RockyMountainNavy, 8 March 2023
Thanks to Wizards of the Coast, nearly all of the gaming world—and much of the non-gaming world…especially Hasbro investors—likely have heard about the “OGL,” or Open Game License. As if we needed any more drama than Wizards has already supplied, in Episode 1 of Season 10 in the “Mentioned in Dispatches” podcast hosted right here at The Armchair Dragoons, Regimental Commander Brant asked, “Why not make a wargame OGL?”
BECAUSE. WE. DON’T. NEED. IT.
I’m sure that simple answer is not good enough for Brant who apparently is channeling his inner wannabe-Colonel [How do you define CHAOS? “Colonel Has Another ‘Outstanding’ Suggestion”] and is surely not satisfied with that brush off. So let me try to explain. To help I’m going heavily reference two articles in this discussion. The first is by Kit Walsh at the Electronic Frontier Foundation (EFF.com) titled “Beware the Gift of Dragons: How D&D’s Open Gaming License May Have Become a Trap for Creators” from early January 2023. The second is “Intellectual Property and Tabletop Games” by Christopher B. Seaman and Thuan Tran and published in Iowa Law Review Vol. 107.* [I really love the dedication in the article: “Professor Seaman dedicates this article to his family who loves to play tabletop games (and usually beats him at them).”]
What is an OGL?
An Open Game License (OGL) is just that—a license. As Kit Walsh explains:
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.”
Walsh, “Beware the Gift of Dragons”
Why might content creators want to use an open license? Again, Kit Walsh explains:
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.
Walsh, “Beware the Gift of Dragons”
One point that is sometimes easy to forget is that the OGL is not a game. Different versions of the Dungeons & Dragons roleplaying game are licensed under the OGL, but the “system”—or game—that the license applies to is in a System Reference Document, or SRD.
Importantly (and I Am Not A Lawyer but I occasionally stay at the Holiday Inn Express) boardgame mechanics (i.e systems or methods) are NOT copyrightable. As Kit Walsh writes, “Copyright grants an author limited monopoly over their creative expression. It doesn’t cover bare facts, mere ideas, systems, or methods.” In their discussion of the Copyright Act, Seaman and Tran point out that courts have long held that “game mechanics and …rules are not entitled to [copyright] protection.” (Seaman & Tran, p. 1636)
What is copyrightable is the way one creatively expresses facts, ideas, or even game mechanics. For example, a wargame designer might want to use a Combat Results Table (CRT) in their game. That “mechanic” is not copyrightable, but the rules the designer writes of how a CRT is used to resolve combat in that game and how it is laid out on a Player Aid with graphics and text aligned from the wargame it supports are copyrightable. As one court ruling put it, “[T]he wording of instructions for playing the game is itself copyrightable…That copyright would not, however, permit a monopoly in the method of play itself, as distinguished from the form of instructions for play.” (Seaman & Tran, p. 1636 fn 156) Seaman and Tran go on to emphasize:
Even though a game’s mechanics and rules–’the heart of a game’—are uncopyrightable, numerous other aspects of it may qualify for copyright protection. For instance, artwork that appears on the box, cards, miniatures, or other components of the game may be protectable as pictorial, graphic, or sculptural works. Similarly, some board game surfaces that depict real or fictional locations and terrain “may be copyrightable as ‘maps.'”
Seaman & Tran, p. 1636
A Wargame SRD
With the above quasi-legal mumble-jumble in mind, what would a wargame SRD possibly look like? If one uses the D&D, or even Traveller Roleplaying Game SRD as an example, one will find the “game” is the rules of play but no “setting” or what is legally defined in the OGL as “Product Identity.” To use Traveller as an example, the SRD lays out the rules inspired by the Classic SF RPG Rules and what others have reworked into Cepheus Engine or, if you are Mongoose Publishing, into the copyrighted Mongoose Traveller edition. The Third Imperium setting, however, is Product Identity and remains under copyrighted by Far Future Enterprises and Mongoose Publishing. Thus, users of the Traveller SRD (and especially its derivative Cepheus Engine) and content creators such as Independence Games can create a rule book derived from the system and methods in the Traveller SRD but with their own setting such as The Clement Sector.
In some ways this rules/setting split is similar to how rulebooks for many series wargames are published. In a series game, like the Battles of the American Revolution series from GMT Games or the Standard Combat Series from Multi-Man Publishing, there are often two rule books included. The first is the “series” rules with the basic game mechanics laid out and a second “game” rule book usually containing rules specific to that particular game (i.e. setting). My copy of Brandywine (GMT Games, 2000) has separate Game Rules and Exclusive Rules, much like North Africa: Africa Korps vs. Desert Rats, 1940-42 (MMP, 2021) has SCS Series Rule Book v1.8 and a separate Game Rules. I can play any game of the series with the Series rule book (“the game”), but I need the unique Game Rules to individually play each title (“the setting”).
What wargame could be released under an OGL? Brant brought up the example of Commands & Colors. The Commands & Colors system was originally designed by Richard Borg and has seen multiple versions published by several different publishers. All use a very similar set of game mechanics, but the rules for not two games are exactly alike either. I do not know how the game is licensed, though I think all derive some sort of licensing from Mr. Borg since his name appears on the cover or in the credits of every version I have seen. Thought not directly applicable, Seaman and Tran point out that in the boardgame industry, “when an out-of-print game is reimplemented, there is a community norm that the original game designer will receive attribution, and often financial compensation (in the form of a royalty) as well, even when not required by copyright law.” (Seaman & Tran, p. 1679)
Assume for the moment that Richard Berg publishes a C&C SRD. Then what? Wargame content creators can then create supporting content to their hearts desire…for that game. But they already can do this…without an SRD. Go look at the incredible collection of files at commandsandcolors.net. The reason much of that content can be created is two fold; it is legally covered under Fair Use and it is NOT commercially sold.
But what if I don’t want to play a Commands & Colors game but maybe something like Undaunted: Normandy from Osprey Games? The game mechanics laid out in a C&C SRD are not at all like an Undaunted game. No, to play an Undaunted wargame I’m going to need an Undaunted SRD. I don’t think Osprey or maybe even David Thompson would like that because it takes away potential revenue generation (nor will players probably like it if there is royalty money involved…look at what happened to Wizards of the Coast when they tried to add royalty payments in a revised OGL for D&D).
Beware the Gift of…Warriors
Interestingly, accepting an OGL, like the one offered by Wizards of the Coast and used in many roleplaying games, may actually give content creators fewer legal rights. In many ways an open game license is an insurance policy that you won’t be dragged into court. As Kit Walsh writes, “The primary benefit is that you know under what terms Wizards of the Coast will choose not to sue you, so you can avoid having to prove your fair use rights or engage in an expensive legal battle over copyrightability in court.”
Interestingly, Seaman and Tran conclude that current Intellectual Property [IP] law actually appears to be serving the tabletop gaming industry well:
First, IP law appears to work fairly well at balancing the important interests of incentivizing the creation of tabletop games and preserving the freedom of others to innovate. In particular, the basic building blocks of a game—its mechanics and rules—are generally unprotected IP, as they cannot be copyrighted, and patent protection is usually difficult if not impossible to obtain, particularly under the Federal Circuit’s current approach to patent eligibility. This means that other creators are generally free to modify or adapt a game’s underlying mechanics to new themes, settings, or topics.
Seaman & Tran, p. 1677
Wargame publishers also use IP rights to protect their investment. Ask any wargame publisher, big or small, and they will very likely tell you that publishing a wargame isn’t cheap. It is also important to remember that copyright and trademark law protects against unauthorized reproductions which ties back to the cost of production. Seaman and Tran also note that some incentives for wargame publishers and designers are not necessarily derived from IP laws. “Indeed, the evidence suggests that non-IP incentives, such as the intrinsic value of creating and sharing new games and receiving attention from them, may be more significant drivers of innovation for game creators that formal IP law.” (Seaman & Tran, p. 1683)
What do you want?
In an e-mail exchange with Brant regarding this article, Brant reiterated that when he was thinking aloud about a Wargame OGL, he was loose in his usage of the terms OGL and SRD. What Brant wants to be sure you and I understand is, “To me, it was less about the exact legal structure any licensing would take, as that can be made fairly flexible, than it was about the SRD – the shared “series” rules that could be applied across a variety of games.” Brant, it appears, is making the case for a publicly released “toolkit” for wargamers:
That was the path I was going down, or at least intending to. Open up some rules systems and let the community do it’s thing…it would be pretty flexible and give designers a stable toolkit, should they choose to access it, to build their own “settings”
Brant on a rant…
My question to you, the community of wargamers and hobby gamers alike, is to ask if there is enough demand for a wargame SRD that could compel the owner of any given game system to grant an open license?
While a wargame OGL might sound appealing to some (not me!), the bottom line is that the wargame community doesn’t have a need for a wargame OGL. Current Copyright and Fair Use laws already well serve the content creation community by providing a fair balance between innovation and property rights. Look at the robust content creation community around Advanced Squad Leader for an example of how community content creation already works. If there is an aspiring wargame designer out there that has made the ultimate next version of a wargame (like Commands & Colors: Samurai started long ago) they can work with a publisher to help make things happen—within existing laws. Granted, the process may not be fast, and there is little guarantee that it will be profitable, but it can happen.
*Seaman, Christopher B. and Tran, Thuan, Intellectual Property and Tabletop Games (April 16, 2021). 107 Iowa Law Review 1615 (2022), Available at SSRN: https://ssrn.com/abstract=3828070
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IF YOU ENCOUNTER A COUNTER CASTING A HEX IN A HEX
AND YOU COUNTER THE HEX WITH A COUNTER-HEX IN THAT HEX DURING THE ENCOUNTER,
AND YOU HAVE TO COUNT HOW MANY HEXES ARE IN THE HEX DURING THE ENCOUNTER
ARE YOU PLAYING A HEX-AND-COUNTER WARGAME?