<<Agreed on all of the above. But it doesn't solve the problem,
because the WotC OGL appears to allow you to claim as PI things that
*don't* pass muster, according to what you've written above. It
doesn't just say you can claim the distinctive likeness of a
character, /in toto/, it also says you can claim just the pose.
*That's* the point of contention/confusion.
>>
The only possible way you might be able to justify some of the more abstract PI protections where ownership of the PI is defined under copyright laws (instead of from some super secret, unreleased definition of PI ownership that should have been in the license but was omitted) would be as follows:
You note that the character as a whole is copyright by you. You agree to license the character description but not the name. Assume that the name is not trademarked for the time being. You pray that a court will find that there is some copyright protection for an uncopyrightable name paired with a copyrighted but 100% licensed description. Through that copyright on the pairing you declare that the licensee is not authorized to recreate the pairing of the name and the description, and note that you have therefore PI'd the name of your character.
Now this is based on a very, very fragile claim that you can claim infringement when somebody pairs an uncopyrightable name plus a 100% licensed description. Clearly, it's easy to claim copyright over the pairing when the name is paired with _unlicensed_ text. However, with a licensed description you can't claim infringement over the description (it is licensed), and you can't claim infringement over the name used in isolation (it is uncopyrightable), but you _might_ be able to claim infringement over the pairing of the two even though each used in isolation would not support a claim of copyright infringement when used in conjunction with the OGL.
In general you can claim copyright over an uncopyrightable collection of items if it is sufficiently distinctive (even when you can't copyright the elements). So you can copyright a recipe book even when you can't copyright any recipe in the book. However, a person reprinting a recipe or two from the book wouldn't commit copyright infringement in doing so. It is unclear whether or not the pairing of two items (an uncopyrighted name and a copyrighted, but licensed description) itself has any copyright protections.
It must to protect a character name as PI _if_ one assumes that the only character names which are protected are those which are protected as trademarks or as copyrighted material to begin with.
If you assume you can PI things that you do not "own" under copyright law or trademark law, then the above limitations do not apply, but then you've got to answer the question, "by what right do you claim ownership necessary to declare a character name as PI?"
Lee
