> From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf > Of Bryan Fields > Sent: Thursday, July 24, 2003 11:31 AM > To: [EMAIL PROTECTED] > Subject: RE: [Ogf-l] "D20" as Product Identity > > It isn't a new area > of copyright, or a new category of IP. It's a contract under > existing IP law that has some language in it to address > specific concerns of the agreeing parties.
Let me see if I can clarify what Lee is asking, since it seems less clear to others than I'm finding it. 1. According to one reading of the OGL: to claim something as PI, you must be its owner. 2. Copyright and trademark DO provide concrete definitions of ownership. 3. The OGL DOES NOT provide a concrete definition of ownership. 4. PI is intended to provide a new way of protecting things which might or might not be protected under copyright. And that leads to two alternatives, and Lee is looking to understand -- based on the language in the license, not just stated intent -- which is correct: A. The ownership standards of copyright do not apply. In that case, what standards of ownership DO apply? B. The standards of ownership are those already established in existing IP law. That's easy enough, but it leaves open the issue of how to establish ownership of things NOT covered by existing IP law. Who owns a pose? Not a picture of someone in that pose, but the pose itself? Who owns "Feet apart, arms joined straight out in front, pistol pointed forward, eye lined up for the shot"? If the answer is "Nobody," then a PI claim on a pose -- an item specifically mentioned in the OGL -- is meaningless, because PI can only be declared by the owner of the PI. Saying "Copyright is not relevant" is all well and good; but does that equate to "Option A is correct"? And if it does, then what about the outstanding question: what standards of ownership DO apply? Now I think there's a third, overlooked option: C. A claim of PI IS a claim of ownership, just as is a copyright notice or a trademark indicator. It's a statement that "I believe that I am the owner of X, and I am willing to defend that claim in a court of law in the event that I believe that you have misused X in an OGL work derived from my work." To me, Option C seems to resolve the matter: PI is itself a new definition of ownership IN THE CONTEXT OF THE OGL. In other words, if I claimed "Feet apart, arms joined straight out in front, pistol pointed forward, eye lined up for the shot" as PI in my OGL-licensed work, and you then derived from my work AND used that pose in artwork in your derived work, I would have grounds to notify you of a breach; and if you failed to correct the breach within the cure period, I would have grounds to take you to court. And once we got to court -- probably once we got to fact-finding -- your attorney's first statement to me should be "Mr. Shoemaker, please demonstrate how you are the owner of 'Feet apart, arms joined straight out in front, pistol pointed forward, eye lined up for the shot'." And after I made my feeble claim, he could introduce into evidence any number of movie posters, comic book covers, etc., to counter my claim. All would predate my claim by years to decades. And the judge would then dismiss the suit, and most likely rule that my PI claim on "Feet apart, arms joined straight out in front, pistol pointed forward, eye lined up for the shot" was no longer valid. And THEN the reformation clause of the OGL WOULD kick in, but ONLY for my immediate license to any sublicensors: that one PI claim would be invalid, but the rest of the license would stand. So for instance, my PI claim on "The Feet-apart-arms-joined-straight-out-in-front-pistol-pointed-forward-eye-line d-up-for-the-shot Assassin (TM)" would still be valid, because that's a character I can demonstrate owning. Martin L. Shoemaker [EMAIL PROTECTED] http://www.TabletUML.com -- The UML tool you don't have to learn! _______________________________________________ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
