RE: [Ogf-l] PI in summary...
Title: Message In the case of the Greek gods you mentioned, you don't have the right to declare the names PI - you didn't create the names. You can declare your WRITE-UP of the Greek gods PI, but another publisher could do their own writeup - meaning create their own version of the Greek gods - and that is a separate creation from yours and thus they can declare what they wrote as PI. You can only declare your original creations which are not derived from the SRD to be PI. The declaration has an ownership element to it - if you don't own it, you can't declare it.
RE: [Ogf-l] SRD 3.5 Available as PDF
Mark, you're a wonder! Danke! -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Vintyri Project Sent: Thursday, July 31, 2003 12:50 PM To: [EMAIL PROTECTED] Subject: [Ogf-l] SRD 3.5 Available as PDF As a public service to other d20 System (R) designers, the Vintryi (TM) Project has issued a new, *free* publication in PDF format called "License Documents" 1.0. It contains: -- The new Version 3.5 of the d20 System Reference Document (SRD) -- The d20 System Guide 2.0 -- The d20 System License 3.0 -- The Open Game License 1.0a All of these items are thoroughly bookmarked to ease searches. The download file contains the PDF-Book and the public domain fonts to install before using the book. DATA: License Documents 1.0 contains 1,196 Pages. License Documents 1.0 is a 4.9 MB PDF file. The download file LICSDOCS.ZIP is 5.1 MB in size. To download, please use the address in my signature and the License Documents menu entry. Mark Oliva in Bavaria [ mailto:[EMAIL PROTECTED] ] Internet: [ http://www.steigerwaldedv.com/vintyri ] ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
RE: [Ogf-l] "D20" as Product Identity
Title: Message Well, until the issue is resolved, another legal doctrine comes in to play. Since you know or reasonably should know that this ambiguity in the contract presents a possible danger to your intellectual property, you have a duty to mitigate your damages and not put anything at risk by making a declaration that is outside the clear elements of the license or clearly protected by existing copyright law. -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]Sent: Thursday, July 31, 2003 11:21 AMTo: [EMAIL PROTECTED]Subject: Re: [Ogf-l] "D20" as Product IdentityThe "ownership" requirement for PI declarations does not provide a definition of ownership, but it provides a laundry list of PI elements, many of which can't be traditionally "owned" under trademark or copyright law.Lee
RE: [Ogf-l] "D20" as Product Identity
-Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of woodelf >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. Right. It's poorly written and someone needs to be clopped upside the head with a big foam cluebat. Individually, there is no way those things could be enforceable declared PI. ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
RE: [Ogf-l] "D20" as Product Identity
-Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Martin L. Shoemaker >Lee is looking to understand -- based on the language in the license, not just stated intent -- which is correct: Well, there's a reason appellate courts look at original intent - if an interpretation of the wording is at cross purposes to the intent, chances are that interpretation is not correct. I understand his reasons, but the stated intent is fundamental to a correct interpretation. ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
RE: [Ogf-l] "D20" as Product Identity
-Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Martin L. Shoemaker >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." Maybe I missed something, but I've always interpreted PI that way. Part of standard language for protecting fictional characters is the phrase 'the distinctive likeness thereof'. Bugs Bunny, for example, CANNOT exist as an intellectual property if the distinctive likeness of the character is excluded. He isn't just any rabbit, in any pose. He is a 6' tall, grey, bipedal rabbit with buck teeth. Only the whole package - name, likeness, pose, mannerisms, character concept, voice - viewed as a whole has enough gravitas to establish a viable claim. That is why, I believe, those items are specifically included in the list of what can be declared PI. They are there to allow someone who creates a character, AND A VISUAL DEPICTION of that character, to protect that character as PI. The stance Martin described can't be protected on it's own - only in the whole of the depiction of the PI character of Martin the Assassin (tm), Taker of Life from the Infernal Pit of Hoboken in the Grey Wastes of Hades on the Jersey Turnpike (tm). At that point, all these nebulous things exist in a specific, concrete form - the distinctive likeness of Martin the Assassin (tm), which IS something that is owned under the standard definition in existing law and which does constitute an enforceable claim of PI. The distinctive likeness is separate from any specific artwork the character appears in - a piece of art is protected, but only that particular work; copyright does not protect the characters in the depiction by the depiction alone. Copyright on the art doesn't prevent another artist from using the same characters in their own art, it just prevents the other artist from duplicating your work and claiming it as theirs. The protections on distinctive likeness, however, do prevent someone from creating an original work of art that uses your character without your approval. That's why I can't take a Poser figure of Bugs Bunny and animate a porno film with him and Marvin the Martian - the distinctive likeness of both characters is protected. Of course, I could be wrong. Bryan ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
RE: [Ogf-l] "D20" as Product Identity
-Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] >Either PI is a subset of copyright and trademark and "ownership" (a prerequisite for PI) is established under those bodies of law OR it must be true that PI goes beyond those bodies of law, and in going beyond those bodies of law, it must contain items which can be "owned" as PI, but not as a copyright or trademark. The license is a contract which describes how we may use WoTC's copyrighted works and how others may use ours. I said they're separate animals because concepts of OGC and PI have no meaning outside of the license. Anything not declared OGC or PI is covered under standard copyright, and the whole of the work is protected by standard copyright law as well. Copyright law does not protect some things that WoTC wanted protected, so a clause was created which defines how things not covered under copyright law will be handled *under this license*. If you want to use the license, you agree not to do these things, and you agree that you will not use these other things in your creation. In return for that agreement, these things over here are yours to use. 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. ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
RE: [Ogf-l] "D20" as Product Identity
Title: Message Your buddy's work would be handled separately, in your copyright/legal section - the one in the front of the product that goes "this work is copyright 2003 by . all rites reversed, prosecutors will be violated". You would have to add "The description of New Jersey as 'the grey wastes of Hades' is based on "Please God, Kill Me Now" by my friend Mike, copyright 2003 by Go Ahead And Shoot Him Press, and is used by permission. Section 15 just uses your normal notice for your product. Your OGL/PI declarations, however, would be something like "All descriptions and references to New Jersey as being an Earthbound layer of the Abyss, filled with tortured souls screaming for the sweet mercy of death, the mutation effects of New Jersey's water, and the descriptions of various poxes which plague the residents are used under license and are never OGL, no matter where they appear, unless included in a 10% grey shaded paragraph which appears as commentary by our narrator, Tanya the Hooters Succubus." Just be very, very sure that Mike's work is prior art. If it isn't, go with something like "The Ashen Wastes of Hades". If you don't like that, watch a couple of episodes of 'Trading Spaces' that have rooms by Hilde SantoThomas in them, and the horrific adjectives will be flowing like water in no time. Bryan -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]Sent: Wednesday, July 23, 2003 5:33 PMTo: [EMAIL PROTECTED]Subject: Re: [Ogf-l] "D20" as Product IdentityIn a message dated 7/23/03 7:18:22 PM Eastern Daylight Time, [EMAIL PROTECTED] writes: <>>I don't need to.Why would I? I wouldn't need to Section 15 any source which I draw info from which wasn't, itself, covered under the OGL.Lee
RE: [Ogf-l] "D20" as Product Identity
>>I think Ryan raised some interesting points, but his conclusion that you can just "source in" stuff from the public domain seems to blow out of the water all poses, themes, concepts, and other things that can't be copyrighted but which are on the PI list altogether. OGL & PI are completely separate animals from copyright. This is a contract in which you agree to place a portion of your creation in the public domain. Copyright and PI/OGL are apples & oranges. Poses, concepts, themes, etc. - these can be PI'd in order to create protection for aspects of a product that, indeed, can't be copyrighted. I do my artwork in Poser. If I create a rendering in Poser that effectively duplicated the cover of UA and use it on my book "Topless Drow Gangbanger Babes", under copyright law WoTC has to pound sand, because my cover is an original creation in a totally different medium, which happens to express a theme in common with the UA cover. Under PI, I'm screwed. We'll ignore the trade dress issue entirely. By using the same pose, the same theme, and the same concepts (ie, the clothing as a means of expressing the concept of the 'gangbanger' lifestyle), I have trespassed into territory they clearly own, and either they laugh it off or I destroy my print run. Ryan's position that I can bring in portions of PI from public domain does not contradict this - I can use three girls, I can use three drow girls, and I can use three drow girls in gang wear posing like the original Charlie's Angels. I can use public domain sources to bring in everything in the original picture. But I cannot DUPLICATE the picture, as a complete work. Three topless drow girls in lederhosen waving lightsabers, in the same poses at the WoTC cover? Same pose, different theme, different concept. Different PI. And I'll sue anyone that infringes MY picture, too! ;-) Bryan ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
RE: [Ogf-l] "D20" as Product Identity
-Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] >Ownership is one of the fundamental requirements for making a PI declaration. It's in black and white in the license. Yes, it is. Which is why you can have multiple products with "Thor" in them - all anyone can claim is ownership of a specific presentation of a discretely conceived and uniquely described interpretation of a being by that name. However, if you make that specific presentation PI (it is a character, and thus protectable under PI), another person cannot use that character without permission. They can create their own unique character, and call it "Thor", but it cannot be an identical creation, even if sourced from the public domain. An identical creation (and by that I mean the creation as a whole) which attempts to declare PI what you have already declared to be your PI, cannot be valid under the license, since the clear intent of the license is to protect the PI of the material's creator. Another publisher might say they created their presentation out of whole cloth, but if they are claiming ownership of a thing that is *identical* to something another person created and claimed earlier, their claim of whole cloth creation is a distinction without a difference. If their creation cannot be differentiated from yours, then they are trying to claim your work, no matter what they say the source is. Any interpretation which allows duplication of a work by another with no protection or recourse for the originator of the first work must be an incorrect interpretation, otherwise the license is meaningless and totally unenforceable. One point about interpreting things like this: the courts have no more guideline than the layman when it comes to such issues. For that reason, courts frequently look at what the clear intent of the license is. The intent of the d20 license, clearly, is to allow use of portions of an original creation while respecting the sovereign right of the creator to maintain control of the remainder of that creation. Bryan ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
RE: re[2]: [Ogf-l] Independently Designed OGC/PI Clashes
-Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] >The fact that 3 publishers all used the same term (sometimes to refer to different things) basically told me that for some feat names, spell names, etc. somebody is going to eventually get somebody's chocolate in somebody's peanut butter. >What kind of liability issues are created? The same kind of liability issues that arise if PI is deliberately infringed. The OGL tells us how to play nice together and what happens when someone will not play nice. If you believe, in good faith, that your PI has been violated, and the other party believes, in good faith, that they properly used only Open content, then it's time to negotiate or go to court and hand your fate over to a third party. In your fact pattern, both parties are correct. If the violating party's creature is prima facie identical to the injured party's creature, though, the violating party has a decision to make - is it worth the risk? PI protects the totality of the designated material, and the violating party is going to be facing the possibility of having to destroy all of the other creative work that went into that product in order to cure the alleged violation. Also, people who are using the questionable material for their products may find themselves forced to change or destroy their product to cure a violation that wasn't their fault. They might have standing to sue the violating party for negligence as well, since the defendant failed to exercise the required due diligence. I think most publishers will negotiate rather than roll those dice. Bryan ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
RE: re[2]: [Ogf-l] Independently Designed OGC/PI Clashes
-Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Mike Dymond >In any case in trademark law this would be irelevant, all that is relevant is whether a consumer could be confused by the two uses and in a market this small I would guaratnee that a court would rule that there would be confusion. Independent development is most certainly relevant! Why do you think established musicians refuse to listen to or evaluate music for musicians that are trying to break into the business? If Johnny Guitargod publishes a song and Bobby Fanboy sues, claiming to have sent Johnny that song years before, Johnny's only defense (especially if the songs ARE similar) is independent development. He can acknowledge that he might have received a copy of the song, but has to be able to state that his policy is to protect himself by returning all music submissions unopened. >> So, what you are saying, is that if you PI the name "John Smith", and >> someone doesn't even Section 15 your product, you feel that you have a >> case in court to stop anyone else from using the character name "John >> Smith" in an OGL product. Am I understanding you correctly? >If you read the clauses about PI then yes that is exactly what it is saying. Sort of. Declaring the character name, everything written about the character, and the distinctive likeness of the character PI prevents another author from using what you create without permission. The key there is "what you create". If Bob the Publisher sends out a product with an NPC named John Drake (a burnt-out schoolteacher) and I do a product with an npc named John Drake (a teen prodigy who is now a transvestite web designer), neither of us has a claim on the other - and the folks that own the rights to John Drake, the character in the '60s series "Secret Agent Man", don't have a claim on either of us. It is the entirety of the character that is protected by PI. A name is part of the character, and a strong argument can be made for names that are created by the author. The more unique and unusual the name, the stronger your PI claim. Harvey Lightfeather Codswallop McPuffelwomp is a lot easier to protect than John Smith. Merely using a name and declaring it PI is not enough to keep others from using the same name. It has to be a unique product of your creativity in order to be protected. If I can find your character's name in the phone book and our characters have nothing else in common, you have no standing for a PI claim. Besides, rather than trying to find ways to weasel around existing PI declarations, publishers should be creating their own PI and concentrating on making sure it's the highest quality they can make it. Bryan ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
