<<>Again, consider recipes.
I can only do that if the recipes of which you speak are released under the
OGL. Otherwise, a less specific set of circumstances and conditions would
likely apply.
>>
dude, I wrote that in response to this quote from you: "My point is not that you cannot express something that is in public domain in your own way and then declare it as PI."
My point was that there are things which are in the public domain. Then there are collections of public domain things that somebody creatively gathers together. Those creative gatherings of public domain items can have copyrightable content. Things with copyrightable content can be potentially released under the OGL and designated as PI provided that such releases do not conflict with the PI of somebody else in your section 15. The point to note that you are acting like Spell Names are all either:
a) public domain and not subject to PI
b) automatically forced to be OGC
Setting aside the question of whether individual spell names are subject to PI, certainly collections of spell names associated through creativity with spells are most definitely NOT in the public domain. The creativity required to construct a set of those names turns the collection in copyrightable (i.e., not public domain) material. Now, there's no clear definition in the OGL about "ownership" which seems to be a pre-requisite for PI declaration. But even I, a notorious devil's advocate about the myriad alternate readings that can be applied to minutiae in the OGL, would not stretch so far as to claim that the copyright owner of a list is not that list's owner (in terms of IP law) within the United States. That seems to be sufficient to declare these items as PI if any spell name collection could be declared as PI. And low and behold, the definition of PI includes "the names of.... spells" as something that can be designated as PI.
Note that the inclusion of any significant quantity of somebody else's stuff into a work covered by the OGL would, under Title 17, render the ENTIRE TEXT a derivative work. Now, that text may have non-derivative parts as well as derivative parts. However, my reading of the OGL is that the default OGC status of derivative works is just that, a default status. OGC, however, excludes PI, and a reading of the license suggests that although your new game is derivative of the WotC SRD, your value added contributions, since they would be copyrightable under U.S. law, are eligible, very often, for PI designation. So, that even with in works that are nominally derivative, value added portions can be declared as PI.
By your logic (which is quite extreme), since the word "the" has been used in OGC, any phrase, trademarked or not, which contains the word "the" could never be declared as PI, and it would automatically open that trademark to mandatory OGC declaration were it used with the OGL. That so violently clashes with the intent of the OGL that I can't possibly accept that it was the intent of the license.
<<...where that PI is valid, yes. The crux of my debate is in regard to the
nature of PI and its potential to be invalid on the basis of being
"Derivative Material" which I believe trumps a declaration of PI and renders
that declaration invalid.
>>
Read that definition closely. My reading of Title 17 (and others disagree) suggests that if you include in your work a portion of somebody else's copyrighted material that goes beyond fair use, you have just created a "derivative work". If that's a reasonable inference, and I believe that it is, then your reading would assume that there would be no such thing as PI in any work that was not 100% created by you (i.e, if you had anything other than the license itself and your own work listed in your section 15).
Is that what you are suggesting?
Lee
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