Trade Dress and the OGL

[Fenris-77]

I've never actually produced rules that I might want to distribute before, so haven't really had the need to get into the nitty-gritty of the OGL. I know a bunch of you peeps have though, so I thought I ask for some advice. I had two questions to start. First, to what extent is the precise text of an OGL work protected or not? It doesn't seem like it is, but I'm not sure. My second question is a little more nuanced, and is about Trade Dress. How much would something have to resemble the original in order for this to be an issue? The text in question is the Black Hack, and I quite like the two column presentation, as well as the pattern of bolding key rules terms. Would reproducing that using different font and art be kosher? I don't think I'll actually sell the Hack I'm doing, but I would probably like to give it away and I don't want to get myself into trouble. Any other advice anyone might have would be very welcome.

 

[Nobby-W]

I've never actually produced rules that I might want to distribute before, so haven't really had the need to get into the nitty-gritty of the OGL. I know a bunch of you peeps have though, so I thought I ask for some advice. I had two questions to start. First, to what extent is the precise text of an OGL work protected or not? It doesn't seem like it is, but I'm not sure. My second question is a little more nuanced, and is about Trade Dress. How much would something have to resemble the original in order for this to be an issue? The text in question is the Black Hack, and I quite like the two column presentation, as well as the pattern of bolding key rules terms. Would reproducing that using different font and art be kosher? I don't think I'll actually sell the Hack I'm doing, but I would probably like to give it away and I don't want to get myself into trouble. Any other advice anyone might have would be very welcome.

There should be no issue in copying the layout and typography. You can even use the same font. The trade dress of the cover might be subject to some sort of trademark application, but I can't see a small indie publisher having the resources or motivation to make trouble over this unless you're blatantly ripping off their product. I think the OGL should permit you to publish a hacked about version of the rules but may require attribution or some such. I am not a lawyer, nor do I play one in any RPG, though.

 

[Fenris-77]

In the case of the BH all the other hack covers look on-purpose like versions of the BH cover, so I'm probably safe there. Thanks.

In the case of non-OGL stuff I'm given to understand that the mechanics are fair game but I'd essentially have to rewrite the verbiage? It's not so much that I have a lot of stealing in mind, but there are a few mechanics....

 

[Nobby-W]

In the case of the BH all the other hack covers look on-purpose like versions of the BH cover, so I'm probably safe there. Thanks.

In the case of non-OGL stuff I'm given to understand that the mechanics are fair game but I'd essentially have to rewrite the verbiage? It's not so much that I have a lot of stealing in mind, but there are a few mechanics....

Some licences (e.g. the Gumshoe SRD) explicitly allow you to cut and paste the text. I couldn't say OTOH whether the Black Hack allows this, but if its licence doesn't explicitly allow that then it probably doesn't

 

[robertsconley]

I've never actually produced rules that I might want to distribute before, so haven't really had the need to get into the nitty-gritty of the OGL. I know a bunch of you peeps have though, so I thought I ask for some advice. I had two questions to start.

Be glad to help.

First, to what extent is the precise text of an OGL work protected or not? It doesn't seem like it is, but I'm not sure.

In the United States all works are copyrighted by their creator the moment they are made. The text of a OGL work is protected by copyright. However the creator (author) gives permission under the open game license for you to copy or make derivative works from the text designated as open content. The among the condition of allowing you to use the open content is that you have to license the copy you made or the derivative work as open content under the OGL. That you give proper credit in your section 15 of the OGL. You also give up the right to cite compatibility with another copyrighted work unless you have a separate license.

For example take Blackmarsh. The map and text but not my Bat in the Attic name and logo are open content. You can use Blackmarsh to make an adventure provided that that any section using Blackmarsh material is also open content.

Designation of Product Identity: The following items are here by designated as Product Identity in accordance with Section 1(e) of the Open Game License, version 1.0; Any and all Bat in the Attic Games logos, identifying marks, and trade dress.

Designation of Open Content: Subject to the Product Identity designation above, the entirety of this document plus the map of the Blackmarsh Region, and the map of Castle Blackmarsh.

Now let's look at Scourge the Demon Wolf.
Designation of Product Identity: The following items are here by designated as Product Identity in accordance with Section 1(e) of the Open Game License, version 1.0; Any and all Judges Guild logos, identifying marks, and trade dress; Any and all Bat in the Attic Games logos, identifying marks, and trade dress; all artwork, maps, symbols, depictions, and illustrations; all of Underworld and Adventures is designated Product Identity; except such items that already appear in the System Reference Document.

Designation of Open Content: Subject to the Product Identity designation above, all creature and NPC statistic blocks are designated as Open Gaming Content, as well as all material derived from the SRD or other open content sources.

Here I am much more restrictive in what I share as open content. I opted to share only the material I directly used from the Swords & Wizardry SRD namely the creature and NPC stat blocks. If I had a chapter with new rules or items, likely I would declare just that chapter open content.

In general,

If it is a set of rules it is better to be expansive about what is open content or not. Unless you are licensing something from another party.

If it is a supplement like say Gladiators for Open quest. You may be able to get away with some chapters open content and some chapters product identity.

If it is an adventure or text heavy setting material. Then likely the only thing that needs to be open content is the stat block.

My recommendation is in general to be more expansive. At the self-publishing level I operate at people want stuff from Rob Conley (if it is good). With the Internet every creator/author is a hop and a skip from their customers.

My second question is a little more nuanced, and is about Trade Dress. How much would something have to resemble the original in order for this to be an issue? The text in question is the Black Hack, and I quite like the two column presentation, as well as the pattern of bolding key rules terms. Would reproducing that using different font and art be kosher? I don't think I'll actually sell the Hack I'm doing, but I would probably like to give it away and I don't want to get myself into trouble. Any other advice anyone might have would be very welcome.

For a definitive answer you will need to ask an IP lawyer. But remember copyright protects the expression of an idea not the idea itself. BlackHack doesn't own the idea of using a two-column presentation. If you use a different font, and different art the final question to ask can people confuse my product for an official Black Hack product. That what the law cares about.