<<I am not so sure. If the PI "Stone Mace" was maintained to be a "thematic
element" >>
Why would it have to be a thematic element when "language" (which I read to mean "verbatim text"), "ideas", and "spell names" are all eligible to be declared as PI.
If "Stone Mace" is a piece of equipment (rather than a spell) then "equipment" is on the list of PI possibilities.
Certainly if your "Stone Mace" refers, in context, to a specific "Stone Mace" in your world, or a specific piece of equipment, or a specific spell, then you have lots of grounds to PI it.
Now the question becomes do you "own" the thing to be PI'd. Well, since the PI list includes things that can't be owned as trademarks (to my knowledge) or copyrights, that definition must be broad. Unfortunately there is no definition for that key term.
That brings up the question of how you can ever own an "idea". You can own a patent on a process. But that's not the same as owning an "idea". Yet that's a thing on the PI list.
That's a potential gray area in the definition of PI for all uses, as far as I'm concerned. It has been discussed ad nauseum by me and others in the archives. I direct you there.
<<
PI (if one contends that a Feat is considered a "special
ability" since the name of a Feat is not specifically mentioned as being
able to be declared as PI),>>
Since Feats are generally "exceptional abilities" or "magical abilities" or "supernatural abilities", I don't think this is much of a stretch to assume that they are "special abilities".
<<Our difference of opinion seems to lie in that final phrase the "Product
Identity" defined term, and the definition of "Derivative Material".
>>
Since the definition of Derivative Material notes that it includes "Derivative Works" and since the license includes the phrase "including translations and derivative works under copyright law", we can and should read in the definitions section of Title 17 when constructing what is and is not a derivative work.
<< I do not believe it limits redress to mechanisms
within the license in cases where someone has not met the terms of the
license.>>
Of course not. So. So you sue someone for breach of contract. It's as simple as that. Now you are then turning over to a (hopefully) impartial third party (a judge) the right to interpret the contract and say who is right and who is wrong.
<<
As such, if a PI claim is felt to be
"Derivative Material" and potentially misused by the terms of the license,>>
If those examples were found to be derivative of the SRD, nobody would use the OGL ever again unless they did 100% original work or had nothing to protect.
The core area of challenge would be that your use of PI cannot preclude people from using something that's already available to them as OGC in any product in your section 15.
It can stop them from making certain future developments or creations if they want to use your stuff (at least by one reading of the license, which is not the only reading), but you can't stop someone from using what's already there.
<<
To use a separate example, if someone claimed "Necromancer Games" as PI in
their publication wouldn't the most efficient avenue for redress be to bring
suit against them directly in regard to the trademark as opposed to
challenging their PI declaration directly?
>>
You'd do both. Lawyers, if they have an option, rarely rely on only one point in a suit.
<<This is essentially the crux of the difference of opinion we have. I do not
share your view of the definition of "Derivative Material" in so far as a
name of a thing that uses a name that is in the SRD and when the description
of a thing so named also uses in its description material derivative of
material in the description of the thing that is named in the SRD.
>>
Dude, if every word in the SRD was deemed to be excluded from usage in PI, then I imagine "Necromancer Games" and "Green Ronin" couldn't be protected as PI. Nor could "Dungeons and Dragons". Because (and I haven't checked) I imagine "necromancer", "games", "green", "dungeons", and "dragons" are all used in the SRD.
If you are talking about being derivative of specific words or phrases then you should tighten up your argument and provide additional specificity.
Lee
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