The terms of the Open Gaming License Version 1.0a are as
follows:
OPEN GAME LICENSE Version 1.0a
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This just officially names the
document. It doesn’t really mean
anything.
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The following text is the property of Wizards of the
Coast, Inc. and is Copyright 2000 Wizards of the Coast, Inc
("Wizards"). All Rights Reserved.
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This is WotC claiming its own
copyright in the text of the OGL.
There are some possibilities of your admissions below, but,
technically, the OGL hasn’t started yet…
By agreeing to the use of this
license, you agree that WotC holds a copyright in the text of the OGL. You’re essentially pre-admitting that
they hold the copyright to the text and agreeing that you can’t use the text
in any way that they haven’t approved.
You are waiving your right to
argue that portions of the text are not subject to copyright at all. For example, there’s a pretty strong
argument that the first section of the OGL (“1. Definitions:”) is so generic
that it’s not subject to copyright.
By accepting the license you agree that it is subject to copyright. That doesn’t mean that it is, it just
means that you can’t
challenge it.
You are not explicitly giving up
your fair use rights to use the text, but by agreeing to use the OGL, in any
future litigation, the character and purpose prong of your use would weigh
heavily against you.
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THIS IS THE MOST IMPORTANT, MOST BORING PART OF ANY
CONTRACT.
Why is this so important? Because words mean whatever you
define them to mean in a contract.
If you define “Butterflies” as “ninjas
that jump out of bottles and chop you up hard,” then that is what
butterflies means. No pretty flying
bugs for you, just angry ninjas.
Well, not necessarily angry.
Why not? Because the
contract didn’t define the ninjas as being angry, just embattled and desirous
of chopping you up hard.
Also, be careful, sometimes a
definition references another defined term. When that happens, the (see “Contributors”, below)
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(a)"Contributors" means the copyright and/or
trademark owners who have contributed Open Game Content;
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See—I told you this stuff would
get complicated! The very first
term references another defined term in it. To understand who is a “contributor,” you have to
understand what “Open Game Content” is.
So, you might want to scoot on down there and see what it is before
you figure this one out.
Back? Okay…here we go…
Once you know what “Open Game
Content” is (and, if you read below, you know that’s very much open to
interpretation), “Contributors” becomes a little more obvious. A Contributor is someone that created
“Open Game Content.” WotC likely
means Contributors are anyone that
made anything that’s part of the SRD after the text of the Open Game License,
but that’s not what they said when
they defined Open Game Content.
Basically, the Contributors are: Mike
Mearls, Jeremy Crawford, Chris Perkins, Rodney Thompson, Peter Lee, James
Wyatt, Robert J. Schwalb, Bruce R. Cordell, Chris Sims, Steve Townshend, E.
Gary Gygax and Dave Arneson.
As other products are added to the
Open Game Content, those products’ authors will become Contributors as well.
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(b)"Derivative Material" means copyrighted
material including derivative works and translations (including into other
computer languages), potation, modification, correction, addition, extension,
upgrade, improvement, compilation, abridgment or other form in which an
existing work may be recast, transformed or adapted;
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This is tough, because the OGL
doesn’t define an “existing work.”
Without that, it’s tough to determine what you can use as a base
work. If the term isn’t defined
in the contract, you default to the plain meaning of the term in the
contract. Depending where a suit
related to the license is filed, that could be a strict dictionary definition
of “existing” and “work” or an attempt to divine what the two parties that
made the contract intended the phrase to mean. Either way, this seems like a very likely area where
litigation could arise.
WotC might actually intend this to
be very vague. That lets them
claim that most anything could be “derivative material.” This cuts both ways. On one hand, in copyright law,
derivative works are defined extremely broadly. On the other hand, some states’ contract law have special
tenets for contracts where one party (WotC) wields vastly superior bargaining
power over the other party (the licensee, aka You) and construe vague terms
in the contract against the more powerful party? You can thank the banks and insurance companies for
this—rare—consumer-friendly development.
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(c) "Distribute" means to reproduce, license,
rent, lease, sell, broadcast, publicly display, transmit or otherwise
distribute;
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This is likely overkill. “Distribute”’s dictionary meaning and
plain meaning are unlikely to be sources of conflict between the
parties. Additionally, this
definition for “Distribute” tracks closely with
the Copyright Act’s definition for “publication.” That’s almost assuredly not an accident, but for the same
reason it’s likely overkill.
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(d)"Open Game Content" means the game mechanic
and includes the methods, procedures, processes and routines to the extent
such content does not embody the Product Identity and is an enhancement over
the prior art and any additional content clearly identified as Open Game
Content by the Contributor, and means any work covered by this License,
including translations and derivative works under copyright law, but
specifically excludes Product Identity.
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PET PEEVE ALERT! If you’re coming to this section
immediately from the definition of “Contributors,” above, because it had the
term “Open Game Content” within its definition, take a very close looks at
this definition. What do you
see? The definition for “Open Game Content” has the term “Contributor”
used within it. That
means no reader can really understand either term without reference to the
other. That’s not fatal to
either term as used in the contract, but it is sloppy drafting.
This is the part of the contract
where you start trading away your rights in exchange for rights or other
benefits from the other party (WotC in this case). Let’s break this one down…
The “game mechanic” including the
“methods, procedures, processes, and routines” are the exact portions of any game that are not subject
to copyright. You can bet that
somewhere down in the agreement that you will have to promise to treat “Open
Game Content” as if it were subject to copyright by WotC.
What about “to the extent such
content does not embody the Product Identity and is an enhancement over the prior art and any additional content clearly identified as
Open Game Content by the Contributor, and
means any work covered by this License, including translations and derivative
works under copyright law, but
specifically excludes Product Identity”? Well, and
is interpreted as being conjunctive, so, to be Open Game Content, something
needs to check ALL the
following boxes:
· It’s a game mechanic or similar
material;
· It’s NOT Product Identity;
· It’s an enhancement over the prior
art (no idea what that means. Maybe
it means that it’s somehow improvement over a previous edition of the
game? Could maybe figure it out
with some research, but this is a blog post, not a brief.);
· The Contributor (WotC or anyone
with a trademark or copyright interest in the intellectual property
underlying what’s in the SRD) clearly identify it as Open Game Content
(basically by putting it in the SRD);
· It’s work covered by this License;
o (License shouldn’t be capitalized
here—they never bothered to define it, though it’s pretty obvious they mean
“this license you are reading right here.”
· It’s NOT Product Identity (again)
That’s some sloppy, sloppy
drafting. I suspect that what
WotC wants this to mean is that
Open Game Content is comprised of game mechanics and related material that they
(or their predecessors in interest, which is a fancy legal term for the
people that owned the TSR/D&D/AD&D/etc. intellectual property before
them) developed and that doesn’t otherwise conflict with the terms of the
Open Game License. But, no
matter what, Product Identity can NEVER be Open Game Content. Unfortunately, that’s not what they
wrote.
This one is definitely open to
interpretation. Not good, since
this is THE central
operative term of the license.
It would have been easier to
indicate that Open Game Content is “anything contained in Annex 1 of this
agreement, which is posted online at [URL linking to the SRD].”
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(e) "Product Identity" means product and product
line names, logos and identifying marks including trade dress; artifacts;
creatures characters; stories, storylines, plots, thematic elements,
dialogue, incidents, language, artwork, symbols, designs, depictions,
likenesses, formats, poses, concepts, themes and graphic, photographic and
other visual or audio representations; names and descriptions of characters,
spells, enchantments, personalities, teams, personas, likenesses and special
abilities; places, locations, environments, creatures, equipment, magical or
supernatural abilities or effects, logos, symbols, or graphic designs; and
any other trademark or registered trademark clearly identified as Product
identity by the owner of the Product Identity, and which specifically
excludes the Open Game Content;
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This one is also torturously
drafted. Trademark courts
frequently disagree about what
is and is not product identity (which is a subset of trade dress and
trademark). But, by agreeing to
the license, you’ve agreed not to use any of the things listed in the
“Product Identity” definition in your work.
I don’t like this definition
either. It’s broad and
self-contradictory. Does it mean
that you can’t use the specific things that WotC has identified as Product
Identity explicitly? Or does it
mean that you can’t use any of these things and WotC’s list of Product
Identity is merely a helpful tool to help you determine what is and isn’t
covered here?
If it means only the list of
things that WotC has explicitly designated as Product Identity, this
definition is overly long and extraneous. If WotC’s Product Identity list is merely an aid, this is
self-contradictory because there are some things that a licensee would almost
have to be able to use, like:
· Representations of thematic
elements or concepts;
· Names of spells, enchantments, and
special abilities;
· Creatures;
· Equipment; and
· Magical or supernatural abilities
or effects.
I know; I know! They CYAed with “specifically excludes
the Open Game Content.” This is
a mess!
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(f) "Trademark" means the logos, names, mark,
sign, motto, designs that are used by a Contributor to identify itself or its
products or the associated products contributed to the Open Game License by
the Contributor
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Argh! This could have been encapsulated with a term like trade
dress which is (shocker!) included in the definition of Product
Identity. In fact, going this
route would have made for a much simpler and more intelligible agreement if
WotC had adopted a less byzantine definition of Product Identity.
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(g) "Use", "Used" or "Using"
means to use, Distribute, copy, edit, format, modify, translate and otherwise
create Derivative Material of Open Game Content.
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This definition is straightforward
and, like “Distribute”, tracks pretty closely to copyright
jurisprudence. This license is
going to govern how you can “use, Distribute [referring to the way
“Distribute” is defined above], copy, edit, format, modify, translate and
[should be “or”] otherwise” create 5E stuff.
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(h) "You" or "Your" means the licensee
in terms of this agreement.
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This means “you”.
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2. The License: This License applies to any Open Game
Content that contains a notice indicating that the Open Game Content may only
be Used under and in terms of this License. You must affix such a notice to
any Open Game Content that you Use. No terms may be added to or subtracted
from this License except as described by the License itself. No other terms
or conditions may be applied to any Open Game Content distributed using this
License.
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This places requirements on you,
the licensee:
1) You will follow the license’s
terms when you make Use of Open Game Content;
2) You will put in a page at the
end of your Use that says it uses Open Game Content
It also places some requirements
on you AND WotC:
1) The License cannot be modified
except in ways the license says it can be modified.
· See #9 below. That gives WotC the right to
change/update the license at any time, BUT (and this is a big “but”) you have
the option of using any version of the license that’s ever been
published. This is a huge
concession to you, licensee!
2) Neither you nor WotC can attach
different rules for using Open Game Content, so long as it’s Used under this
license.
· This doesn’t preclude you and WotC
from developing your own, separate license. In fact, if you become a BFD third-party publisher, you
might end up with your own license.
That’s likely what happened for Kobold Press and Green Ronin Games
when they created their content for WotC.
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3.Offer and Acceptance: By Using the Open Game Content You
indicate Your acceptance of the terms of this License.
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Okay, this is in fact total
BS. What they mean here is “If
you behave in a way consistent with this license, it applies to you.” They can’t say “if you use 5E
content, you’re governed by this license.” They can’t do that for the same reason that I can’t say,
“If you sneeze on me, you’ve agreed to paint my house for free.” There are multiple ways to accept a
contract, but you have to know that
you are accepting the contract.
So, you’ve got to have an idea that you agreed to the license.
Normally, we indicate agreement by
signing a contract, but that would be unwieldy here. So, instead, WotC is saying, “By
acting as if you’ve read this license and adhering to its terms, we
understand that you have read the license and agree to its terms.” Does that mean that if you start
posting/distributing 5E material (OGC or not) that you’ve agreed to the license? NO. But, it DOES mean that if you start acting like you’ve agreed to
the license, a court will likely interpret that you have agreed to the
license.
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4. Grant and Consideration: In consideration for agreeing
to use this License, the Contributors grant You a perpetual, worldwide,
royalty-free, nonexclusive license with the exact terms of this License to
Use, the Open Game Content.
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Consideration is just a fancy way
of saying that a contract has to have give and take on both sides. Consideration is what each side gives
away as a part of the contract/deal:
You, the licensee, give away: All
the rights that you’ve agreed not to invoke in court in the case of future
litigation; anything you’ve expressly promised not to do; the option to NOT do something required of
you under this license.
WotC, the licensor, gives away:
The right to charge your royalties for the use of Open Gaming Content, the
right to sue you for copyright and/or trademark infringement for uses that
adhere to the terms of this license.
Both sides have given away
something of value, so there’s likely valid consideration here.
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5.Representation of Authority to Contribute: If You are
contributing original material as Open Game Content, You represent that Your
Contributions are Your original creation and/or You have sufficient rights to
grant the rights conveyed by this License.
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If you make use of the license,
you’re representing that you created the material that rides on the license
or the person that did has sold (or…you guessed it…licensed!) her/his rights
in the creation to you.
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6.Notice of License Copyright: You must update the
COPYRIGHT NOTICE portion of this License to include the exact text of the
COPYRIGHT NOTICE of any Open Game Content You are copying, modifying or
distributing, and You must add the title, the copyright date, and the
copyright holder's name to the COPYRIGHT NOTICE of any original Open Game
Content you Distribute.
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You agree to list every source
you’ve used in developing your content.
Essentially, you agree to add the text of Section 15 at the end of
your licensed work. To the
extent that you use other stuff that might later be made available as Open
Game Content, you’ll have to add references to that in your Section 15 as
well.
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7. Use of Product Identity: You agree not to Use any
Product Identity, including as an indication as to compatibility, except as
expressly licensed in another, independent Agreement with the owner of each
element of that Product Identity. You agree not to indicate compatibility or
co-adaptability with any Trademark or Registered Trademark in conjunction
with a work containing Open Game Content except as expressly licensed in
another, independent Agreement with the owner of such Trademark or Registered
Trademark. The use of any Product Identity in Open Game Content does not
constitute a challenge to the ownership of that Product Identity. The owner
of any Product Identity used in Open Game Content shall retain all rights,
title and interest in and to that Product Identity.
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You’re making a few promises here:
1) You won’t use anything that
WotC has identified as Product Identity in the definitions section;
2) You won’t expressly state that
your product is compatible with 5E, unless you get a different agreement with
WotC that says you can;
3) You can’t use any WotC
trademark to indicate that your product is compatible with 5E; and
4) You agree that if you do
somehow use some Product Identity in your publication, you will not challenge
WotC’s rights that WotC actually owns it.
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8. Identification: If you distribute Open Game Content You
must clearly indicate which portions of the work that you are distributing
are Open Game Content.
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This is pretty obvious. The whole idea behind the OGL is that
you get to attach your creative stuff to WotC’s game mechanics. You are agreeing that your product
will make it clear what portions are your creative endeavors and which are
WotC’s Open Game Content, and free for everyone to use.
This is actually hugely
advantageous to you, because it means that you can pretty clearly designate
the items (not Open Game Content) that YOU
intend to own. That intellectual
property is NOT owned or in
any way encumbered by WotC. It’s
ALL yours!
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9. Updating the License: Wizards or its designated Agents
may publish updated versions of this License. You may use any authorized
version of this License to copy, modify and distribute any Open Game Content
originally distributed under any version of this License.
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WotC can change the license at any
time without notice to you.
Unlike creepy other licenses, which often say that the licensor can
change the terms on its own just by notifying you that it’s changing, WotC
has agreed that you can always use this version OR any other version that
they happen to make available.
This is a big concession from them. Be happy!
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10. Copy of this License: You MUST include a copy of this
License with every copy of the Open Game Content You Distribute.
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Another obvious one—if you make a
product that uses this license, you’ve got to put a copy of the license in
it. Or distribute it with it—as written, you could slip
license sheets in the products you produce. So long as you give a copy of the license to someone when
they get the product from you, you’re good to go.
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11. Use of Contributor Credits: You may not market or
advertise the Open Game Content using the name of any Contributor unless You
have written permission from the Contributor to do so.
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This is to stop you from making
outrageous claims. Section 15
lists Mike Mearls, Jeremy Crawford, Chris Perkins, Rodney Thompson, Peter
Lee, James Wyatt, Robert J. Schwalb, Bruce R. Cordell, Chris Sims, Steve
Townshend, E. Gary Gygax and Dave Arneson as the authors or other creators of
the Open Game Content.
So, theoretically, if you include Open Game Content in your product,
you are using their work. If
their work is in your product, they are sort of authors, aren’t they? NO. THEY AREN’T.
This provision expressly says that
you can’t claim any of them as authors of your work without their
permission—in writing. It would
be really uncool to do that, so don’t.
The same applies for other Contributors who are added as authors of
Open Game Content. You wouldn’t
want someone doing that to you, and this says you can’t do that to them.
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12. Inability to Comply: If it is impossible for You to
comply with any of the terms of this License with respect to some or all of
the Open Game Content due to statute, judicial order, or governmental
regulation then You may not Use any Open Game Material so affected.
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Basically, this is a reservation
of rights. This says that if for
some reason the law says that you’d need to use the Open Game Content
differently than this license says that you can, you agree that you just
can’t use it at all.
This is basically an escape clause
in case someone does challenge the license in court and it’s declared
void. That could actually make
the agreement void not just for the guy that went to court, but for everyone!
Under this provision, you agree
that if that happens (or similar happens because of Congress or a government
agency), you give the rights to use the content back to WotC as if this
agreement never happened.
Using “Open Game Material” rather
than “Open Game Content” here was a bad move—they are intellectually the same
thing, but legally, maybe not.
If they were the same, a court would ask, why do they have different
names. This raises some red
flags!
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13. Termination: This License will terminate automatically
if You fail to comply with all terms herein and fail to cure such breach
within 30 days of becoming aware of the breach. All sublicenses shall survive
the termination of this License.
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This means that if WotC tells you
that you are in violation of the license, you’ve got 30 days to fix your
violation. But, if you’d
licensed your non-Open Game Content
to someone else, that license would survive. Here’s an example:
Under the license, you create a
whole new 5E campaign setting.
It becomes wildly popular and another publisher wants to write
adventures set in your setting!
You make a deal with them that allows them to publish adventures set
in your campaign setting and that piggy back off of your construction of the
5E rules that are Open Game Content in exchange for giving you $1.00 for
every adventure they sell. If
WotC invokes the termination provision, your license with WotC falls and you
can’t create more material. But,
the license you gave to your adventure-writing friends will survive. (It will definitely survive for your
friends use, whether they still have to pay you is arguable, though likely).
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14. Reformation: If any provision of this License is held
to be unenforceable, such provision shall be reformed only to the extent
necessary to make it enforceable.
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This is pretty impressive. Normally, contracts say “If any part
of this contract is deemed invalid, all the other parts that can still be
enforced are enforceable.” This
instead says “If any part of this license is deemed invalid, we automatically
agree to change it—but only just enough that it becomes valid.” This is actually pretty impressive
lawyering—if this is legal. It
should be, but this is the sort of creative lawyering that sometimes gets
frowned upon.
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15. COPYRIGHT NOTICE Open Game License v 1.0a Copyright
2000, Wizards of the Coast, Inc.
System Reference Document 5.0 Copyright 2016, Wizards of
the Coast, Inc.; Authors Mike Mearls, Jeremy Crawford, Chris Perkins, Rodney
Thompson, Peter Lee, James Wyatt, Robert J. Schwalb, Bruce R. Cordell, Chris
Sims, and Steve Townshend, based on original material by E. Gary Gygax and
Dave Arneson.
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You’ve agreed in Sections 6, 8,
10, & 11 to use this text (and to identify any other Copyrighted Open
Game Content-using material you relied upon) to identify the source of the 5E
compatible material you are using.
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END OF LICENSE
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This is to indicate that the
license is done.
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