From: [a--r--y] at [anet-chi.com] (Aardy R. DeVarque)
Newsgroups: rec.games.frp.advocacy,rec.games.frp.dnd,rec.games.frp.gurps,rec.games.frp.misc
Subject: FAQ: TSR & Copyright (was: Re: Truth in business - Part 1 of 3)
Date: Thu, 19 Dec 1996 17:20:21 GMT
COPYRIGHT & TSR
Written by Joel A. Hahn
Version: Beta
Last changed: 08/11/96
[Disclaimer: I am not a lawyer, and none of this should be taken as hard
and fast legal advice. See an attorney for that. Nor am I affiliated with
TSR in any way.]
Since August of 1994, TSR has been enforcing a company policy about
what sort of AD&D material is and is not allowed on the Internet, based
on copyright law (Title 17 of the U.S. Code [referred to here as 17 USC],
as well as the Berne Convention For the Protection Of Literary And
Artistic Works (referred to here as Berne) and other copyright-related
treaties) and trademark law. For information on Trademarks & TSR, see
the companion document to this one. Here is a quick thumbnail version
of TSR's copyright policy, which I will then expand upon:
1. No scans of TSR books or artwork, and no lengthy quotes of TSR's
published material may distributed without TSR's permission.
2. No game accessories that are based directly on AD&D and obviously
require AD&D for use as is may be distributed without TSR's
and the author's permission.
3. If it doesn't fall in categories 1 or 2, it can be distributed to your
heart's content in any manner available to you.
The first category is what most people think of when they hear
the term "copyright infringement"--that is, outright physical copying.
As outlined in copyright laws around the world, it is an author's right
to be the sole distributor of his material for as long as he retains
the copyright on the material.
The second category has caused the rise of numerous flames on the
net. Not by its existence, but because there is some question on
exactly what is and is not included.
This category is based on the concept of a "derivative work."
A "derivative work" is a work based upon one or more preexisting
works, such as a translation, musical arrangement, dramatization,
fictionalization, motion picture version, sound recording, art
reproduction, abridgment, condensation, or any other form in which
a work may be recast, transformed, or adapted. A work consisting
of editorial revisions, annotations, elaborations, or other
modifications, which, as a whole, represent an original work of
authorship, is a "derivative work".
--17 USC 101
That is, any work based on or derived from an existing work,
containing enough new material to be considered more than just an
outright copy, but still not wholly original. According to copyright
law, only the author may create & distribute derivative material for as
long as he retains the copyright on the original material.
Rights of an author:
An author of a copyrighted work has several exclusive rights, rights
which only the author may exercise. They are:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work
to the public by sale or other transfer of ownership, or by rental,
lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and motion pictures and other audiovisual works,
to perform the copyrighted work publically; and
(5) in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and pictorial, graphic, or sculptural works,
including the individual images of a motion picture of other
audiovisual work, to display the copyrighted work publically.
--17 USC 106
Authors of literary or artistic works shall enjoy the exclusive
right of authorizing adaptations, arrangements and other
alterations of their works.
--Berne, Article 12
International copyright:
Due to many treaties, especially the Berne Convention and the UCC,
almost every nation has a reciprocal copyright deal with the United
States and each other.
The protection of this Convention shall apply to:
* (a) authors who are nationals of one of the countries of the
Union, for their works, whether published or not;
* (b) authors who are not nationals of one of the countries of the
Union, for their works first published in one of those countries,
or simultaneously in a country outside the Union and in a country
of the Union.
--Berne, Art. 3, Sec. 1
The minimum standards set forth in that document, which each
signatory nation must fulfill in their laws, include the legal concepts
dealt with above. In other words, just because you don't live in the
United States, that doesn't mean that this doesn't apply to you--because
it does; not because United States law applies, but because these are the
standards that the Berne Convention set forth. (Note that U.S. copyright
law as a whole is barely within Berne standards; it only became a Berne
signatory nation in 1989.) Unless you live somewhere like North Korea,
your country not only has pretty much identical standards (many have more
stringent standards), but has also agreed to treat all works copyrighted
in the U.S. as if they were copyrighted in your country and to aid most
prosecution of violators of that copyright.
Exceptions to all of the above:
If you have legally purchased a copy of an author's material, you
can do whatever you like with it, including make copies and create
derivative works, as long as you keep everything to yourself. If you sell
or give a copy of any of this subsequent material to anyone, you must
either include the original and all of your other copies & derivative
works, or totally destroy everything you don't sell or give to that
person.
Example 1:
You run out and buy a copy of the Dungeon Master's Guide. However,
you find that it is difficult to keep the book open to the page you
want while running a game; also, you are concerned about getting
pizza and cola stains on your new book. To alleviate these problems,
you photocopy the book, punch all the pages, and put them in a
three-ring binder. A few years later, TSR releases a new edition of
the game. You decide to sell your old edition DMG. By law, you must
also either include the photocopies or destroy them. On the other
hand, if you had decided to sell or give away the photocopies, you
then have to either include or destroy the original.
Example 2:
After finishing reading a recent fantasy book that you bought, you
are so moved by the author's creation that you decide to sit down
right now and write a sequel. That's just fine and dandy, but you
can't give or sell a copy of your sequel to anyone without also
giving or selling the original book and your personal copy of your
sequel, or without destroying everything (e.g. the original book,
your personal copy of your sequel, etc.) that you didn't give away
or sell to that person.
If the material has passed into the public domain, anyone can do
whatever they wish to with it. Almost everything published before 1920 is
currently in the public domain, as are many things published since then.
Everything automatically passes into the public domain after a certain
amount of time. In the U.S., this is currently 75 years for most
material. No TSR books or modules are currently public domain.
If the author wishes, he can sell the copyright to someone else. The
author retains the right to be identified as the "author," but the new
owner of the copyright is the one who decides who can and cannot make
and distribute copies. TSR is not about to sell out at this point.
If the copying or creating of derivative works is done in the process
of using the original in the manner it was intended, then it is not
illegal to do so. This means that it is just fine to create supplements
for use with your campaign and use them in-game. TSR actively encourages
this, as a matter of fact. In other words, if you create a derivative
work and hand it out to your gaming group as part of your campaign, that's
perfectly ok; however, if you take that same work and put it up on a
publically accessible FTP site or web page, then you can run into trouble.
If only a tiny portion of the original is taken, or if copying or
creation of a derivative work is done, for example, for the purposes of
teaching, criticism, or discussion then it may be a "fair use."
...The fair use of a copyrighted work, including such use by
reproduction in copies of phonorecords or by any other means
specified in that section, for purposes such as criticism, comment,
news reporting, teaching (including multiple copies for classroom
use), scholarship, or research, is not an infringement of copyright.
In determining whether the use made of a work in any particular case
is a fair use the factors to be considered shall include--
(1) the purpose and character of the use, including whether such
use is of a commercial nature or is for nonprofit educational
purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation
to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value
of the copyrighted work.
--17 USC 107
It shall be permissible to make quotations from a work which has
already been lawfully made available to the public, provided that
their making is compatible with fair practice, and their extent
does not exceed that justified by the purpose, including quotations
from newspaper articles and periodicals in the form of press
summaries.
It shall be a matter for legislation in the countries of the
Union,... to permit the utilization, to the extent justified by the
purpose, of literary or artistic works... for teaching, provided
such utilization is compatible with fair practice.
Where use is made of works in accordance with the preceding
paragraphs of this Article, mention shall be made of the source,
and of the name of the author, if it appears thereon.
--Berne, Article 10
Even lawyers and judges regularly have a problem determining exactly
where the line is drawn for what is and is not fair use, though; it is
a very tricky area. In any case distribution of most user-created AD&D
accessories does not constitute fair use.
If the author wishes, he can allow others to exercise any of the
rights normally reserved only to himself (as outlined above), on whatever
terms the two sides agree to. Those terms can include whatever conditions
the author can think up.
Example:
In the music industry, it is not uncommon for shipping problems to
delay a shipment of sheet music from arriving in time for a musical
group to have enough time to practice it sufficiently before a
performance. In such situations, the conductor will usually contact
the publisher and request permission to make photocopies of the music
so the group can begin rehearsing. In many cases, the publisher will
allow this, on the condition that all such copies are collected after
each rehearsal and that all such copies are completely destroyed when
the real copies arrive. If the conductor does not agree to the
conditions, or if the publisher decides not to allow this, then the
conductor is out of luck; he'll just have to wait until the shipment
arrives.
TSR does not normally allow distribution of outright copies, though
they may make individual exceptions. This is the same for most gaming
companies.
TSR has issued a blanket permission statement allowing distribution
of derivative works via the Internet, but it counts only if you follow
their conditions. If you do not like their conditions, you either have
to change your material so that it no longer qualifies as derivative, or
be content to keep it to yourself, like the conductor in the above
example. TSR's conditions are pretty much as follows:
1. Distribution is restricted to TSR's areas on AOL and GEnie,
the ftp.mpgn.com FTP site, and any other areas that TSR may
license in the future to carry such materials.
2. The files must conform to TSR's Code of Ethics. (Basically, no
overly graphic violence, no obscenities, no graphic sex or discussion
of sex & sexual orientations, and no "real-world" religions.)
3. The files must include TSR's disclaimer, a copy of which is provided
at the various distribution sites. The disclaimer essentially
boils down to a declaration that the file can only be distributed
outside of TSR-licensed sites with permission from both TSR and the
author.
4. No restrictions are placed regarding distribution of derivative
works via Usenet or listservs/majordomos. Normal restrictions
regarding material such as scans of TSR's books & artwork still
apply.
The individual authors (in this case, companies) can put any
restrictions they desire on the distribution of derivative works, and to
my knowledge, not one has placed absolutely no restrictions on this
distribution; some just have fewer or more restrictions than others. (In
many cases, the only restriction is that the files be distributed free of
charge.)
Further distribution:
Once a file that requires the TSR disclaimer makes its way to a
licensed site, then it cannot be distributed any further except to
other licensed sites without the permission of both the author and TSR.
This means that TSR cannot take all the files in a licensed ftp site,
print them up, and publish them as "The Complete Net Handbook" without
the express permission of each and every author (unless an author
included a blanket statement of his own stating that anyone can
distribute the file in question).
Also note that if TSR, for some ungodly reason, decides to
renegotiate the licenses with each and every one of the licensed sites in
order to turn the sites into a for-pay access network, it is the author's
right to terminate his permission which allows the site to distribute his
files--the site must then delete the files or be guaranteed to lose a
lawsuit. If TSR were to try this, they would almost certainly either
a) get told where to stick it by the licensed sites, or b) end up with a
bunch of sites completely devoid of everything except files that TSR
themselves created, and which die due to the competition of the free
sites with not-quite-AD&D-but-still-compatible files that TSR has no say
in.
In addition, if an author takes a file he wrote which is currently
on a TSR-licensed site and has the disclaimer on it, and he removes all of
the material in the file that TSR is concerned about, then the "cleaned"
version of the file can be distributed however the author wishes without
any say by TSR.
For further information:
If you want to hear TSR's position on what they consider to be
"derivative works," then write to [T S RInc] at [aol.com], or go to TSR's
information page on the World Wide Web at <http://users.aol.com/tsrinc>.
If you want to hear other people's opinions, go to
<http://cs.ucr.edu/~jimv/> or ftp the file TSR_TM.ZIP from
ftp://ftp.umd.umich.edu\pub\frp\dnd, unzip the file, and run the file
TSR_TM.EXE. This latter method runs only on IBM clones. Note that
neither of these latter two resources has been updated recently--not that
the opinions contained therein have changed any, but some of the
circumstances and basic facts upon which those opinions are based may have.
For the full text of 17 USC, see the Cornell law site at
<http://www.law.cornell.edu/uscode/17/index.html>. For all of the U.S.
government's circulars which explain and elaborate on 17 USC, as well as
all the information about copyright you could ask for and more, see the
Library of Congress' information site at <http://lcweb.loc.gov/copyright>.
If you do not have World Wide Web access, but do have gopher access, try
the Library of Congress' gopher site, <gopher://marvel.loc.gov>. For the
full text of the Berne Convention, once again see the Cornell law site;
this time at <http://www.law.cornell.edu/treaties/berne/overview.html>.
Another site with links to several copyright-related pages can be
found at <http://neon.nlc.state.ne.us/libdev/cpyrgt.html>.
Some other sites/files of interest in the area of copyright:
10 Big Myths About Copyright Explained
<http://www.clari.net/brad/copymyths.html>
The Copyright FAQ
<http://www.cis.ohio-state.edu/hypertext/faq/usenet/Copyright-FAQ/top.html>
The Legal Information Institute, Cornell Law School (Copyrights)
<http://www.law.cornell.edu/topics/copyright.html>
Institute for Learning Technologies (Copyright Project)
<http://www.ilt.columbia.edu/projects/copyright/index.html>
The Copyright Website
<http://www.benedict.com/>
How to be absolutely certain that TSR will not challenge your work:
Simple. Don't write it specifically for AD&D. Write so that the
average gamer can be reasonably certain that the document is not intended
specifically and solely for use with AD&D, or isn't a story that is
patently obvious that it was written from an AD&D game session. Don't
use creatures, settings, characters, powers, descriptions and so forth
that first appeared in TSR products, and/or just don't use game terms
at all. If you're not sure, don't use it.
This does not mean that these are the only works that do not fall
within the purview of TSR's policy, as they aren't. However, as a whole,
such works definitely will not be challenged by TSR in any way, whereas
works which "push the envelope" do run that risk. If you don't mind a
little risk, then by all means, try something a little closer to the line
TSR has drawn.
***End FAQ***
[excerpts from a work-in-progress probable future addition to this FAQ:]
On the subject of all this and the uncopyrightability of "game mechanics" as
a system, TSR has essentially taken a stance that a fan writing a product in
such a way that the product can be used as is solely with AD&D has borrowed
not just ideas from their system, but part of the *expression* of those
ideas--otherwise, it'd be compatible without any changes with any of the
other systems that are very similar to AD&D.
Along with this goes TSR's idea that "Kobolds (2): AC 10; HD 1/2 [d4]; hp 3,
2; THAC0 20..." is not game mechanics, it's just another way of describing
TSR's version of kobolds, like "Drow: underground-dwelling, dark-skinned,
purple-eyed, light-haired, two-sword-weilding, extra-long infravisioned,
spider-loving, Lolth/Lloth- worshipping elves" is a way of expressing a
description of TSR's version of a creature. Cut Drow down to
"underground-dwelling elves", and it's not similar enough to TSR's material
(though "Lolth-worshipping" would probably be enough, as Lolth is a TSR
invention); cut kobolds down to "AC 10; hp 3, 2", and it's not similar
enough to TSR's material.
The latter is a specific case of the former; and it is the former which
seems to essentially be what TSR's stance on "what constitutes derivative?"
boils down to--"If it's obviously *solely* AD&D as is, then it must be a
derivative work." (not a direct quote)
Aardy R. DeVarque
Feudalism: Serf & Turf