By Tim Lamoureux

The Tabletop RPG (TTRPG) world has been in an uproar ever since an alleged leak of a document known as Open Gaming License (OGL) 1.1 as well as some communication regarding this document from Hasbro’s subsidiary company Wizards of the Coast (“Wizards”). Most recently, Wizards released a statement through its affiliated website that it would not be revoking licenses. However, what if they, or similar companies with such licenses, ever change their minds?

I will not be interpreting the allegedly leaked material, as I lack adequate information as to its authenticity. What I will instead be discussing in this article is how secure, legally, individuals and businesses who have been operating with a license under OGL 1.0a can feel under the law. In other words, with many individuals and businesses who have been operating under OGL 1.0a’s license expressing fear about losing their right to do business, just how easily could Wizards of the Coast revoke the license if it wanted to? First, let’s get through some basics of D&D, TTRPGS, as well as copyright and trademark law.

What is Dungeons & Dragons?

As a threshold matter, it is important to understand what Dungeons & Dragons, or D&D, is. As with many diversified brands, it currently encompasses a wide variety of media, much like Star Wars. There are Dungeon & Dragons branded videogames, films, books, comic books, and virtually all manner of media. However, for purposes of this article and the OGL, it concerns the base game from which it all began, and therefore describing what a tabletop RPG is, and how Dungeons & Dragons fits into that space.

A tabletop RPG is a roleplaying game played by players primarily using their imagination within a broader structure of rules that determine how the world and the players within it can operate. This can be aided by the use of miniatures, map grids, or other representations of what is going on within the game world, either virtually or through the use of physical models and other media. There are a wide variety of TTRPG systems including Pathfinder from Paizo Inc., White Wolf Publishing’s Storyteller System for its World of Darkness setting, and Cyberpunk published by R. Salsorian Games. Currently, however, the fifth edition of Dungeons & Dragons is easily the most popular TTRPG on the market.

What is the SRD?

To understand what Wizards’ “standard rules document” (SRD) encompasses, it is important to understand how a session of Dungeons & Dragons is played. At a basic level, it is played by players and a dungeon master (DM), who runs the game, adjudicates rules, and describes the game world to the players, who will rely on and use rulebooks and pre-written adventures to understand the bounds of the game, and what the characters being played by the players and DMs can do, as well as the general rules of the world itself (thus there are things like falling speed to explain gravity within the bounds of the game). These rules, how they are drafted, and things like the names of spells and weapons, along with their descriptions, as well as playable races (dwarves, elves, humans, etc.) and classes (fighter, rogue, wizard, etc.) are included in the base level of the rules, called the systems reference document, or SRD. One way to view it, is it provides the basic rules of the game. There are other, additional rulebooks and add-ons produced by Wizards of the Coast that are not included in the SRD, like the Player’s Handbook, which, for example, contains additional material like the artificer class.

The SRD lends itself to a broad variety of possible settings, of which there are numerous clearly copyrighted fictional worlds owned by Wizards of the Coast, such as the high fantasy Forgotten Realms or the grittier, more urban, “elfpunk,” Eberron.

However, while it may not be updated into the SRD, it should really be understood, per the next section, that any rules comprising the D&D system, even if added later, are a) not copyrighted and b) within the scope of the OGL 1.0a which is defined as the “game mechanic.” Getting into fair use, and other concepts, about what you can and cannot use without a license, is outside the scope of this article, however, but content creators would have a variety of copyright and trademark arguments for greater use, for instance, using the D&D logo to advertise compatibility with the system under “nominative fair use” in trademark law.

What isn’t in the SRD?

What may be a constant thorn in Wizards’ side is that game rules are not subject to copyright protection. This comes from Section 102(b) of the Copyright Act, which states: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” What this means is that if I have a mechanical effect in a game rule, that is a method or operation, or a system, that can’t be owned. Put another way, it comes from a venerable copyright concept called “merger” where an idea and its expression are so inimical that you cannot copyright the expression, as it exists merely to convey an unprotected idea. Here, if the idea is a spell that causes flames to erupt from one’s hand, it would be a mechanical idea that nobody can own. This is why just about any fantasy game you can think of has a fireball, or a lightning bolt, Wizards cannot own that idea.

On other hand, Melf’s Minute Meteors is copyrightable expression to the extent the language describing the spell contains fluff, or purely creative and non-mechanical content. Like the character Melf creating the spell would be something Wizards owns, as that is entirely divorced form how the spell works in the game world.

Thus, the copyrightable content in the SRD is not the game mechanics, which may be what Wizards is most interested in keeping, yet, even without a license a person could lift this wholesale with minimal risk, as long as they stuck to the pure mechanics. The SRD’s description of the iconic races and classes of D&D however, are protected.

However, sometimes game rules can be patented, so it is always important to specifically check first, which is why it is important to consult an attorney in specific instances. I will note that a cursory search of the US Patent Office for patents for which Wizards of the Coast was an applicant containing the word Dragons game up with no patent for the current rules of Dungeons and Dragons. Likewise, patents can be invalid if the method is used publicly before they are patented. Arguably beta testing for the D&D systems could disqualify them. Given this, I believe the system is not patented and therefore the copyright analysis remains the applicable one for the current issue.

What is OGL 1.0a?

So now that we know what a TTRPG is, and what the SRD is and isn’t, we can understand what the OGL 1.0a is. It was first drafted and published in the year 2000, to allow, but also limit, third-party publishers in producing material compatible with Dungeons and Dragons, specifically at the time, the third edition of the Dungeons & Dragons system.

As drafted, the OGL is a full contract, not a bare license. There are clear obligations for both sides and clear acceptance terms. Wizards offers the use of its mechanical rules, and the licensee agrees to not use content that is explicitly excluded from these rules. Per paragraph 3, using the copyrightable material embodied in the SRD (referred to as the Open Game Content in the OGL) constitutes the acceptance of the offer embodied in the OGL, which is an offer made to the public at large.

Therefore, Wizards cannot unilaterally withdraw from its terms, for anyone who has already made an agreement under it. They can, of course, revoke the offer to new licensees at a any time.

It should also be noted that without some form of clear acceptance of the OGL from the licensee, through the use of some language, for instance, alluding to the OGL 1.0a license on the materials themselves, there is a real chance no contract was created, given that you could argue you were using your independent right to access public domain material, like the rule set or a minotaur character.

What is the scope of the license?

If you’ve followed along through the entire article so far, you may come to a surprising but true conclusion: The OGL 1.0a essentially grants you nothing that isn’t already public domain outside of, potentially, the exact descriptions in the SRD explaining the game mechanics. For example, you can no longer argue fair use as a complete defense for the use for copyrighted elements of Dungeons and Dragons, since have to contend with your contractual obligation not to.

Clearly, this presents a double-edged sword, because part of what you agree not to use by agreeing to the OGL 1.0a is arguably public domain as well. However, the advantage, which is greater if you have fewer resources or if you are not a lawyer, is that do not have to parse out what in the SRD could arguably flowery language that could be copyrighted expression, and, perhaps most importantly, however, is that it communicates that Wizards won’t sue if you follow the OGL’s terms. This communication is in of itself valuable because it creates an expectation of what the parties agree to be legal, at minimum, even if Wizards were to challenge pretty clear language and precedent regarding 17 U.S.C. § 102(b). To this end, for the past 23 years, many content creators have read this OGL, and followed the OGL, with an expectation that they would not have to fear retaliation from Wizards.

If a licensee actually gave up rights to have assurance that Wizards would not sue them, this could indicate why there has been a significant amount of community backlash in the D&D gaming space, because now there is a real fear that Wizards will change the deal. In a sense, the mere act of bringing a lawsuit, or threatening one, in the real world can be very costly, and if one agreed to the license just to avoid this whole mess, in a sense the damage has already been done. However, how realistic is litigation, and how likely would Wizards be to win? As explained in the next section, Wizards has weak legal footing to revoke the license unilaterally.

If I relied on the OGL 1.0a for a prior edition, do I have to worry about it being taken away?

The key language in the OGL 1.0a is located in Paragraph 9. It allows for updates to the license, and maintains that any “authorized” version of the License can be used to “copy, modify, and distribute any Open Game Content originally distributed under any version of this License.” Some may point to the grant of the license as “perpetual” as having legal importance as well, but perpetual generally has to do with the length of term, not the revocability; certainly that is the current trend in the law. Revocability, however, does not prevent a party from breaching the contract. Thus, to that end, Paragraph 9 and what constitutes authorized versions of the license becomes the key language.

Paragraph 9 reads: “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.” Broadly, there are two possible readings of the authorization language. Reading A is that is that once there was content “originally distributed” under the license, as long as the license was authorized, it remains backwards compatible. Reading B is that Wizards gets to define whether the license is authorized or not, and you lose the right to distribute content once a license becomes unauthorized.

There are two ways to sort this out. One is a plain reading, which in my view would support Reading A. If that is ambiguous, we take door number two, in which courts, especially those in California, will allow the use of parol evidence, in other words, outside evidence that can shed light on how to understand a contract. This can include the parties’ negotiations prior to the execution of a contract, or what is known as “course of performance.”

“Course of Performance” has particular importance in the case at hand, because Wizards and its licensees under OGL 1.0a have been operating with this OGL for 23 years. That is an incredibly long amount of time in the world of contract law, and it leads to significant reliance from licensees on Wizards. This reliance can take the form of enormous time and money investments by third parties hoping to make money within the safe harbor provided by OGL 1.0a. By removing it, it could threaten to upend and cause tremendous harm to these third parties.

It should also be noted that there is a principle in contract law that if there is ambiguity in a contract, if it was clearly prepared by one party (a unilateral contract as in this case), the ambiguity should be decided against the drafter. This goes against Wizards as well.

Another argument that could be made, which I would imagine is one Wizards would be afraid of running afoul of, is that he OGL 1.0a was never a contract at all because of lack of consideration. Contracts require an exchange of value in addition to an offer and acceptance, and, as I’ve noted previously, you appear to really be getting material you already have a right to as part of the license, as game mechanics are not protected. What this would do is highlight to the world at large that anyone can basically take the D&D system wholesale, with a judgment to that effect readily available for anyone to use against Wizards and expand the amount that could be used beyond the narrow scope of the mechanics to anything unprotected by copyright or trademark or otherwise allowed under fair use. To that end, Wizards is playing a dangerous game if they do choose to torpedo the OGL retrospectively.

Thus, overall, my view is that there are strong arguments against Wizards choosing to retroactively change the OGL 1.0a for anyone who has already made a deal under it. This would allow for continued use of the limited set of intellectual property granted as part of the OGL, should it become necessary to argue the issue in court. Likewise, there is a wide latitude to make expressive, creative alterations that would not mechanically impact games or other materials that had used the License, that would bring it out of the scope of material that Wizards can claim to own. Thus, there are two clear methods to continue operating. By altering the materials to only use public domain materials like game mechanics, one probably greater avoid a legal battle with Wizards. And if that fails, or if it not something a party wants to do, there are strong contractual arguments in favor of the status quo and what the parties believed they were agreeing to for the past twenty-three years.

Moving forward, businesses that want to operate in competition with, or in harmony with, Dungeons and Dragons, or any other system, however, should consider eschewing a corporate license in its entirety. As noted before, though not explained in detail in this article, there are other, potentially strong arguments for using the system or even protected materials, depending on your specific circumstances and the facts of the case. In these circumstances, of course, it would be wise to contact a lawyer to understand the risks as well as the scope of what would be allowed. This of course is why the corporate license was created in the first place, but as Wizards has shown, when the main benefit is to avoid being sued, there’s never any guarantee regardless of how seemingly clear and harmonious a license scheme may be, in the long run. Unfortunately, disputes can arise under any circumstance, as perspectives can change, especially within companies, and many executives believe that truth, like beauty, is in the eye of the beholder.

Tim Lamoureux is a graduate of Harvard Law School and has been an attorney with a robust intellectual property practice since 2014. He started playing RPGs in 1993 with classics such as the Final Fantasy series, Phantasy Star, Daggerfall, Baldur’s Gate, and, of course, D&D among others. Currently Tim Lamoureux is counsel at Brown Neri Smith & Khan LLP located in Los Angeles and Orange County who both litigates and drafts contracts involving all areas of entertainment.

This article is for informational purposes only and should not be construed as legal advice. Every case has its own facts that can lead to widely different conclusions, and should you be concerned about licenses, fair use, or any other topics covered in this article, you should contact a licensed attorney. In addition, laws in the United States can vary by state, and this article was written primarily with California law in mind. Laws also vary by country, and you should contact a lawyer within your jurisdiction should you require help.