A warning for those who don't care: this is long and covers a lot of old territory. New folks and people who are having trouble with "what is" and "what isn't" ok to copy might find it interesting (caveat emptor).
> Richard Stewart > > I am just following the Copyright Act/Berne Convention > > Copyright Act of 1976 (17 USCS Sects. 100-105) > > Sect. 103. Subject matter of copyright: Compilations and derivative works > (a) The subject matter of copyright as specified by section 102 [17 USCS > Sect. 102] includes compilations and derivative works, but > protection for a > work employing preexisting material in which copyright subsists does not > extend to any part of the work in which such material has been used > unlawfully. This means that (as in Pickett v. Prince), Pickett could not sue Prince for using a guitar based on Prince's personal symbol as derivative of the guitar Pickett made because Pickett used that symbol unlawfully. Prince legally and lawfully created a product that was nearly identical to Pickett's creation because Pickett's creation did not qualify for copyright protection. You do not gain copyright protection for material you steal. > (b) The copyright in a compilation or derivative work extends only to the > material contributed by the author of such work, as distinguished from the > preexisting material employed in the work, and does not imply any > exclusive > right in the preexisting material. The copyright in such work is > independent > of, and does not affect or enlarge the scope, duration, ownership, or > subsistence of, any copyright protection in the preexisting material. This means that you can gain ownership only of the elements you add, and not over any of the elements you used as the basis for your creation. It specifically refutes your "infinite derivation" argument. I don't know how much clearer it could be. This particular section was used in the basis of the ruling for Anderson V. Stallone, where the court ruled that a fictional work that contained the Rocky character was in fact the joint property of both Anderson and Stallone, because Anderson owned the original content he created, and Stallone owned the elements of the Rocky character. The court ruled that because Anderson's work was unlawfully derivative, he had no rights to sue Stallone for the creation of a movie that was largely similar to the fictional work. Further, because the derivative fictional was jointly owned, neither party could to anything with the work unless they both agreed on the course of action. This is great example of a court being unwilling to parse a document and assign ownership of various parts to the respective creators of that material. > You have to prove that it is derivative first. Not if you postulate it is derivative. You said yourself "Regardless of whether it is derivative or not, does not matter." That can accurately be restated by saying "Even in a case where it is known to be derivative, it does not matter." The courts think otherwise. > Technically ANY game made using the SRD is derivative > mechanics-wise which, using your legal reference > would make everything moot. Or you are making an erroneous assumption about what the term "derivative" means, because the federal court of appeals did not think the point was moot. None of this applies to independent parallel development, which is why not every game is derivative of the SRD. If the expressions of a set of ideas in parallel development can be shown to come from separate sources (such as two authors who did not collaborate, or who legally derived from a common source), then the works are not "derivative" in the copyright sense. A work may be "derivative" in the common parlance if it uses a similar idea and not be "derivative" in the copyright sense if it uses a unique expression of that idea. When one says that ideas are not covered by copyright, they mean that the idea (but not the expression) can be used without creating a derivative work. A text description of a fictional character or creature consists of both "ideas" and "expression". The idea of a unicorn with a saw on its head is not protected, but the specific expression is the description of saw in detail (3 feet long, metallic, with teeth on opposite side and wielded in a slashing motion). If you make a picture that shows exactly the same details, the burden will be on the defendant to prove that it was not derivative. If that description is OGC, then you must either release your image as OGC or not at all. -Brad PS- A great discussion of several infringement suits and how the courts looked at various precedents (as well as the specific case citation for Anderson v. Stallone) can be found at http://www.brownraysman.com/publications/techlaw/usidram_adl.html. There are several interesting comments about how graphical representation of literary characters may and may not be found to be infringing. Given the opinion rendered in the text, I would say that WotC has an excellent chance of defending its Illithid/Mind Flayer character. _______________________________________________ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
