|Hasbro's OGL headache?|
- Short terms or phrases don't fall under copyright unless they are emblematic of the work in question (like "Play it again, Sam" for Casablanca).
- Precedent supports the making of original "add-ons" and supplements for games without license.
- References to trademarks are allowed under the doctrine of nominative use, provided there is no other commonly recognized way to refer to the trademarked thing, and there is no confusion as to the origin of the product.
- Game mechanics may be subject to patent (as in Wizards' soon-to-expire patent on the concept of a collectible card game) but this is a separate issue.
Well, it seemed like a good idea at the time, but every general is fighting the last war. The OGL was a silver bullet for two problems that had helped drag down TSR in the 1990's: commitment to producing a glut of official products, and bad publicity from infringement policing. In that light it was a brilliant single stroke combining PR and outsourcing.
But over ten years later, as the sales of the OGL product Pathfinder have outstripped those of the official D&D game, there must be bitter regrets indeed in Providence. Certainly, strong signals are being sent that the next Hasbro edition of D&D is going to go back to basics. If that's the case, it's likely that material being sold or given away that is currently not compatible with D&D 4th, but that sticks to the basic elements of D&D that have been very carefully maintained over otherwise seismic changes in the gameplay, will constitute more of a threat to their operations. In particular this would be true of complete games - "heartbreakers" - that let the players dispense with the core product that forms the mainstay of sales. It's also instructive that without exception, every commercial role-playing game that has been released as a clone or derivative of D&D, using that common language of stats and mechanics, has put itself under the OGL. This has decidedly not been the case with supplements.
Now, some people in the OSR (chiefly flagship captain Maliszewski) are extremely careful with their online content, to the point of putting every monster and spell idea under the OGL. My gamble is that this won't be strictly necessary. But something tells me that putting the core derivative work on this site - the One Page Rules modular D&D variant I have been using in games - under OGL rather than Creative Commons is a very good idea. There is enough of D&D's DNA in there that it seems both the prudent and correct thing to do.
That is my position anyway - certainly not legal advice of any qualified kind. If you think differently, won't you speak up in the comments?