can’t include it in your own self-published content.
In this case, WotC is Wizards of the Coast, the owners of Dungeons & Dragons.
Recently developments suggest the status quo is changing, so the purpose of this post is to summarize where we are and what we know at this point.
Last week, iO9 reported that it had received a new draft OGL (OGL 1.1) that WotC was planning on publishing. The draft OGL 1.1 is available here. If this draft, or a version of it, is published and becomes the official policy of WotC, there will be some significant changes to the rights of 3rd party content creators who rely on D&D’s gaming system.
First, the draft states that the previous version of the OGL (1.0(a) to be precise) is “no longer an authorized license agreement”. The meaning of this is unclear. Does this mean that WotC is revoking the previous license agreement, and any content created under the previous OGL is unlicensed (and, in a sense, illegal) unless it complies with OGL 1.1? Or simply that you can’t rely on the previous OGL going forward, and OGL 1.1 applies to any newly-created works? Note that, as the iO9 article states,
The original OGL granted “perpetual, worldwide, non-exclusive license” to the Open Game Content (commonly called the System Resource Document) and directed that licensees “may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License.”
A license can be perpetual but can still be revocable. “Perpetual” means there is no fixed end date. But if it doesn’t say that it’s “irrevocable”, then in some circumstances it can still be terminated. It would be helpful if, at least, WotC was to clarify this language.
Another significant change in this draft is the “Commercial” versus “Non-Commercial” distinction. If you are going to receive any kind of money or other any other kind of compensation from the work you’re creating under the new draft, it is considered “Commercial”. Once you meet the “Commercial” definition, you fall into one of 3 tiers:
- If your work makes less than $50,000 total (gross) revenue in one year, you have to register the work with WotC. This means you are providing them with your contact information, the name of the product, price, and a description.
- If your work makes between $50,000 and $750,000 per year, then you have to provide WotC with annual financial reporting.
- If your work makes over $750,000 per year, you have to pay WotC 25% of the revenue (gross, meaning off the top, not after taxes) from the product on all money received over $750,000. Meaning, if your work makes $750,001.00, you owe WotC 25 cents.
There are some other details here – e.g. if the work is sold through Kickstarter, the license fee is 20% rather than 25% – but we can get into those details in a future blog post.
The draft OGL also notes:
We can modify or terminate this agreement for any reason whatsoever, provided We give thirty (30) days’ notice. We will provide notice of any such changes by posting the revisions on Our website, and by making public announcements through Our social media channels.
Many commentators have been concerned about this. However, the reality is that any previous version of the OGL was subject to modification by WotC at any time, so from that perspective, there is no substantive change here.
Finally, there is an additional point of concern in the draft OGL:
You own the new and original content You create. You agree to give Us a nonexclusive, perpetual, irrevocable, worldwide, sub-licensable, royalty-free license to use that content for any purpose.
This clearly looks like an overreach and it’s not clear to what extent this term would actually work if put into practice. For example, if you publish an adventure under the OGL and create a new character in that adventure, can WotC create books, games, movies, or other products using that character without your permission, and without paying you any royalties? It’s, at best, an open question whether a court would consider this a valid license of your trademark and copyright in the character, or other elements which are unique to your product. This point will require deeper analysis, perhaps in a future blog post.
The bottom line is that if the draft OGL is put into place, there won’t be a financial impact on the vast majority of 3rd party creators, few of whom make close to $750K per year from their works. But this may be crippling to the high-level, successful creators who rely on the OGL. And all creators who sell their work in any way will need to register with WotC, and provide them with certain information, which many may not prefer to do.
Creators who are concerned about these changes may want to consider avoiding the OGL entirely, but that entails creating a new game system, which is cumbersome, time-consuming, and raises the bar for entry for new players. WotC giveth, and WotC may taketh away.
I’ll try to keep this blog updated as new developments come to light. If you have any questions about IP law in the gaming space, don’t hesitate to contact me.
Note: This post has been edited from the original. Thanks to all who commented and provided feedback.
