> Alec A. Burkhardt
>
> If a name is PIed, it is only PIed in
> relation to the specific description that goes along with that name in the
> specific product. That's why the definition of PI says "names of ..."
> rather than just names.
Ok, I've thought about it, and I'm pushing the limits of what a layman can
state with any certainty. Please let me clarify what I think you said.
Just because Joe has claimed a public domain thing as PI doesn't mean I
can't claim the same name as PI in my work. I agree with this.
However, I think that changes if you derive from Joe's work. I think it has
to do with opportunity - if you are creating a derivative work and your work
has a character or creature with the same name as in the original work, I
think that character will be seen as derivative regardless of its public
domain origin. Obviously this is an extraordinarily difficult example to
comment on, because so many factors go into what is and is not derivative.
I'll do my best to explain my reasoning, but I'm pushing the limits of my
understanding of copyright with these examples.
I think the OGL, by granting the right to 'use the Open Gaming Content, and
by citing the source work in the copyright section of the OGL, will be seen
as answering the question of whether the new work is derivative or not. You
are in effect explaining that it is derivative but that you have permission
to create it.
Since the OGL has no way to indicate which portions of the work you are
deriving from, I think the courts will assume that you are deriving from the
work as a whole. In that case it will be assumed that your version of the
public domain creature is derivative of the source documents rather than
from the public domain because you have already established that you did in
fact derive from some part of their work and that *any* resemblance of your
work to theirs is a result of that derivation, despite the fact that it
*could* have come from some other incited source.
I guess what I am saying is that I think I agree with you in the
hypothetical sense, but that the OGL is not sophisticated enough of a
license to allow this particular nuance to carry through. It seems like
just the sort of thing to avoid if you want to stay within the safe harbor.
-Brad
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