Mongoose can't claim ownership over a public domain concept (at least not as the term "ownership" would be applied to intellectual property). They could well claim ownership over a specific incarnation of the character (that's something that's ownable), they could claim a new rendering of a public domain character as PI, they could PI their novel description of a public domain character as PI (since that text would be copyrightable).
Let's take this outside the OGL concept for a second, and consider IP ownership in general. One cannot claim a trademark over the Norse god of thunder Thor. You might have Thor Autoparts or Thor Motion Pictures, but neither of those would prevent me from writing a story about Thor. You might even be able to trademark Thor Autoparts or Thor Motion Pictures. Neither would prevent me from writing a story about Thor provided that it didn't cause consumer confusion with Thor Autoparts and Thor Motion Pictures. You might even be able to trademark Thor as Marvel has done, but if that trademark exists that trademark extends only to their rendition of The Mighty Thor, not to every rendition of Thor.
Insofar as one agrees that PI must be owned to be declared, I think the only reasonable reading of "ownership" is as the term is used in intellectual properties law (although the license does not define the term for us). If a person must have "ownership" of IP to declare it as PI, then he can only defend his PI insofar as someone else misuses something he OWNS.
That's just my two cents.
There are other constructions of the license (since the sentence speaking about ownership is poorly punctuated, and so it can be read in a rather sketchy manner so that the clause about PI declaration does not extend to the entire laundry list of PI, but only to things that are trademarks or registered trademarks), but I consider those to be labored readings of the license that would be illogical and undermine the usage of the license.
If you accept this reading of the license, then the answer about what can be claimed and the extent to which PI protections extend is a matter than can be settled internal to the license itself.
Now here's the big curveball. I've mentioned this offlist to Clark. Once you agree not to use somebody's PI, which are you agreeing to:
A) not to use PI from the books you directly borrowed from
B) not to use PI from all the books in your Section 15
C) not to use PI from ANY book you've ever borrowed OGC from
D) not to use PI from ANY book listed in Section 15 of ANY of your products
E) even broader disallowance of use of the items designated as PI
The license says you agree not to use PI. It doesn't say "you agree not to use PI from the works in your section 15". It says that if somebody gives you OGC and you accept it you won't use their PI period, at all.
I think that's a more real concern and potentially an inadvertent hidden "gotcha".
Lee
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