Beware the Gifts of Dragons: How D&D’s Open Gaming License May Have Become a Trap for Creators

According to leaks reported last week, the company that owns Dungeons and Dragons (D&D) is planning to revoke the open license that has, since the year 2000, applied to a wide range of unofficial, commercial products that build on the mechanics of Dungeons and Dragons. The report indicates that this wouldn’t simply be a change going forward, but would affect existing works that relied on the license. The old license would be revoked for existing uses, and people who have used on it will be forced to adopt new terms or renegotiate with the company, Wizards of the Coast, a subsidiary of game giant Hasbro.

Obviously, this would be a rude and unfair thing to do to people who have accepted the invitation of the open gaming license (OGL) to create new games and stories that build upon Dungeons and Dragons. But would it be legal?

Even more interesting, would revoking the OGL actually give some third parties more freedom to operate, given that the OGL forced them to promise not to do some things that copyright and trademark law otherwise permit?

Let’s find out.

What is an open license?

An open license is an offer to allow people to use your materials in the ways you specify, despite some legal right such as a copyright that would otherwise entitle you to withhold permission. For instance, the Creative Commons Attribution license provides rights to adapt and share a copyrighted work, so long as the user gives you credit, or “attribution.”

If you have a copyrighted work and you want to give people reassurance that they can make use of it, open licenses are a handy way to do that. You might do this because you want your work to be freely shared far and wide or because you want to build a community of creativity.

But an open license only makes sense if the work is actually copyrightable, meaning, you would otherwise have the legal power to stop someone from doing what you want to permit. For instance, if I put together an uncopyrightable phone book composed of bare facts organized alphabetically, then people are already free to use it and there nothing for me to “license.”

What’s copyrightable about a roleplaying game?

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