First of all, I'll pull up the definition given by the US Copyright Office as to what can and cannot be copyrighted:
WHAT CAN BE COPYRIGHTED: WHAT WORKS ARE PROTECTED?
Copyright protects "original works of authorship" that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories:
literary works;
musical works, including any accompanying words
dramatic works, including any accompanying music
pantomimes and choreographic works
pictorial, graphic, and sculptural works
motion pictures and other audiovisual works
sound recordings
architectural works
These categories should be viewed broadly. For example, computer programs and most "compilations" may be registered as "literary works"; maps and architectural plans may be registered as "pictorial, graphic, and sculptural works."
WHAT CANNOT BE COPYRIGHTED:
Several categories of material are generally not eligible for federal copyright protection. These include among others:
1.) Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)
2.) Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents
3.) Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration
4.) Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)
===== I think for the sake of our discussion, the points of interest are:
Literary works can be copyrighted.
Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents and ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration cannot be copyrighted.
What does this mean? It means that when I write a book, while the text of the book itself is copyrighted, the title is not, the names used in the book are not, and the ideas, procedures, methods, et al expressed therein are NOT copyrighted.
Therefore, in any Publication A, we have two types of material... we have "Uncopyrightable Material B" intermingled with "Copyrighted Material C."
=====
Now, let's go to the US Patent and Trademark office to learn what a trademark is. From their FAQ:
A trademark includes any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name.
Do I need to register my trademark?
No. However, federal registration has several advantages including notice to the public of the registrant's claim of ownership of the mark, a legal presumption of ownership nationwide, and the exclusive right to use the mark on or in connection with the goods or services set forth in the registration.
Thus, a trademark is often "uncopyrightable" becasue it falls under the same category of "stuff" as number 2 in "what cannot be copyrighted" above. Thus, trademarks are a whole different animal than copyrighted material.
To continue our example above, Publication A might contain a third type of material - "Trademark D" - which may or may not overlap with Uncopyrightable Material B and Copyrighted Material C (confused yet?).
=====
Now, under "regular" law, I am allowed to take this book and use Uncopyrightable Material B insofar as it does not overlap Trademark D. I am also allowed limited use of Trademark D where it overlaps Uncopyrightable Material B, but one of the main limits of that use is that I cannot represent that I am identifying myself by Trademark D or I have committed Trademark Infringement. Copyrighted Material C is completely off-limits to me.
In other words, this is where we are without the OGL.
I can use B, with certain limitations if it's also D. I cannot use C.
Enter the OGL.
1a.) "Contributors" means the copyright and/or trademark owners who have contributed Open Game Content;
By this, we can conclude that Open Game Content must be copyrighted and/or trademarked material - otherwise there is no need to identify one who is authorized to contribute Open Game Content as the copyright and/or trademark owner.
1d.) "Open Game Content" means the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity and is an enhancement over the prior art and any additional content clearly identified as Open Game Content by the Contributor, and means any work covered by this License, including translations and derivative works under copyright law, but specifically excludes Product Identity.
This can be reduced to (1) "derivative works of existing OGC," (2) "methods, procedures, et al," and (3) "anything else the Contributor decides to add." Excluding PI of course, but we'll get to that in a moment.
1e.) "Product Identity" means product and product line names, 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 clearly identified as Product identity by the owner of the Product Identity, and which specifically excludes the Open Game Content;
Of particular note here is that most of the items on this list - notably names of characters, et al - normally fall under the category of "Uncopyrightable Material." However, at the end of the day, Product Identity is "whatever is identified as Product Identity by the owner" - which in and of itself could lead to the argument that since you cannot copyright names, you cannot be the copyright owner of a name. Since you cannot be the copyright owner of a name, you cannot identify it as Product Identity, as you are not its owner.
This means that, in the truly strictest reading of the OGL, you cannot PI the names of spells, monsters, etc. as you do not own them.
However, when we consider the intent of the OGL itself, especially in light of the fact that it specifically calls out names of creatures, etc. as that which may be PI'd, it stands to reason that the express intent of the Open Game License is allow you to protect things that copyright law normally does not allow you to protect. If we do not view things in this light, it will trigger the reformation clause to wipe out from this list all things that cannot be copyrighted - including names of creatures, characters, etc.
1f.) "Trademark" means the logos, names, mark, sign, motto, designs that are used by a Contributor to identify itself or its products or the associated products contributed to the Open Game License by the Contributor.
This is just another way of stating "trademark" as understood by the USPTO. Nothing new here.
=====
Having gone through that, we can now look again at Publication A and see what happens if we publish it under the Open Game License. We can call any particular piece of material Open Game Content O, Product Identity P, or neither of the above - in which case normal copyright/trademark law applies.
We then have the following possible combinations.
Copyrighted Material C that is also Open Game Content O (C&O).
Copyrighted Material C that is also Product Identity P (C&P).
Copyrighted Material C that is neither (C).
Uncopyrightable Material B that is also Product Identity (B&P).
(Note that we cannot have B&O because you must be a copyright holder to declare something as O).
Uncopyrightable Material that is not Product Identity (B).
Trademark D that is Uncopyrightable Material B and also Product Identity (DBP).
Trademark D that is Copyrighted Material C and also designated as Product Identity (DCP).
Trademark D that is Copyrighted Material C and also designated as Open Game Content (DCO).
Trademark D that is Uncopyrightable Material B and also designated as Open Game Content (DBO) - permissible since you can be a Trademark owner.
Trademark D that is Uncopyrightable Material B and neither. (DB)
Trademark D that is Copyrighted Material C and neither (DC).
That's a total of 11 possible combinations. =====
With all of this in mind, let us look now at what the OGL allows us to do. I won't bother citing specific sections, as I think it is well-understood that the Open Game License allows anyone who wishes to abide by the terms of the OGL to use Copyrighted Material C that is also Open Gaming Content O in any way they wish. This of course is an extension of rights to them that is not normally part of copyright/trademark law. That takes care of C&O, DBO, and DCO.
Material that is C or DC is unusable per normal copyright law (we need not consider the OGL for the DC case since DC material is already 100% off-limits).
Material that is B is usable per normal copyright law.
So we still have to consider C&P, B&P, DBP, DCP, and DB (DB since the OGL specifically puts additional limitations on Trademarked Material). We can lump C&P, B&P, DBP, and DCP together because of Section 7.
7. Use of Product Identity: You agree not to Use any Product Identity, including as an indication as to compatibility, except as expressly licensed in another, independent Agreement with the owner of each element of that Product Identity.
Since you cannot Use Product Identity at all, it doesn't matter what "flavor" of PI it is (C&P, B&P, DBP, or DCP) - as part of the OGL, you agree not to use it. That leaves us with only DB to consider.
7. (cont.) You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such Trademark or Registered Trademark.
In other words, for stuff that is Trademark but Uncopyrightable Material (DB) gets only one additional restriction per the OGL - you cannot use the Trademark to indicate compatibility.
=====
Hopefully that clears up completely how the OGL affects you with respect to copyright and trademark law. In summary:
(C&O) - you get more rights to this material than you would without the OGL.
(C&P) - you give up "Fair Use" rights to this material under the OGL.
(C) - your rights are unchanged under OGL - you have only "Fair Use" rights.
(B&P) - you give up your rights to use this material under the OGL.
(B) - your rights are unchanged under the OGL - you may make full use of this as normal.
(DBP) - you give up your rights to use this material under the OGL.
(DCP) - you give up your "Fair Use" rights to this material under the OGL.
(DCO) - you get more rights to this material than you would without the OGL.
(DBO) - you get more rights to this material than you would without the OGL.
(DB) - your rights are unchanged under the OGL - you may make use of this limited by Trademark Law as normal.
(DC) - your rights are unchanged under the OGL - you may make "Fair Use" of this limited by Trademark Law as normal.
*wipes head*
That was long and ugly, but hopefully it clarifies exactly how the OGL works with respect to copyright and trademark laws. However, the fundamental question remains... how can/must we interpret the "any" statements in the Open Game License?
=====
Again, I think the reading is based very much on what you feel the Open Game License looks like.
Wizards of the Coast offers me their Open Game Content O1 under the terms of OGL1. Bastion Press offers me THEIR Open Game Content O2 under the terms of OGL2. Green Ronin offers me THEIR Open Game Content O3 under the terms of OGL3. OGL1 has a Product Identity designation PI1. OGL2 has with it a PI designation PI2. OGL3 has with it a PI designation PI3.
When I decide to take WotC up on their offer to use O1, I agree to the terms of OGL1. What happens next depends very much upon how you read the OGL.
I happen to read it as a "legal boilerplate" license... which means OGL1 is a separate and distinct agreement from OGL2 is a separate and distinct agreement from OGL3. In other words, when I agree to the terms of OGL1, I have NOT implicitly agreed to the terms of OGL2 and/or OGL3.
Thus, when I agree to the terms of OGL1, which includes PI designation PI1, I agree only to PI designation PI1. That OGL2 and OGL3 happen to have PI2 and PI3 is immaterial - I did not agree to OGL2 and OGL3, and hence do not have to respect PI2 and PI3.
Remember, PI does not exist outside the confines of the OGL. I would argue that PI2 does not exist outside the confines of OGL2. In other words, PI2 does not exist in OGL1 or in OGL3... because even though the majority of their wording is the same (the Section 15's differ), OGL1 and OGL2 and OGL3 are in fact THREE SEPARATE LICENSES, not different branches of one single "metalicense" that encompasses OGLn where n=1 through m and m is the total number of publications produced under the OGL.
I think that's what it boils down to... is OGL1 a separate and distinct license from OGL2, or are they both branches of a single metalicense?
Thus, when I accept OGL1, I accept as part of that PI1. When the license refers to "any Product Identity" I read that as "any PI1" - because PI2 and PI3 do not exist as far as OGL1 is concerned. However, that does not change the reading of "any Trademark" - since Trademark2 and Trademark3 exist independent of OGL1, I am still bound to honor Trademark2 and Trademark3.
Again, I feel this is the crux of the issue... because Trademarks exist independent of the OGL, "any Trademark" has a meaning that can step outside the OGL itself to create the "list." Because Product Identity has no existence outside of the OGL, "any Product Identity" cannot step outside the license to create it's list. And if you subscribe, as I do, to the concept that each OGL is in fact a separate license, *not* a branch of a metalicense, it means that the reading of "any Product Identity" is confined only to the Product Identity set forth in the OGL(s) you agree to when you copy Open Game Content.
The consequence of this IS dangerous for protections provided by Product Identity designations... it means that there is no upstream accountability. In other words, assume Publication A re-uses Publication B's OGC by means of OGLb, and cuts out Publication B's PI entirely. It is permitted to do so under the terms of the OGLb (with PI designation PIb). Publication A must offer that content from Publication B as Open Game Content in its own work; however, Publication A offers it under the terms of OGLa (with PI designation PIa). If Publisher C comes along and uses Publication A as a source work, and creates OGC that is identical to Publication B's PIb, tough cookies. Publisher C agreed to OGLa and PIa, not OGLb and PIb. Now, there might indeed be some nasty litigation because Publication B shows up in Publication C's section 15, but I think if Publication B shows that it used Publication A and only Publication A as its source, and therefore published only under OGLa, not OGLb, it's free and clear.
What does this interpretation mean? It means that, while second-generation products must respect your first-generation PI, third-generation products not only must not, but in all likelihood CANNOT (because the second-generation products couldn't include your PI unless they got a separate agreement, and thus your PI designation will not show up in second generation products - meaning that the third generation products will be unencumbered by your PI designation).
Is this completely disastrous? Not necessarily - it gives you a "limited time" to enjoy the fruits of your PI (while all the second generation products are being created), but does not guarantee you a perpetual monopoly on your PI (because your monopoly disappears once the third generation appears).
In fact, oddly enough, the only way to encourage the "downstream protection" of your PI is to - gasp - include a "goodie license" with it for everyone to use... and that doesn't guarantee the protection (as someone could choose to strip out the PI and publish sans goodie license). After all, if all the second generation products choose to use your Goodie License, it forces all third generation products to honor your PI.
So in this reading, the only long-term way to protect your PI is to, in effect, give it away! And even that doesn't *guarantee* long-term protection (because someone can strip out the PI and the following generation of products can reference this one instead)! And while this may sound like sacrilige on a publisher's mailing list, I really believe that's a very good thing... I am of the opinion that trying to put stronger "lockdown" on your "Intellectual Property" is rather like trying to hold onto water by squeezing harder and harder - i.e., it's counterproductive and actually accomplishes the opposite of what we want it to.
However, I could be wrong - and the OGL, rather than being an agreement between myself and WotC (assuming I use only the SRD as a source) is a metalicense and in using the SRD I also enter into an agreement with Green Ronin, SSS, Bastion Press, and every single person who has ever or will ever release an OGL book. However, I really can't see that as the intent of the license, as it seems ludicrous to argue that by using WotC's material, I entered into a contract with, say, Joe Muchiello. And that when Joe Blow decides to start publishing under the OGL by using the SRD, I also immediately enter into an agreement with Joe Blow. I honestly don't see any court that is going to uphold that interpretation.
So what are the implications to the OGL? Number one, the only "enduring legacy" you can drop into the OGL that will persevere downstream is in your Section 15 entry. I suppose you could tie a PI designation into your Section 15 entry and THAT would persevere downstream. But it means only your OGC, and NOT your PI, will endure "downstream" past the second generation. A truly interesting thought... and one which, I hate to say, I rather like.
Again, it all hinges on "is OGL1 a separate agreement from OGL2" or is OGL1 part of "uberOGL" along with OGL2? If they are in fact separate agreements, then PI2 has no bearing on PI1, and I don't have to worry about PI2 when writing a work based on OGL1. If I agree to both OGL1 and OGL2 by using OGC1 and OGC2, I agree to PI1 and PI2, but not PI3 from OGL3. And so on.
=====
To illustrate this just a little better, let's say I enter into an agreement with Bobby Joe. I call it the "Money For Silence License." In the contract we sign, I agree to pay him $5 and the clause, "the recipient of the money can't say any word that is a 'No-No' Word" appears. Later on in the contract, the words "it" and "the" appear as the 'No-No' Words.
Then I enter into a contract with Joey Bob. Again, I call it the "Money For Silence License." His contract is almost identical to Bobby Joe's - I agree to pay him $5. His contract has the clause "the recipient of the money can't say any word that is a 'No-No' Word." Later on in the contract, the words "help" and "silly" appear as the 'No-No' Words.
Then Bobby Joe enters into a contract with Joey Bob. He calls it the "Money For Silence License." Bobby Joe agrees to pay Joey Bob $2. The contract has the clause "the recipient of the money can't say any word that is a 'No-No' Word." Later on in the contract, the words, "butter" and "bread" appear as the 'No-No' Words.
If Bobby Joe says, "help" can I tag him for using a 'No-No' Word (because Joey Bob's contract says it's a 'No-No' Word and my contract says "any 'No-No' Word")?
If Joey Bob says, "the" can Bobby Joe tag him for using a word that appeared on the 'No-No' List?
If Joey Bob says, "butter" can *I* tag him for it?
In other words, does the list of 'No-No' Words grow for everybody each time somebody new signs their name to the "Money for Silence" license with a different set of 'No-No' Words? Or is the "any word that is a 'No-No' Word" meant to apply only to those words that are listed on the contract that those people agree to, regardless of what appears on other contracts that happen to bear the same name and same wording?
I believe the Bobby Joe and Joey Bob example above illustrates succinctly what this argument is all about - and why I believe it is an utter non-issue.
Yes, this approach waters down the value of PI declarations ENORMOUSLY... perhaps to the point of not really being worth the effort.
It also makes defense easy - if you say, "The Sigil used my PI - you can tell because he has my OGC," I can simply pull out Jimmy Joe's book (which contains your OGC but not your PI) and say, "no, I agreed to Jimmy Joe's contract, not to yours. I used Jimmy Joe's OGC - which happens to be the same as your OGC." And I think it would be an instant non-issue... you and I have no contract, therefore I am not bound to respect your PI designations.
No, I don't have a problem with that. In fact, I rather like it. I expect most publishers NOT to like it. But then, I've been against draconian PI designations from the start.
However, I *do* try to contact people before I use their OGC as a courtesy ANYWAY, so please don't take this like I'm trying to be an @$$. I even try to do the work to find the "original source" instead of relying on secondary sources. I try to do things the "ethical way," even if I'm not legally obligated to do so.
But if you really want to lock something down and protect it, you pretty much have to Trademark it. PIing it doesn't - and shouldn't - do much of anything.
--The Sigil
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