<<OGL & PI are completely separate animals from copyright. This is a
contract in which you agree to place a portion of your creation in the
public domain. Copyright and PI/OGL are apples & oranges.
>>
Why do people keep repeating this? Look, you can't have it both ways. Either PI is a subset of copyright and trademark and "ownership" (a prerequisite for PI) is established under those bodies of law OR it must be true that PI goes beyond those bodies of law, and in going beyond those bodies of law, it must contain items which can be "owned" as PI, but not as a copyright or trademark. If the latter is true, the license fails utterly to define ownership, and we have no reason to believe that Ryan's requirements that something be an enhancement over the prior art would be true, because that is something that one might expect for copyright ownership, but not for some amorphous, never-before-defined form of ownership over a never-before-defined category of IP which seems to include a laundry list of items which aren't normally subject to any kind of "ownership" under the normal definitions of IP law.
<<Poses, concepts, themes, etc. - these can be PI'd in order to create
protection for aspects of a product that, indeed, can't be copyrighted.>>
Then on what basis can you PI it. You must _own_ it. Either you must agree that "ownership" is not defined the way copyright and trademark law would define it OR you must agree that poses can't be declared as PI.
<<Under PI, I'm screwed. We'll ignore the trade dress issue entirely. By
using the same pose, the same theme, and the same concepts (ie, the
clothing as a means of expressing the concept of the 'gangbanger'
lifestyle), I have trespassed into territory they clearly own, and
either they laugh it off or I destroy my print run.
>>
Define "clearly own". Under what body of law, and by what definition? We didn't debate "ownership" of PI for 2 weeks last month for nothing. It's not clearly defined, and unless you assume that PI is 100% a subset of pre-existing classes of protectable IP, then you must agree that in some cases "ownership" is undefined for us by the OGL.
<<But I cannot DUPLICATE the picture,
as a complete work. >>
To be clear, my examples have included (what is standard for monsters and spells for many vendors) that 100% of the character in question is licensed with the exception of the name. To declare the name as PI requires ownership of the name. And you have to be able to claim copyright on the name, since you can't claim infringement on anything else since you just licensed away 100% of everything else.
In these circumstances it is very unclear to me that copyright can subsist in the name by itself at all once everything else is licensed. Perhaps it can in only the most minimal sense, but I've never seen any case law where an untrademarked name is not licensed but everything else about a product is licensed and the owner expected to protect his name by copyright law alone (which would be necessary in some readings of the PI, but not all, as a prerequisite to establish "ownership").
Lee
