From: [kew 5843] at [exodus.valpo.edu] (Kate the Short)
Subject: Copyright Law & AD&D(tm)
Date: 18 Nov 94 22:18:06 CDT
Organization: Valparaiso University
I am pretty much a loyal customer of TSR, as AD&D(tm) is
the role-playing game I play the most. I also like creating new
spells, creatures, etc. for the game, and trading these within my
gaming circles for use in each others' games. One of these
circles is on the Internet, and so I became quite concerned when I
saw TSR's official net.policy for ftp sites. I did some research
into copyright law, and here is the result. One copy of this was
sent to TSR, through their net.representative, Rob Repp, and
another was posted on rec.games.frp.dnd. I invite discussion on
this, preferably posted on rec.games.frp.dnd for all to see.
----------
Joel Hahn
a.k.a. Aardy R. DeVarque
Feudalism: Serf & Turf
Kate the Short's SO
===========================================================================
Copyright Law and the Creation and Distribution of
AD&D(tm)-related Materials
by Joel Hahn
Copyright 1994
(This document may be freely distributed, under the condition that
it is unaltered in any way and includes this notice. I am not,
nor do I pretend to be, a lawyer, so the following cannot be
construed as official legal advice, but is merely In My Humble
Opinion.)
TSR, Inc. recently came out with a statement, with which
I have several concerns, which declared that public distribution
of non-commercial works for use with specifically AD&D(tm) was to
be curtailed, and that the following disclaimer was required on
all AD&D(tm) materials uploaded to the MPGN ftp site, the sole
site allowed to carry AD&D(tm)-related materials:
"This item incorporates or is based on or derived from
copyrighted material of TSR, Inc. and may contain trade-
marks of TSR. The item is made available by MPGNet under
license from TSR, but is not authorized or endorsed by TSR.
The item is for personal use only and may not be published
or redistributed except through MPGNet or TSR."
At first glance, this looks like a standard disclaimer, similar
to the ones espoused by other game companies with Internet presence.
However a closer examination is in order. "This item incor-
porates...trademarks of TSR." This sentence is just fine, assuming
that the material in question actually *is* a derivative work; if
it isn't then the disclaimer isn't needed anyway. "The item is
made...license from TSR, but is not...endorsed by TSR." The
second part ("but" to "TSR") is OK, as it is perfectly true unless
TSR commissioned the work in question, and at that point, it would
no longer require this disclaimer. The first part is technically
true, but I question to ability of TSR to "make available" non-
TSR-owned works. This ties in with the last sentence, "The
item...MPGNet or TSR," is a doozy, as it states that only TSR or
MPGNet may distribute these materials, implying that TSR has some
right to the works in question. I think that this breaks copyright
law, as, according to research I have done, TSR has no right to
speak for the authors of such works and give away the authors'
rights; or even redistribute such works without the authors'
permission. What follows is my defense of my argument.
"Definitions...A 'derivative work' is a work based upon
one or more preexisting works, such as a translation,...
dramatization, fictionalization,...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.'"
(_Copyright_Law_of_the_United_States_of_America:_contained_in_
Title_17_of_the_ United_States_Code_, Rev. to March 1, 1991,
hereafter referred to as "USC," S. 101)
"A derivative work is one created by transforming or
adapting previously existing material. This includes: new
editions of previously published works,...dramatizations or
fictionalizations...based on novels, histories, biographies or
other works,...translations, and annotations, such as *Cliff's
Notes.*" (_The_Copyright_Handbook:_How_to_ Protect_and_Use_Written_
Works_, Stephen Fishman, 2nd ed., Berkeley, CA: Nolo Press, 1994,
hereafter referred to as "Fishman," p. 4/12)
I believe that the customer-created works in question, which
include, but are not limited to, original creatures, spells,
characters, weapons, magic items, adventure modules, and rules
modifications which may only be used with the AD&D(tm) game are
indeed derivative works, as they consist of something similar to
the "editorial elaborations" included in the definition of
"derivative works." Since they may not stand alone, require that
one possess the AD&D game in order to use them in their current
form, and cannot be used in other role-playing games without
revision, I consider them "derivative" of material copyrighted by
TSR, whether or not they actually quote from material published by
TSR. However, some people I have talked with do not feel that
they are derivative of TSR's material, but instead consider the
use of what small amounts of TSR's material are included in the
works in question to be a "fair use" under USC S. 107. Since it
is not completely clear-cut one way or the other, I will discuss
"fair use" later on.
A good point for a work being derivative instead of a fair
use comes from _The_Copyright_Handbook_, which states that "a work
is 'derivative' for copyright purposes only if its author has taken
a *substantial* amount of a previously existing work's
*expression*....Copyright only protects an author's expression: the
words she uses and the selection and arrangement of her material,
if original....The ideas and facts themselves are not protectible
and are therefore free for anyone to use....How much is
'substantial?' Enough so that the average intended reader of the
work would conclude that it had been adapted from or based upon
the previously existing expression" [emphases italicized in
original] (Fishman, p. 7/2). Because the works in question can
only be used with the AD&D(tm) game unless revisions are made, I
think that is an indicator that some of the original expression was
used, whether or not a direct quotation was made (which would make
it derivative in its own right). The average gamer ("intended
reader") would conclude that such a work was indeed based upon
AD&D(tm); thus the work is, by this, most likely a derivative of
TSR's material.
Now that the work is derivative, what rights does the
author of the new work have? According to _The_Writer's_Legal_
Companion_, "Both compilations and derivative works may be copy-
righted. But the...Copyright Act protects only materials
contributed by the author of the work--not the preexisting
material.... The author of a derivative work finds originality in
changing an earlier work. Assuming these changes result in a
distinguishable version, different from the earlier work, they are
copyrightable." (_The_Writer's_Legal_Companion_ by Brad Bunnin,
Reading, MA: Addison-Wesley, 1988, p. 156) Therefore, everything
created by the author of the derivative work can be copyrighted
by that author; the owner of the copyright of the original
material has no rights to the new material. However, if any
original material is included and/or paraphrased, the original
owner maintains sole copyright over just the original material.
New material is still copyrightable by the work's author, as long
as it is distinguishable from the old work as being an addition of
new material. Thus the author of the new work may copyright the
material he created, and gains all the rights thereof.
What rights are granted to a copyright holder? Here they
are, right from the proverbial horse's mouth:
"Exclusive rights in copyrighted works. Subject to
sections 107 through 120, the owner of copyright under this title
has the exclusive rights to do and to authorize any of the
following:
"(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 copy-
righted 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
choreographed works, pantomimes, and motion pictures and other
audiovisual works, to perform the copyrighted work publicly; and
"(5) in the case of literary, musical, dramatic, and
choreographed works, pantomimes, and pictoral, graphic, or
sculptural works, including the individual images of a motion
picture or other audiovisual work, to display the copyrighted
work publicly." (USC, S. 106)
Therefore, the author of the derivative work has the
sole right to exercise these five rights in respect to the work.
In any case, backtracking a bit, the author of a derivative
work must usually ask for permission to create it from the holder
of the copyright of the original work. USC S. 201(d), states
that any one, any combination, or all five of the exclusive rights
granted in a copyright may be transferred and held separately.
However, transfer of "exclusive" rights (giving an exclusive
license) means that the original copyright holder no longer may
exercise any rights thus transferred without terminating the
transfer, as outlined in USC S. 203 ff., and preventing the
licensee from exercising that right without a new transfer.
Since TSR still retains full right to create and distribute its
own derivative works, there is not an exclusive license in
existence. However, there may be a nonexclusive license.
_The_Copyright_Handbook_ creates the definition
"Nonexclusive license," meaning, "giving someone the right to
exercise one or more of a copyright owner's rights on a
nonexclusive basis. Since this does not prevent the copyright
owner from giving the permission to exercise the same right or
rights at the same time, it is not a transfer of copyright owner-
ship." (Fishman, p. 9/2) This book goes on to say, "A nonexclusive
license is not a transfer of ownership; it's a form of sharing.
The most common type of nonexclusive license is one granting an
author permission to quote from, photocopy, or otherwise use a
protected work; such licenses are often called permissions...As
with exclusive licenses, nonexclusive licenses may be limited as
to time, geography, media, or in any other way....It is not
necessary to have a formal contract...to grant a nonexclusive
license....An express written or oral agreement is not always
required to create a nonexclusive license. A nonexclusive
license can be implied from the circumstances--that is, where
the circumstances are such that a copyright owner must have
intended to grant a nonexclusive license, it can be considered
to exist without an actual agreement." (Fishman, p. 9/4) I think
that this is an important point, and bears repeating. A
nonexclusive license may be granted a) without a formal contract,
and b) without even written or oral agreement, by implication that
such a license was obviously intended.
Was such a license obviously intended? Let's examine
some of the evidence:
"Take the time to have fun with the AD&D rules. Add,
create, expand, and extrapolate. Don't just let the game sit
there." (David "Zeb" Cook, Introduction to the _Dungeon_Master's_
Guide_, 2nd ed., p. 3)
"[When your character is doing magical research] you
should first write up a description of the spell you want to
create. Be sure to include information on components, saving
throws, range, duration, and all the other entries you find in the
normal spell listings." (_Player's_Handbook_, 2nd ed., p. 86)
Many more references such as these abound in material put
out by TSR. I think that it is pretty safe to infer a
nonexclusive license from these passages. And, since any new
material created under such a license may be copyrighted by its
author, the author may enjoy all the rights and privileges thereof,
including distribution. Therefore, when TSR says that this
customer-created material "may not be published or redistributed
except through MPGNet or TSR," they are putting words in the
author's mouth which he may not wish to say. If the author wishes
to, he could place such information on any ftp site in the world
for distribution, or even print a paper copy, photocopy it, and
mail it to all of his friends for use in their campaigns. It is
the author's right. In fact, they were wrong to force sites
carrying such material to close public access to the material, if
not erase it completely from the database, for this very reason.
It is not their place, as (barring scanned in copies of existing
TSR material), they do not own the copyright to, and therefore
have no say over how such derivative works are distributed.
Notwithstanding all of the above, some people feel that
the amount of borrowed material is small enough that such a new
work would not be considered a derivative work of the existing
material; and any such borrowing of expression would not need
permission, as it would be a "Fair Use." Since there are some
valid points to such an argument, and it is not completely
obvious which way such a use would lie, what follows is a corollary
argument, why such material could be considered a fair use and
thus be completely out of TSR's jurisdiction to permit (or not)
its distribution. Either way, whether derivative or fair use,
TSR may not prevent the author from distributing such material
in any way he wishes.
First, the definition of "fair use," as it appears in
the US Code: "Limitations on exclusive rights: Fair use.
Notwithstanding the provisions of sections 106 and 106A, the
fair use of a copyrighted work, including such use by reproduction
in copies or phonorecords or by any other means specified by
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." (USC, S. 107)
_The_Copyright_Handbook_ states how fair use applies to
possible derivative works: "Even if a derivative work's author
uses someone else's protected expression, permission may not be
required if the use constitutes a fair use. Pursuant to the fair
use privilege, an author may take a *limited* amount of the
protected expression in pre-existing works without the copyright
owner's permission." (Copyright Handbook, p. 7/6) The important
thing to remember here is that it is the amount of the original
which is taken which matters, not what percentage of the new work
is old material. In addition, if nothing is quoted or paraphrased,
(no existing expression is taken), an idea put forth in copyrighted
material may be freely used, as "Facts and ideas are always in
the public domain. For this reason, an author need not obtain
permission to use the facts and ideas in an otherwise protected
preexisting work...but he neither quotes nor paraphrases any of
the material in the book. [It] is not a derivative work [and he]
need not obtain the permission..." (Fishman, p. 7/6)
However, it is the fourth criterion for fair use (effect
on potential market) which is the most important, rather than the
third (amount of material taken from the original), according
to certain sources. "Fair use, when properly applied, is limited
to copying by others which does not materially impair the
marketability of the work which is copied." (_Nimmer_On_Copyright_,
by Melville Nimmer, S. 1.10(D),) In this case, "copying" also
refers to derivative works. "The effect of the use upon the
potential market for or value of the copyrighted work, according
to the U.S. Supreme Court, is 'undoubtedly the single most important
element of fair use.'" (FAQ of misc.legal, in reference to
"Harper & Row vs. Nation Enterprises, 471 U.S. 539 (1985)") In
light of this evidence, it is possible for TSR to claim that
widely distributed derivative works made available at no cost
could cut into the profit potential and marketability of any of
its own derivative works. However, I think the opposite is true, and
this applies somewhat for derivative works as well. If there is a
proliferation of material which requires ownership of TSR
materials to use as is, then sales of TSR materials could actually
increase as customers buy the material required to use these works,
and then decide to purchase "official" material. The vast
majority of other game companies view the situation this way,
including West End, SJG, and id (the latter in respect to the
creation and availability of user-created add-ons for their games
"Doom" and "Doom II"). The availability via the Internet, or via
a circle of friends, of products created for these games, whether
created by the companies or not, enhances, rather than detracts
from each company's copyrighted products.
Despite all of the above, TSR's policy statement was
correct in advising that the easiest way around this situation
is to create "generic" works, which basically consist of just
a verbal description without game mechanics. These works can
are easy to translate to any game system and allow all GM's to
create their own solutions as to what the game mechanics for the
work in question should be, and avoid the entire "derivative/fair
use" argument entirely. However, this misses the point. Just
because it is easier doesn't make it the sole solution. I think
I have shown above that it is the authors' right to distribute
such works however they desire, whether or not they include a few
game mechanics.
In summation, I think that this entire situation can be
easily and relatively painlessly resolved by TSR doing four
things. First, by revising the disclaimer, striking out part
of the second sentence ("is made available by MPGNet through
license from TSR"), and striking out the last sentence and
allowing each author to include his or her own distribution
statement (for example "personal use only," "freely distributable
and may be used as the basis for further derivative works," or
"freely distributable in this form only"). Second, if TSR wishes
to maintain one or more "licensed" ftp sites, wherein the material
included passes TSR's standards for acceptability, but is still
"unauthorized," or is actually created and distributed by TSR
itself, that is fine, as long as non-licensed sites are allowed
to exist. (Think of the prestige people could feel at having
their material available at an "official" site, even if the
material is officially "unauthorized." Also, consider the
"Build a better mousetrap" idea: if an ftp site gains a reputation
for consistently having the best material, whether it is
affiliated with TSR or completely independent, people will come
flocking, as they did to the old greyhawk.stanford.edu archive.)
Third, a public statement (preferably via the Internet and/or in
Dragon(tm)) which outlines the entire official policy. Fourth,
an apology to the one group targeted and most affected by the
original policy: the gaming community so loyal to AD&D(tm) that
they chose it over all the other rpg's out there as the basis to
create their spells, creatures, rules variants, stories, etc. It
is this group that purchases a large chunk of TSR products, and TSR
cannot afford to chase their own customers away.
SELECTED BIBLIOGRAPHY
Bunnin, Brad, _The_Writer's_Legal_Companion_, Reading, MA:
Addison-Wesley Pub. Co., 1988.
Fishman, Stephen, _The_Copyright_Handbook:_How_to_Protect_and_Use_
Written_Works_, Berkeley, CA: Nolo Press, 1994.
Nimmer, Melville, and Nimmer, David, _Nimmer_On_Copyright:_a_
treatise_on_the_law_of_literacy,_musical_and_artistic_
property,_and_the_protection_of_ideas_, New York: Matthew
Bender, 1993.
Strong, William S., _The_Copyright_Handbook:_A_Practical_Guide_,
Cambridge, MA: MIT Press, 1990.
U.S. Congress, _Copyright_Law_of_the_United_States_of_America_c
contained_in_Title_17_of_the_United_States_Code_, Rev. to
March 1, 1991, Washington, D.C.: Library of Congress, U.S.
Copyright Office, 1991.