From: "John Kim" <[EMAIL PROTECTED]>
> : Some material prepared in connection with a game may be subject to
> : copyright if it contains a sufficient amount of literary or pictorial
> : expression. For example, the text matter describing the rules of the
> : game, or the pictorial matter appearing on the game-board or container,
> : may be registrable.
The copyright office is an odd beast. It has broad authority to implement
the law that it oversees (in this case, Title 17). However, it's
interpretations and the statute itself are subject to review and
modification by the courts and the legislature. Since about 1970, the
courts have been interpreting Title 17 to give broader and broader rights to
content creators, and to narrow the rights 3rd parties have to re-use
creative content. Nowhere in Title 17, for example will you find the words
"character copyright" - a concept created whole cloth by the ruling for
Kroft in the lawsuit that Kroft brought against McDonald's advertising
company over Mayor McCheese (no, I am not making this up: one of the
linchpins of modern IP law is a case involving a talking hamburger.)
Also, a series of decisions since the '70s have vastly expanded the rights
that software programmers have to use the copyright law to cover their work.
Initially, the idea that software could be copyright was rejected on the
grounds that software is simply instructions, and instructions cannot be
copyright. However, with the advent of high-level programming languages,
the software developers became more and more successful at convincing the
courts that high-level code was not just a list of instructions, but a
creative work with implicit copyright. Now, it is commonly accepted that
code can be copyright, and the prevaling opinion of just two decades ago has
been completely reversed.
WotC feels that if and when a tabletop RPG case is ever brought to trial,
the court may be convinced to apply the concepts of character copyright,
plus the concepts of copyright as they are being applied to software to
carve out a huge protected class of work. The few RPG cases that have been
litigated to date have all traveled down this path to one degree or another,
and have almost all received at least minimal signs of support from the
courts involved. That is one reason that threats of litigation have been so
effective in the hobby gaming market - everyone's lawyers are advising their
clients that they are substantially at risk of being found to be infringing
if the case goes to trial.
This last bit from the Copyright office's circular that I highlighted is
real the "door" through which this legal theory is going to walk. Just like
the software companies managed to convince the courts to take a very big
leap from the code itself to a copyrighted work, the game publishers will
seek to convince the court to find that hobby TRPG products are also
deserving of similar treatment due to their complex nature and the creative
expressions they embody.
All of this just compounds the "grey area" problem the OGL seeks to address.
Because of this unstable state, a competent attorney will be forced to
provide very cautious guidance to her clients, resulting in a >more<
restrictive interpretation of copyright law as it applies to RPGs than will
probably be warranted in the long run. In my opinion, this uncertainty is
the hidden motive force behind the fragmentation of the RPG system market.
Ryan
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