On Mon, 23 Apr 2001, Ryan S. Dancey wrote:
> The challenge to using the Product Identity clause isn't creating something.
> It's creating something original. The more aspects of the entity identified
> as PI, the better the chances are that you've actually done so.
>
> If you designated "the name Conan" as PI, you're not doing much, since I can
> use that name in my product without much concern by using a source from the
> public domain (the "prior art") as a cite if you sue me.
Yes, but Kal is also arguing that you could use the name Conan to refer
directly to the character that was claimed as PI in someone's product.
Since that character could easily involve enhancement of prior art, this
would not appear to be allowed under the OGL. And if this isn't the case,
the only types of names that can be PIed are going to have to be extremely
far-fetched and ridiculous. If I create a character named Eric the Blade,
Kal's argument appears to be that I cannot claim that name as PI since
neither Eric nor Blade can be claimed as anything but common words.
And even if nothing they did was an enhancement, that still doesn't permit
someone to use their version of Conan. Their version would clearly be in
breach of the OGL (they PIed something they didn't have the right to PI),
but if I wanted to use Conan I'd need to go back to the source myself
rather than go through the violating work. Now I could perhaps actually
use their work and then just claim in a court case (if one were to
materialize) that I went back to the source, but for the court it is the
fact that I went back to the source that is crucial here. And if the
other party could show that I had to use something of theirs that wasn't
available either through public domain or OGC I'd likely be in trouble.
alec
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