Games & The Law, Part Seven: The D&D Dilemma
by Shannon Appelcline
This is the seventh in a series of articles about how the legal world and the gaming world intersect. It's also an article that's going to cover a specific topic: Dungeons & Dragons and the question of who can publish supplements for an existing game system.
Though the question of unlicensed third-party supplements for the D&D game is probably about to hit the headlines again thanks to the actions of third-party publisher Kenzer & Company, it's actually a dilemma that's gone back thirty years ... and which is reappearing now due to Hasbro's changing attitude toward intellectual property in the last 8 years.
I'm going to trace this history all the way back to show what's gone before and to examine what the precedents to date have suggested. In the process I hope to uncover how game systems have been protected (or not) according to the cases to date.
But, before I get started, let me offer the legal disclaimer that I put up for every article in this series: I am not a lawyer and this is not legal advice. It all matches my best understanding of the law to date, but you shouldn't make business decisions based upon it.
The Judges Guild Entry
It 1974 TSR published someting new: Gary Gygax and Dave Arneson's Dungeons & Dragons. Certainly nothing before it had offered the ability to roleplay individual characters in a fantasy setting in quite the same way, but from the perspective of intellectual property, D&D offered something even more interesting. It created a game system which could be supplemented by additional rulebooks and adventures, providing the opportunity for hundreds or thousands of products to be created based upon that singular inspiration.
Innovators quite often don't see the true depth of their invention, and that seems to be the case here. TSR quickly dedicated themselves to putting out new books of rules, beginning with Greyhawk. However, it wasn't until 1976 that anyone thought about publishing a wider class of supplements for D&D, including setting books and adventures.
That was the year that Bob Bledsaw went to TSR seeking a license to publish supplements for their new game. His appeal was strictly an amateur one: he'd split gas money with a friend to get to Lake Geneva--the home of TSR--and he didn't have any prior publishing experience. Nonetheless, he was out on the cutting edge of what this new game offered--as could be seen by TSR's response.
According to Bledsaw, the staff at TSR laughed at him. Not because of his inexperience--because TSR was pretty tiny then too--but rather because they couldn't conceive of anyone wanting to buy supplements of the sort that Bledsaw wanted to publish. New rules they understood, but the ephemera that could be created by individual players? That seemed ludicrous.
According to Bledsaw one more thing was said at this meeting. He says that TSR stated that game mechanics couldn't be copyrighted anyway, so it was a moot question, and Bledsaw could do whatever he wanted.
He did. He founded a new company called Judges Guild, which would become the top manufacturer of third-party gaming supplements throughout the late 1970s. Very quickly, TSR saw that Judges Guild was going to be quite successful, and so they went back and negotiated a formal contract with Bledsaw, asking for royalties, but also giving him the right to use the Dungeons & Dragons trademark.
Did Bledsaw need this licensing agreement to publish D&D products?
To a certain extent that's going to be the topic of this entire article, but I think it's very telling that he got more than just the right to use the D&D game system, which may or may not be protected by IP law. He also got the right to use the Dungeons & Dragons trademark, and the latter pretty unequivocally is protected.
That's an interesting benchmark when we discuss what happened in 2000, but in the meantime there's 25 years of lawsuits to look at.
Twenty-Five Years of Lawsuits
In 1982 TSR terminated Judges Guild's license to publish D&D products. Judges Guild responded by changing their products over to being "generic"--which often meant using TSR's game system but changing a lot of the terms and not indicating any compatibility. This could have led to the first IP battle over a game system, but at the time the roleplaying industry was undergoing its first recession. Judges Guild stopped publishing within a year, and the issue appeared to be moot ... except for the entry of a new publisher called Mayfair.
Mayfair Games was founded in 1980 by Darwin Bromley, an attorney. That latter fact is in an important one. As we'll see, in the history of the roleplaying industry it's been the companies owned by attorneys who have done the most to stand up to claims of ownership over game systems, one presumes because of their own improved understanding of the law.
Just like Judges Guild, in 1982 Mayfair started putting out "generic" adventures that were intended for use with D&D. They called this their "Role Aids" gaming line. However, it probably wasn't until their fourth publication that TSR decided to take action against them. Despite the lack of a license from TSR, that fourth book, Dwarves, included a subhead which read, "A Complete Kingdom & Adventure suitable for Advanced Dungeons & Dragons.” There was also very precise legal text which made it clear that Dwarves was not an approved TSR product.
With the dissolution of their license with Judges Guild, TSR was hoping to increase the production and sales of their own supplements. However, Mayfair offered a real danger to that plan: not just in the production of their own supplements, but in the idea that anyone could produce clearly labeled D&D supplements, whether they had a license or not. TSR sued.
But then a curious thing happened on the way to the court house ... In 1984 Mayfair Games and TSR reached an agreement whereby Mayfair was allowed to publish D&D supplements provided they followed certain rules under the terms of a contract between the two parties.
More people might remember the fact that TSR reopened their legal dispute with Mayfair in 1991, but that wasn't over violation of TSR's IP, but rather over violation of the contract that Mayfair had signed in 1984. In other words, if Mayfair had never agreed to specific terms to publish D&D supplements, they might just have been fine.
By 1993 a judge had offered a preliminary decision saying that Mayfair had violated the agreement, but that the breaches were minor and correctable. And then a curious thing happened on the way to a final decision ... Mayfair and TSR reached an agreement in 1994 whereby Mayfair sold off their rights to the Role Aids line to TSR and the suit was dismissed.
Mayfair wasn't the only target of TSR's legal wrath in the 1990s. In 1992 TSR also initiated a suit against GDW who was then working on a game called Dangerous Dimensions (later, Dangerous Journeys), which was authored by Gary Gygax, the creator of Dungeons & Dragons. This was even a further step in TSR's IP reachings, because they claimed that Dangerous Journeys was derived from some of the ideas of D&D even though it wasn't a D&D supplement of any sort.
But ... and this isn't going to surprise you ... a curious thing happened on the way to the court house. The case was settled out of court in 1994. GDW sold off the rights to the Dangerous Journeys line to TSR and the suit was dismissed.
You can see a clear pattern among these three legal proceedings. A third party decided to publish something which TSR felt was a danger to their IP. TSR initiated a lawsuit with the claim that third-party product infringed upon their game--even in a case when it wasn't a supplement for D&D, but instead a competitor. Inevitably this suit cost the third party much more money than they could afford. However, TSR ended up bailing out before a final decision could be made, depending instead on an agreement with the party.
It seems like an odd thing to do ... unless you were actually afraid of the decision that a court might make.
(And before we leave the question of the lawsuits of 1975-2000 entirely, I'll note that these weren't the only cases of third-party game supplements in the 1980s and 1990s. Most notably a then-small company called Wizards of the Coast put out a book called The Primal Order in 1992 which included conversions for lots of game systems. One publisher, Palladium, decided to sue them, but as usual the matter was decided out of court.)
The IP Underpinnings
As I've written in past articles, there are three elements of IP which can come up when talking about game mechanics.
First, you have copyright. That covers the actual expression of an idea, which is to say a published rulebook. None of these third parties ever tried to republish TSR's rulebooks, and thus copyright is irrelevent.
Second, you have trademark. This is the use of the name "Dungeons & Dragons". Mayfair did use it, but they were careful to follow the rules which allowed them to do so as part of what's called "nominative use".
Third, you have patent. This can allow you to protect game systems, but to my knowledge there are no patents on roleplaying game mechanics. They're generally too expensive to acquire given the size of the industry.
That all goes to suggest that TSR couldn't protect D&D from third-party supplements, except through the threat of lawsuit and through the execution of contacts that third parties were talked into signing.
It also provides the answer for TSR's apparent reluctance to complete their lawsuits in the 1990s and may even suggest why they didn't get into it with the next person to publish third-party D&D supplements. That was Kenzer & Company who published Kingdoms of Kalamar (1994) as a book that was compatible with D&D.
To my knowledge, TSR never filed a lawsuit against Kenzer & Company. That might be because TSR was already on its way out, heading toward bankruptcy in 1997. However it might also be that David Kenzer, the founder of Kenzer & Company, was also a lawyer, and one who seems willing to respond very aggressively to any threat of suit.
And, David Kenzer isn't just any lawyer. He's an IP attorney.
d20 and What Came After
By the year 2000 the roleplaying industry was generally slumping, with computer games and collectible card games each impacting the market. Several old-time publishers had gone out of business. Even TSR was gone, with Dungeons & Dragons now passed on to that once-small company, Wizards of the Coast, and thus to corporate overlord Hasbro. Third-party supplements to D&D weren't a particular problem, but that could have reflected the weakness of D&D as much as anything. Kingdoms of Kalamar was still out there--with many supplements--but that was about it.
Then with the release of the third edition of D&D, Wizards of the Coast VP in charge of roleplaying Ryan Dancey tried something new and innovative. He created two new D&D licenses, the "d20 Trademark License" and the "Open Gaming License". They each allowed third parties to use the D&D game system. The d20 license had some restrictions, but it balanced them out by allowing the use of TSR's brand-new d20 trademark. The OGL had no real restrictions other than a promise to share-alike. Both licenses offered sufficient value that they left no real reason to publish unlicensed D&D supplements. Within a few years there were thousands of D&D compatible products on the market, creating a real resurgence in the line.
But then in 2008, with the release of D&D 4th edition, Wizards of the Coast decided to do away with both the d20 and OGL licenses. Instead they offered up a new Gaming System License. This GSL was in some ways similar to the d20 license, but more restrictive. Publishers had to be individually approved by Wizards of the Coast and could be tossed out of the program at any time. They could also only publish fantasy-related products. Numerous other nuances each made it less attractive than the d20 license. And, there was no equivalent to the essentially unrestricted OGL. The GSL offered the carrot of using the D&D trademark, but with many d20 publishers already having created their own brands in the d20 days, it was a weak incentive for existing publishers.
Suddenly, the questions of the 1980s and the 1990s were back. Could D&D supplements be published without Wizards' approval?
The Future of Third-Party Supplements
As of this writing, the future of D&D and the GSL is still to be written. However, it's obvious that more publishers are aware of the limits of the rights that Wizards actually has over their game. The internet, not available in the days of the original Mayfair lawsuit, provides a huge amount of information on IP law and could also allow third-party publishers to cooperate against bullying.
The floodgates broke in the last few weeks. Adamant Enterprises started putting out Venture 4th supplements, which are clearly intended for use with D&D, but which don't use any trademarked terms.
However it appears that it's Kenzer & Company who is in the forefront of third-party supplements. After years of using the D&D trademarks, under separate license from Wizards of the Coast, Kenzer has reverted to publishing Kingdoms of Kalamar as an unlicensed third-party supplement.
On the topic, David Kenzer says:
[T]hat is not copyright infringement.
Kenzer's use of computer operating systems as a metaphor for game systems is a telling one that suggests the lack of a common-sense basis for the legal tactics that TSR pushed in the 1980s and 1990s and ultimately failed to ever bring to conclusion.
As usual, thus, it's the trademarks that people have to be careful of. Since Kenzer is an attorney with knowledge in this field, he hasn't been afraid to use the D&D trademark, but in a careful way to ensure that it can't be confused with an official product, again under the theory of nominative use, which allows for the use of a trademark for identification purposes as long as the use is minimal and clearly unendorsed.
In this world of the internet, Adamant and Kenzer could easily be opening the floodgates.
From 2000-2007, Wizards of the Coast created an industry centered around publishing third-party supplements for D&D. Now they're trying to put the genie back in the bottle, but in doing so they have a huge problem: existing IP law suggests that Wizards does not actually have the right to restrict third-party usage, and their predecessor, TSR, was never willing to bring a court case to completion to prove that they did.
Although some publishers will probably find enough value in the D&D trademark to sign up under the GSL, it's looking like there will be many more willing to go it alone.
A surprising court decision could change all of our understandings of this topic, but I find it much more likely that Wizards of the Coast is about to run face-first into their own arrogance on the subject.
IP laws are very specific in what can be protected, and from what we've seen and (absent the largely unused patent laws in this arena) game systems aren't it.
The historical data in this article comes from a personal piece I'm working on surrounding the history of the roleplaying industry. You can find some early articles on the topic at RPGnet. I've since been revising and expanding the topic for eventual book publication ... though the project has been on hold since last August.
Gary Gygax and Bob Bledsaw, two of the primaries mentioned in this article, both passed away this year. They were giants who created an industry that is enjoyed by millions of people today. Bledsaw was kind enough to help out my understanding of Judges Guild through some emails in 2007.