<<For example, it would be very difficult to circumvent the declaration of
"Gray Waste of Hades", without your source being an infringement of an
existing copyrighted work. As an example, I did a search for that
phrase on Google, and the only links that come up are D&D related. >>
Does this matter? "Gray Waste of Hades", if not trademarked, cannot be copyrighted by itself. So, if somebody takes the phrase and writes a story with the phrase then they can't be guilty of copyright infringement on 4 words.
<<Therefore you (or your friend) would be hard pressed to defend the short
story as not being derivitive of WotC's copyright. >>
Nope. WotC cannot claim copyright on something that short. Only potentially a trademark. If it's not trademarked, then it's free for anyone to use outside of the OGL.
<<Once it's been
established that your source material for the name "Gray Waste of Hades"
is in fact a derivitive work, >>
It wouldn't be. Title 17 of U.S. Code doesn't define derivative works to be works derivative of uncopyrightable materials.
My friend could write a paragraph on New Jersey and describe it as "The Grey Wastes of Hades". If that's not trademarked, then no protection, and bingo, it's in another source.
<<it'd be very easy to prove that you
intended to circumvent the PI declaration. >>
Sourcing from the public domain is an attempt to circumvent the PI declaration, and indeed. The phrase "Grey Wastes of Hades", if not trademarked, can't be defended since it's uncopyrightable. It's already in the public domain, right this very instant if it's not trademarked. It has no "owner" (under copyright law) who can even claim the term as PI.
<< The fact that the story was
created after the release of the original work, and the only purpose for
the story in the first place was to supply a name that was declared as
PI, proves that you intended to use PI that you are restricted from
using.
>>
If the only question is can I source from another non-OGL source and snag a term either from their or from the public domain, then having created it first is not relevant. Either the term is in the public domain or it's not.
Keep in mind that the PI declaration has to be established by the _owner_ of the PI. On what grounds (if it's not trademarked) would a phrase like "Grey Wastes of Hades" be _owned_? And if WotC can't establish "ownership" then it can't be PI'd.
The fact that WotC has or hasn't established a trademark on the phrase would not negate the point -- which is more generalizable -- that PI declarations (if Ryan is correct) hold for some things, few, if any, additional protections other than those granted already under U.S. law.
Ryan's reading of the language, if I understand his point, is very close to saying "the text declared as PI is unlicensed and this license grants the PI owner additional protections that he can enforce only if he is indeed the _owner_ of the PI in question". If you can find it in another source, you can use it. Why? Because if it's in another source and it's not there illegally then it must not be owned, and if it isn't owned it couldn't be PI in the first place.
Ownership is one of the fundamental requirements for making a PI declaration. It's in black and white in the license.
Lee
