From: [t--o--a] at [uiuc.edu] (TJ Sowa)
Newsgroups: rec.games.frp.dnd
Subject: Essay:  Fair Use Law and TSR Copyrights (2/2)
Date: 28 Oct 1995 04:25:54 GMT

Preface:

The following is part 2 of 2 parts of a paper I wrote as an 
independent study project in my final semester of study at 
the University of Illinois College of Law.  (Yes, I got a 
good grade for it, an A, to be precise.)  As such, it is a 
piece of student scholarship, not legal advice.  However, 
in conjunction with the editorial and moral support of 
James Vassilakos, I submit my work for the sake of debate.

It is, of course, copyrighted material.  Any individual human user
may use and reproduce this work for noncommercial, personal use,
including dissemination over the Internet.  A corporation and any
other legal entity not of the flesh and the blood is expressly
excluded from this license.  Public dissemination other than via
the Internet requires my express consent, which is hereby withheld
for uses other than the above-mentioned.

I hope you find it provocative.

===============================================================================


                  Swords, Sorcery & Greed in Cyberspace     

             The Great TSR Copyright Scandal on the Internet     

                                   by      

                             Timothy J. Sowa     
                         [t--o--a] at [students.uiuc.edu]

                         Copyright (c) May, 1995

===============================================================================


         (d) Campbell v. Acuff-Rose Music, Inc.

Most recently, the Supreme Court applied the fair use doctrine in the context
of 2 Live Crew's rap parody of Roy Orbison's copyrighted song, "Oh, Pretty
Woman." [n.106: Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. 1164 (1994).]  2
Live Crew took the signature musical motif of Orbison's song, the electric
guitar theme interspersed at the beginning and throughout "Oh, Pretty Woman."
[n.107: Id. at 1168.]  Roy Orbison penned such lines as:

              Pretty Woman, walking down the street,
              Pretty Woman, the kind I like to meet,
              Pretty Woman, I don't believe you, you're not the truth,
              No one could look as good as you
              Mercy
              Pretty Woman, won't you pardon me,
              Pretty Woman, I couldn't help but see,
              Pretty Woman, that you look lovely as can be
              Are you lonely just like me? [n. Id. app. A.]

In response, Luther Campbell wrote for 2 Live Crew:

              Pretty woman walkin' down the street
              Pretty woman girl you look so sweet
              Pretty woman you bring me down to that knee
              Pretty woman you make me wanna beg please
              Oh, pretty woman
              Big hairy woman you need to shave that stuff
              Big hairy woman you know I bet it's tough
              Big hairy woman all that hair it ain't legit
              'Cause you look like "Cousin It" [n.109: Id. app. B.]

Representatives of 2 Live Crew offered to pay for a license, but the agent for
Acuff-Rose refused. [n.110: Id. at 1168.]  Campbell and the rest of 2 Live Crew
went ahead anyway, published the song, and sold nearly 250,000 of the records
that contained their "Pretty Woman" parody. [n.111: Id.]  Acuff-Rose sued for
copyright infringement, and Campbell claimed the parody as fair use. [n.112:
Id.]

When Justice Souter wrote the opinion for the Court, he emphasized the
legacy of jurisprudence established over 150 years ago by Justice Story in
Folsum v. Marsh. [n.113: See, e.g., id. at 1170 (citing and analyzing Folsum v.
Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841) (No. 4901)). ]  Justice Souter refined
the Supreme Court's prior case law on fair use as first laid forth in Sony
Corp. of America v. Universal City Studios, Inc. [n.114: See supra notes 63
through 81 and accompanying text.]  He went back to the roots of the fair use
doctrine in America, all the way back to Folsum v. Marsh in order to modify the
Supreme Court's holding in Sony.  In particular, Campbell modifies the first
factor of the fair use doctrine as applied in Sony.  Justice Souter harkened
back to Justice Story's holding in Folsum v. Marsh that the purpose and
character of the use should "supersede" the copyrighted material used. [n.115:
Campbell, 114 S.Ct. at 1170 (quoting Folsum v. Marsh, 9 F. Cas. at 348).] 
Justice Souter equated a work that supersedes another as "transformative":

     Although such transformative use is not absolutely necessary for a
     finding of fair use, the goal of copyright, to promote science and
     the arts, is generally furthered by the creation of transformative
     works.  Such works thus lie at the heart of the fair use doctrine's
     guarantee of breathing space within the confines of copyright, and
     the more transformative the new work, the less will be the
     significance of other factors, like commercialism, that may weigh
     against a finding of fair use. [n.116: Id. (citations omitted).]

If any doubted this holding superseded Sony, Justice Souter made certain to
cite Justice Blackmun's dissent in Sony when he spoke of transformative works
as "at the heart of" "breathing space" from copyright. [n.117: Id. (citing Sony
Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 478-80 (1984)
(Blackmun, J., dissenting)).]  Justice Blackmun, at that point in his dissent
to Sony, argued that valid fair uses should only count favorably as a
noncommercial use if also a productive use. [n.118: Sony, 464 U.S. at 478-80.] 
Justice Souter in Campbell restored productiveness as a requirement for
noncommercial uses to win favorable treatment under the first factor of the
fair use doctrine.

Unsurprisingly, Justice Souter found 2 Live Crew's parody transformative of Roy
Orbison's "Oh, Pretty Woman" song. [n.119: Campbell, 114 S.Ct. at 1173. 
Justice Souter, in a rather tragicomic display of why legal professionals
should not perform "literary" criticism in public, characterized 2 Live Crew's
parody as follows:

     While we might not assign a high rank to the parodic element here,
     we think it fair to say that 2 Live Crew's song reasonably could be
     perceived as commenting on the original or criticizing it, to some
     degree.  2 Live Crew juxtaposes the romantic musings of a man whose
     fantasy comes true, with degrading taunts, a bawdy demand for sex,
     and a sigh of relief from paternal responsibility.  The later words
     can be taken as a comment on the naivete of the original of an
     earlier day, as a rejection of its sentiment that ignores the
     ugliness of street life and the debasement that it signifies.  It
     is this joinder of reference and ridicule that marks off the
     author's choice of parody from the other types of comment and
     criticism that traditionally have had a claim to fair use
     protection as transformative works.

Id.]  Justice Souter in Campbell also clarified the countervailing effect of
commercial uses as disfavored by the fair use doctrine. Campbell affirms the
disfavored status of commercial uses, but tempers the status of commercial uses
to leave the possibility open that a commercial use need not always mean an
unfair use. [n.120: Id. at 1173-74.]  For example, 2 Live Crew's commercial use
of "Oh, Pretty Woman" as a parody ultimately did not count against them in
Campbell. [n.121: Id.]

Justice Souter again conjured up Folsum v. Marsh to analyze the second and
third factors of the fair use doctrine.  He granted Orbison's song its wider
scope of copyright protection as a creative work, as justified by the public
policies inherent in copyright law. [n.122: Id. at 1175 (citing Folsum v.
Marsh, 9 F. Cas. at 348).]  He admitted the quality of the material used
matters, as well as the quantity, but he stressed that parody by nature must
incorporate the most characteristic elements of the material parodied for the
sake of comedic effect.  Else, the audience might not realize the nature of the
work as a parody, e.g. who or what is the subject of the parody. [n.123: Id. at
1175-76 (citing Folsum v. Marsh, 9 F. Cas. at 348).]  The function of the fair
use dictated the amount necessary for the use.

Similarly, parody can have the natural effect of hurting the market value of
the work parodied.  "[W]hen a lethal parody, like a scathing theater review,
kills demand for the original, it does not produce a harm cognizable under the
Copyright Act." [n.124: Id. at 1178.]  Campbell establishes a dichotomy between
the market for the original work, including for example a nonparody rap
derivative, and the market for parodies of the original.  2 Live Crew effected
a market for a parody of "Oh, Pretty Woman," but the parody incurred no
substantial harm cognizable under the fair use doctrine. [n.125: Id.]  In sum,
Luther Campbell and his fellow band members stood vindicated by their fair
parody of Roy Orbison's song "Oh, Pretty Woman." [n.126: Id. at 1179.]

      2.  Applicable Lower Federal Court Fair Use Jurisprudence

As the above-mentioned United States Supreme Court cases demonstrate, the fair
use doctrine applies on a case-by-case basis. [n.127: Id. at 1170 (eschewing
simplistic bright-line rules in favor of a case-by-case analysis).]  Before we
look specifically at the fair use doctrine as applied to the TSR copyright
controversy, let us examine further applicable jurisprudence from lower federal
courts.  Users of D&D materials, such as those who seek to post character
sheets on the Internet, clearly engage in productive yet noncommercial speech. 
Those who take D&D rules and terminology to represent a fictional character of
their own creation transform the "accounting rules" of the copyrighted D&D
system into a living, breathing citizen of cyberspace.  Our inquiry narrows to
exclude those cases more concerned with commercial speech issues, or ones
focused on noncommercial but nonproductive uses.  We need not decide the
contest between Campbell and Sony on whether passively consumptive uses merit
protection under the fair use doctrine.

The fair use factors listed in s. 107 of the Copyright Act are not the
exclusive factors to consider in fair use cases. [n.128: House Report, supra
note 55, at 65-66.  All four factors, however, must be considered at a minimum. 
17 U.S.C. s. 107 (1992) ("the factors to be considered _shall_ include")
(emphasis added).]  The public's interest, for example, lurks beneath all
copyright issues as a factor to consider. [n.129: See, e.g., The Federalist,
supra note 2 and accompanying text.]  "The scope of the fair use doctrine is
wider when the use relates to issues of public concern." [n.130: National Rifle
Ass'n of America v. Handgun Control Fed'n, 15 F.3d 559, 562 (6th Cir. 1994)
(finding the unauthorized publication by the Handgun Control Federation of an
NRA mailing list of legislators to be a fair use).]  The most obvious public
interest, and the one most relevant for posters on the Internet, is First
Amendment free speech concerns. [n.131: See, e.g., id. (holding First Amendment
concerns too great to disallow defendant's publication of plaintiff's
legislative mailing list).]  Of course, the United States Supreme Court case of
Harper & Row, Publishers, Inc. v. Nation Enterprises involved First Amendment
issues. [n.132: See supra notes 86 through 94 and accompanying text.]  The
Court dismissed the First Amendment claims of supposed news reporting as a
cloak for egregious behaviour that went beyond the pale of the First Amendment.
[n.133: Id. ]  Justice O'Connor made sure, however, to stress in Harper & Row
the important and complementary interplay between the First Amendment and
copyright law.  "In our haste to disseminate news, it should not be forgotten
that the Framers intended copyright itself to be the engine of free
expression." [n.134: Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S.
539, 558 (1985).  Justice O'Connor is correct as to the Framers' intent, yet it
is an historical irony that the Framers chose copyright as one method to insure
lively public debate.  Copyright in common-law jurisdictions began as a royal
attempt to muzzle the impertinent voices of the great unwashed, i.e. the
Protestant Reformation.  William F. Patry, Latman's The Copyright Law 2-5
(1986).]  First Amendment concerns remain valid in a copyright issue such as
the fair use doctrine.

         (a)  Twin Peaks Productions, Inc. v. Publications International, Ltd.

In Twin Peaks Productions, Inc. v. Publications International, Ltd., the United
States Court of Appeals for the Second Circuit held the fair use doctrine
includes all First Amendment claims. [n.135: Twin Peaks Prods., Inc. v.
Publications Int'l, Ltd., 996 F.2d 1366, 1378 (2d Cir. 1993).]  The defendants
in Twin Peaks Productions, Publications International et al., published
detailed summaries of plots and episodes from the popular television series
Twin Peaks. [n.136: Id. at 1370-71.]  The defendants sought to claim First
Amendment protections beyond those granted by the fair use doctrine. [n.137:
Id. at 1378.]  The Second Circuit rejected this defense and held the defendants
liable for copyright infringement. [n.138: Id. at 1383.]  One cannot assert a
First Amendment claim to avoid copyright infringement without asserting a fair
use defense; they are inseparably bound.

         (b)  National Rifle Ass'n of America v. Handgun Control Federation

The United States Court of Appeals for the Sixth Circuit found First Amendment
concerns the overriding issue in the fair use case of National Rifle Ass'n of
America v. Handgun Control Federation. [n.139: 15 F.3d 559 (6th Cir. 1994).] 
The National Rifle Association (NRA) maintained a mailing list of legislators
whom the NRA and NRA members lobbied over gun-control issues. The Handgun
Control Federation (HCF) photocopied the NRA mailing list and sent it as part
of an HCF newsletter. [n.140: Id. at 560.]  When the NRA sued, the HCF claimed
fair use as a defense. [n.141: Id.]  The Sixth Circuit stated, "We have no
hesitation in finding a fair use here.... The document was used primarily in
exercising HCF's First Amendment speech rights to comment on public issues and
to petition the government regarding legislation." [n.142: Id. at 561-62.] 
First Amendment concerns predominated the Sixth Circuit's fair use analysis.

   D.  TSR's Copyrights & the Fair Use Doctrine

The First Amendment deeply concerns those who post D&D player character
sheets on the Internet.  Creators of D&D characters often feel as strong an
identification with and sense of pride in their work as a sculptor, painter or
novelist. Naturally, they want to show their creations to others so that their
characters can enter new worlds.  It is the joy of publication in a remarkably
intimate context.  In an RPG, the characters are not merely perceived from the
passive perspective of an audience or the reader of a book.  The players or the
DM actively perform the roles of the characters.  To have others perform that
same role and fulfill the persona of a character of ones own creation creates a
unique bond between the creator and the role-player.  It is a community of
playwrights and actors without pretense set in a world of the fantastic and the
divine.

      1.  The Purpose and Character of the Use of D&D

TSR seeks to regulate this community on its own terms.  By force of dominant
market share, D&D occupies a central place in the role-playing community.  The
"purpose and character of the use" of D&D is to create improvisational theatre
in the fantasy genre. [n.143: 17 U.S.C. s. 107(1) (1992).]  The whole point is
to be creative, to play out roles, to imagine the extraordinary in exact
detail.  Players create character sheets for two primary reasons.  First, they
want to create a character who they personally will play in a game.  Second,
players create non-player characters (NPCs), typically played out by the DM. 
For either purpose, players draw on the terminology of D&D and work within the
rules provided to represent a character.  An NPC character sheet might
incorporate just a few D&D terms, such as a rough sketch quickly drawn in the
heat of a bloody random encounter.  A character sheet used by a player
character generally has more detail, and thus more D&D terminology.  No matter
the specific context of the use, D&D players create character sheets to
transform a bunch of rules and abstract concepts into a living, breathing
citizen of cyberspace.

      2.  The Nature of D&D as a Copyrighted Work

Up to this point, we have considered D&D as a system, as a set of rules to
account for and to represent an alternate reality.  We have noted how D&D can
incorporate other intellectual property, such as a mythological character, into
D&D as a derivative work.  Nevertheless, TSR claims extend to the derivative
D&D terminology used to represent other non-TSR works, not to the substantive
original works themselves.  In addition to the systemic components of D&D (the
rules of the game), TSR has substantial copyright claims over fictional works
created in association with the D&D system.  For example, magic-users of high
level can cast a spell called Otto's Irresistible Dance that can force a goblin
or such like to dance a jig in the middle of battle. [n.144: PH, supra note 8,
at 90.  Some DMs might require a player whose character falls victim to this
spell actually to stand up and perform a brief rendition of the jig for
dramatic effect.]  Both the systemic terms used to describe the spell and the
substantive, or fictional, components of the spell have copyright protection,
but the scope of protection differs for factual versus fictional works, or, for
the systemic D&D terms as opposed to the associated substantive creations of
D&D. [n.145: Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. 1164, 1175 (1994).]

         (a) Systemic D&D Terminology

Those who post to the Internet might use both systemic and substantive D&D
material.  For example, a player character sheet for a powerful magic-user
would include a high intelligence score of perhaps eighteen (roughly equivalent
to an IQ of 180). [n.146: DMG, supra note 6, at 10.]  To speak of an eighteen
intelligence score is to use systemic D&D terminology.  The character sheet
also would list the names of spells which the magic-user possessed, such as
Otto's Irresistible Dance.  That listing would invoke substantive D&D
copyrights.  We must keep this distinction between systemic terms and
substantive works in mind.  The systemic D&D terms, mere game rules, merit
little if any protection under copyright law.  At most, systemic terms qualify
for the lesser scope of protection given to factual works. [n.147: Harper &
Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 563 (1985); see also
Narell v. Freeman, 872 F.2d 907 (9th Cir. 1989).]

         (b) Substantive D&D Works

In contrast, substantive D&D copyrights are creative, fictional works and merit
greater protection. [n.148: Campbell, 114 S.Ct.at 1175.]  TSR publishes a
multitude of supplements to the basic D&D game system.  Some supplements are
called modules, prepackaged adventures complete with maps of dungeons and
drawings of dragons encountered.  Other supplements feature ready-made worlds. 
DMs can take a group of players through an adventure module, often set in the
context of a particular world.  Each module and world will contain maps,
specific monsters and characters who occupy the places described, and personal,
national or global histories.  Players might have a character who has a base of
operations in the City of Waterdeep in the Forgotten Realms world. [n.149: Ed
Greenwood, Waterdeep and the North (1987)  (hereinafter Waterdeep).]  A
character sheet posted on the Internet might include a description of the
character's home or business, complete with street address.  The history of the
character might well include references to the character's relationship or
encounters with figures described in the Forgotten Realms.  References to
substantive D&D works are inevitable and inextricably intertwined within the
D&D RPG system.  One would look up the street address of the posted character
on the map of Waterdeep, or read about one of the Lords of Waterdeep to learn
more about with whom the character has interacted in the past. [n.150: Id.]

         (c) The Functional Nature of D&D

The systemic and substantive aspects of D&D form a cohesive whole with a single
overriding purpose: to enable people to create and play roles in an imaginary
setting.  The function of D&D is the most important issue in the entire
analysis. D&D is not in essence a book to be passively consumed.  D&D is
designed and implemented to _create_:

     As the creator and ultimate authority in your respective game,
     this work is written as one Dungeon Master equal to another.
     Pronouncements there may be, but they are not from "on high" as
     respects _your_ game.... The material is herein, but only you can
     construct the masterpiece from it, your personal campaign which
     will bring hundreds of hours of fun and excitement to many eager
     players.  Masterful dungeoning to you!
                         [n.151: DMG, supra note 6, at 7-8 (preface).]

In a way, the crux of the debate between TSR and its customers comes down to
the extent to which D&D allows players to use their creations.  TSR does not
deny the function of D&D as a creative system, i.e. that D&D is a role-playing
game.  TSR even gives permission for players to photocopy blank preprinted
character sheets published by TSR, such as ones specially adapted for a
Forgotten Realms campaign. [n.152: Scott Haring, Empires of the Sands 27
(1987).]  TSR, however, expressly restricts the use of blank character sheet
photocopies to personal use. [n.153: Id. at 2.]  Similarly, TSR claims D&D
itself is restricted solely to personal use. [n.154: TSR, supra note 3.]

While players might not object to an explicit personal-use restriction on
photocopies of a blank character sheet, they object strenuously to the claim
that TSR has control over their own creations.  The debate echoes Sony and
Campbell over notions of productive, transformative uses versus passive,
consumptive uses. [n.156: See supra text accompanying note 118.]  Player
character sheets, and the other creations commonly posted on the Internet, are
transformative uses analogous to the parody of "Oh, Pretty Woman" in Campbell.
[n.157: Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. 1164 (1994).]  To
photocopy a blank character sheet for ones personal use is more like VCR owners
timeshifting television programs for later viewing in Sony. [n.158: Sony Corp.
of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).]  Further, the
functional nature of parody required the use of a significant amount of the
copyrighted subject. [n.159: Campbell, 114 S.Ct. at 1176.]  Similarly, the
functional nature of D&D requires a player to use D&D material.

TSR seeks arbitrarily to restrict the scope of the audience of a player's
creations.  A player can share a character sheet with fellow players, but can
groups of players get together and make a folder of a couple of dozen
characters shared among a small community of groups of players?  Is that still
personal use?  Perhaps one can only do so if all the groups of players who
contribute to the folder are related to each other, no matter how distantly. 
If players can share a folder among a few groups, can players post sheets on a
bulletin board (for free) at the local hobby shop? If they can, what about on
the local bulletin-board system run by a hobbyist out of a house on a personal
computer?  The slippery slope runs all the way around the world, on the
Internet.  That local bulletin-board system operator might or might not have a
connection to the Internet, if only for e-mail.

We can think of fair use in this context as a sort of _implied_license_of_
reasonable_use_.  The functional nature of D&D includes the condition and
the right that players can use the RPG reasonably, without the explicit consent
of TSR. Players can create derivative works, obviously for their own use, but
also to share, to a reasonable extent, among fellow players.  The word
reasonable is so ubiquitous and amorphous in the law that it adds nothing to
determine the scope of the use, but our perspective on the issue has changed. 
Rather than wonder how much TSR can or cannot permit players to play D&D, we
have changed our focus to consider the justness of the players' behavior.  To
worry about how much TSR can dictate how players use its game leads to the
vagaries of contracts too long and detailed to matter, not to mention questions
of unconscionability. [n.160: In comparison, another commentator has stated,
"Tensions between contract law and copyright law deserve continued attention.
The question of whether fair use can be contracted around is of great
significance in a networked environment where licenses rather than purchases 
are the methods of transaction."  Deborah Reilly, The National Information
Infrastructure and Copyright: Intersections and Tensions, 76 J. Pat. &
Trademark Off. Soc'y 903 (1994).]

Reasonable use of D&D does not include players who band together, form a
corporation, and compete in the marketplace for commercial D&D products.  The
emphasis goes to how much can players share their creations.  The question
presented does not extend to for-profit uses.  The functional nature of D&D
specifically enables players to create and share their creations.  So long
as players merely _share_ their creations among each other without regard to
money, the question narrows to whether players ever can share noncommercially
in a way inconsistent with this implied license of reasonable (or fair) use.

      3.  The Substantiality of the Amount of D&D Works Used

D&D is a huge mass of copyrighted works that extend back for some two
decades.  TSR has published hundreds of adventure modules, dozens of worlds and
supplements for particular worlds, [n.161: See, e.g., Waterdeep, supra note
149.] not to mention a variety of tomes that deal with the rules and other
issues of special reference. [n.162: See, e.g., Fiend Folio (Don Turnbull ed.,
1981).]  Of course, in this modern age of spin-off businesses, TSR also has
associated copyrighted works under its control, such as a number of series of
D&D novels, software, and miscellaneous other D&D paraphernalia. [n.163: E.g.
Dragon; this is a periodical devoted to D&D and other TSR products.  It is one
of the few spin-offs to which players might cite for a new spell, class,
or monster that appears in a particular issue. Id.]  These spin-offs, at least,
generally do not get involved in works such as character sheets created through
the D&D system.  Even without regard to spin-off copyrights, the vast bulk of
the copyrighted material used remains little diminished in size.

Compared to this vast amount of D&D material, a character sheet uses relatively
little.  On the other hand, the very nature of D&D as an RPG means that
character sheets incorporate the key terms, the most "quality-laden" aspects of
D&D.  To complicate matters, these systemically key terms receive the least
protection as factual game rules.  On the other hand, the substantive creative
components of D&D, such as a monster or a spell unique to D&D, might only occur
as a passing reference.  For example, a magic-user who can cast Otto's
Irresistible Dance might also have a familiar, [n.164: "familiar . . . a spirit
often embodied in an animal and held to attend and serve or guard a person." 
Webster's Ninth New Collegiate Dictionary 447 (Merriam-Webster 1984)] such as a
pseudo-dragon.  A pseudo-dragon is an elusive, small creature with peculiar
magical powers that looks remarkably like a miniature dragon. [n.165: Gary
Gygax, Monster Manual 79 (4th Ed. 1978).]  A character sheet might list a
pseudo-dragon under a heading such as "Associates" or "Possessions."  This
magic-user's character sheet then would have a passing reference to Otto's
Irresistible Dance and to a pseudo-dragon, yet to refer to these creations
simply by name does not invoke as much of the substantive quality of the
creations as does a key systemic term.  As a whole, for both systemic terms and
substantive works of D&D, the quantity of D&D material used is low, but the
quality of the material is not insignificant.

      4.  The Market Effect on D&D of Noncommercial Sharing

To determine the effect of Internet posts about D&D on the market for D&D
requires us to define the scope of the market for D&D products and their
derivatives.  The market includes both possible present harm as well as future
harm. [n.166: Sony Corp. of America v. Universal City Studios, Inc., 464 U.S.
417, 451-52 (1984).]  The market includes not only current products, but also
future derivative products. [n.167: Campbell, 114 S.Ct. at 1177-78.]  On the
other hand, the market does not include works not cognizable by copyright law.
[n.168: Id. at 1178.]  Furthermore, noncommercial works create a presumption of
no harm. [n.169: See supra text accompanying note 75.]  Plaintiffs who assert
copyright infringement must meet their burden to prove present or prospective
harm. [n.170: Id.]

One can argue back and forth whether or not noncommercial, nonprofessional
works created by hobbyists at home can or will displace the market for
commercially published D&D products.  Perhaps some market effect might occur,
but TSR would have to prove more than de minimis harm. [n.171: Sony, 464 U.S.
at 454.]  In addition, a reasonable use of D&D material includes creating
characters from scratch for ones own personal use. [n.172: DMG, supra note 6,
at 11-12.]  According to the reasoning TSR might employ, this use also would
impinge on TSR's market, yet not even TSR claims players cannot create
characters for themselves.  The reasonable use of TSR's copyrights also defines
and limits the extent of TSR's market, just as legitimate parody does not fall
within the scope of its victim's market. [n.173: Campbell, 114 S.Ct. at
1177-78.]

      5.  The Public's Interest in Artistic Freedom

Finally, the public's First Amendment interests caution against any undue prior
restraint of the artistic freedom of D&D players to share their creations.  The
purposes of the copyright and free speech portions of the United States
Constitution are complementary, not in inevitable tension.  "The public good
fully coincides... with the claims of individuals." [n.174: The Federalist,
supra note 2.]  The First Amendment informs the scope of the fair use doctrine. 
The First Amendment rights of D&D players coexist mutually with TSR's
copyrights.  The seeming tension arises only when one or both sides of a
dispute assert rights not in accordance with the "built-in" complementarity of
the First Amendment and copyright law.  For example, The Nation magazine in
Harper & Row claimed freedom of the press rights under the First Amendment
allowed it to publish pieces of Ford's illicitly obtained memoirs. [n.175:
Harper & Row, 471 U.S. at 557.]  The Supreme Court rejected this defense.
[n.176: Id.]  The tension in the dispute arose when Nation Enterprises
erroneously asserted the First Amendment to justify its actions, not from an
inherent tension between free speech rights and copyrights.

Like the fair use doctrine, [n.177: See, e.g., Roger L. Zissu, Fair Use: From
Harper & Row to Acuff-Rose, 42 J. Copyright Soc'y U.S.A., Fall 1994, at 7, 7. 
"Any discussion of fair use immediately brings us to the core of copyright and
its fundamental purpose under the Constitution."] First Amendment law favors
noncommercial speech. [n.178: See, e.g., Metromedia, Inc. v. City of San Diego,
453 U.S. 490, 514-15 (1981).]  The artistic freedom of D&D players to share
their works noncommercially on the Internet falls squarely within these
traditional concerns to protect free speech.  Without any profit motive to
fight attempts to muzzle the speech, noncommercial speech is especially
susceptible to the chilling effects of scare tactics such as those employed by
TSR. [n.179: Id.]  People simply do not have the funds to assert their First
Amendment rights in court.  Worse, traditional civil rights groups normally
focus on governmental attempts to stifle speech.  TSR might have more resources
than many Third World governments, but civil rights groups traditionally focus
on institutions with armies of soldiers to enforce their dictates, rather than
an organization like TSR with an army of lawyers.  TSR efficiently muzzled the
artistic freedom of authors around the world.

IV.  Resolved: D&D Players Can Share Their Works on the Internet

Players use D&D to create derivative works.  That is the nature of D&D as a
work, to enable its users to create further works derivative of the original. 
Players might use a small quantity of the systemic terms and substantive works
which make up D&D, but what they use is not insignificant parts of D&D.  The
market effect of players noncommercial works is uncertain.  TSR would have to
prove present or future harm, and the nature of D&D as an RPG system
circumscribes the scope of TSR's market to exclude a certain amount of the
market from the calculus of harm; players can share their works to a certain
extent, the only question is if a limit exists to this sharing, and if so, how
much can players share.

The fair use doctrine can be thought of as an implied license of reasonable
use. Traditional concerns that fall inside the First Amendment, such as
artistic freedom, strongly indicate reasonable use.  The transformative nature
of the use indicates reasonable use.  The noncommercial nature of players'
works indicates reasonable use.  The functional nature of D&D as an RPG, as a
creative system, indicates reasonable use.  The small quantity of material used
indicates reasonable use.  The uncertain effect of noncommercial works on TSR's
market, and TSR's burden to prove harm, indicate reasonable use.  On the other
hand, players use key aspects of D&D copyrights.  Also, the Internet is a wide
community that spans Earth.  "The fortunes of the law of copyright have always
been closely connected with freedom of expression, on the one hand, and with
technological improvements in means of dissemination, on the other." [n.180:
Kaplan, supra note 49, at vii.]  The wide dispersal of the--albeit
noncommercial--works does not indicate in favor of a reasonable use.

Not all of the factors need point in one direction or another.  The factors
overwhelmingly predominate to favor the artistic freedom of players who wish to
share their works.  The crucial factor is the nature of D&D as a work.  An RPG
is a system whose very function requires, encourages, and enables its players
to create derivative works. The noncommercial, transformative nature of the
players' use reinforces this point.  Finally, the First Amendment provides a
final basis to resolve the debate in favor of the players.  Those who provide
us with the tools to communicate ought not have control over to whom we speak.

V.   Conclusion

TSR's behavior is scandalous.  It knows full well players do not have the
resources to match its own in a court of law.  It knows both players and
Internet site operators will capitulate under the duress of a threatened
lawsuit.  It knows the fair use doctrine is an expensive defense to assert in a
copyright infringement action. [n.181: Also, "the fair use doctrine stands as
one of the few defenses to the sweeping rights that Congress has granted to
copyright holders."  The Supreme Court, 1993 Term, 108 Harv. L. Rev. 331, 331
(1994).]  As a mixed question of fact and law, [n.182: Arica Inst., Inc. v.
Palmer, 970 F.2d 1067, 1077 (2d Cir. 1992)] with unpredictable results at the
end, one can never rest assured ones rights can be vindicated.  Who, pray tell,
will come to the rescue of these players who seek to share the joy and good
fellowship of a simple game?  TSR's actions are the kind of behavior that give
lawyers and the American justice system a vile name.  The players may have
right on their side, but they cannot afford to pay the steep price of admission
to our halls of justice.  Unfortunately, we cannot say players who wish to
speak freely on the Internet will "live happily ever after."