Let’s Take A Minute to Talk About D&D’s Updated Open Game License (OGL 1.2).
Hi all! My name is Noah Downs, aka MyLawyerFriend! I am a licensed attorney with a focus on business and intellectual property issues in the tabletop and digital gaming industries.
Wizards of the Coast (“WotC”) published a draft version (version 1.2) of their new Open Gaming License (“OGL”), after the strong community response and objection to the leaked version 1.1 (see my previous breakdown here). Wizards of the Coast is apparently seeking community feedback on this draft version, so I want to take a few minutes to identify 1) what the new OGL needs to have to protect the community, and 2) what the proposed new OGL actually has.
OGL Basics
As with my last article, let’s get some terms out of the way.
Work
A copyrighted work (or, for simplicity, “work”) is an original creation (such as a graphic, book, video, song, or program) that can be protected by copyright law.
Copyright Holder
A Copyright Holder is the person who holds the rights to a specific Work. This can be the author of the Work, or whoever received ownership from the author.
Open License
Copyright Holders can choose to issue an open license to their Work if they want others to freely build with, customize, or improve the Work. Open licenses give permission to anyone to use the work without cost and minimal restrictions on modifications.
Creative Commons License
A creative commons license is a version of an open license that enables the free distribution of otherwise copyrighted Works. Wizards has elected to use the Creative Commons Attribution 4.0 International license for the core D&D mechanics — which may be fairly meaningless, because core mechanics of a game are generally not copyrightable.
Perpetual License
A Copyright Holder can issue a perpetual license — which is a license to use the Work indefinitely. This only means that the license does not have an inherent expiration date. It can still be terminated or revoked.
Virtual Tabletop
Virtual tabletops (VTTs) are programs designed to allow users to recreate an environment to play tabletop games online. Notable VTTs include Alchemy RPG, Roll20, and Foundry VTT.
Revocable License
A license can be revocable or irrevocable. If a license is irrevocable, then it cannot be revoked by the Copyright Holder. If a license is revocable, then it can be revoked by the Copyright Holder. If the license does not say it is irrevocable, then it is revocable by default.
Third Party Creators
Third Party Creators (in this case) are individuals or companies that make their own works based on a Copyright Holder’s Open License to a Work.
What OGL does the community need?
The community response to OGL 1.1’s leak (and the #OpenDnD, #DnDBegone, and similar movements) made it very clear what any new version of the OGL needed.
1 . The OGL needs to be an irrevocable, perpetual license. This allows Third Party Creators to confidently publish their Works using D&D as the base system, without fear of losing their business if WotC changes course down the road. OGL 1.0a was not expressly irrevocable — which is what WotC is relying on to revoke it.
2 .The OGL cannot contain terms that give WotC a license to Third Party Creator’s Works. WotC is a monolithic company, and has the power to exploit those with softer voices in the industry if left unchecked. The proposed OGL 1.1 contained a license from the creator to WotC that would have allowed WotC to republish the Third Party Creator’s Works without additional permission, royalty, or credit — not great.
3. The OGL cannot contain a royalty on Third Party Creator’s Works. This is fairly self-explanatory — and was one of the community’s primary concerns with OGL 1.1. Third Party Creators work on fairly tight financial margins already, and royalties back to WotC after years and years of no royalties is exploitative.
4. The OGL needs to allow Works published under OGL 1.0a to remain under OGL 1.0a. This preserves the libraries of Works already published, and ensures that past licenses are not revoked.
5. The OGL needs to expressly allow for Virtual Tabletop (VTT) companies to host D&D-based Works from Third Party Creators.
What is in draft OGL 1.2?
Overall, WotC clearly listened to the community’s feedback here. A quick review of the OGL shows the following:
Effect on OGL 1.0a. OGL 1.0a is expressly revoked here, which goes against what the community wanted from the beginning. This does allow any Works published under OGL 1.0a to remain published under OGL 1.0a — but new Works must be published under this proposed OGL 1.2.
What Does It Apply To? This only applies to printed media and static files (such as e-publications and .pdfs). Typically these take the form of items, adventures, settings, and compendiums published via Kickstarter or Patreon from Third Party Publishers. This expressly does not affect WotC’s Fan Content Policy — so your favorite podcasts and actual-plays are safe for now.
Section 2 — License. The new OGL is perpetual and non-exclusive. This is fantastic. However, it expressly does not state that it’s royalty-free. This is not fantastic. It also states that it’s only partially irrevocable — Works made under the license will always be under the license, but the license itself can be withdrawn.
Section 3- What You Own. Third Party Creators would own their content, and there is no license back to WotC. However, if WotC “makes something similar” to a Third Party Creator’s Work, then that Third Party Creator can’t prevent WotC from distributing the similar Work. The Third Party Creator can only sue WotC for money lost as a result of WotC’s distribution.
Section 6(c)- No Infringement. This section is a statement from Third Party Creators to WotC promising that the Third Party Creators’ Works will not unlawfully steal or borrow content from anyone else’s Works. This is generally fine, however, it doesn’t protect Third Party Creators who unknowingly or unintentionally use someone else’s Works.
Section 6(e)- No Illegal Conduct. This section is a statement from Third Party Creators to WotC promising that the Third Party Creators’s Works will not violate the law. Again, generally fine — however, it should be limited to the laws that apply to that Third Party Creator. Laws are different from place to place, and it’s unreasonable to require someone in Alaska to know if they’re violating the law in Ecuador.
Section 6(f)- No Hateful Content or Conduct. This section is a statement from Third Party Creators to WotC promising that the Third Party Creators’s Works will not include hateful content, and that the Third Party Creator will not engage in hateful conduct in their personal or professional lives. This is a great morality clause, except that WotC has the sole right to decide what is hateful here, and the Third Party Creator gives up all rights to fight that decision. That’s too much power.
Section 9(h)- Review by Counsel. This section advises everyone agreeing to this license to consult a lawyer. This is fairly standard, but I highlight it because I agree — Third Party Creators need lawyers.
Virtual Tabletop Policy. The proposed OGL 1.2 does not expressly address Virtual Tabletops, but instead relies on the new Virtual Tabletop Policy (which is also open for feedback). This Virtual Tabletop Policy expressly allows for Virtual Tabletops to continue to operate — but does prohibit immersive experience Virtual Tabletops. That means that if you have a Virtual Tabletop that enhances the Virtual Tabletop experience beyond what you would have a physical tabletop (such as with animation or depictions of spells) then that Virtual Tabletop is not authorized by WotC to contain assets from the SRD 5.1, under this policy.
What does this mean?
As this unfolds, keep in mind the following:
1. The license is not expressly royalty-free, even though it does not contain royalty language. It needs to be expressly royalty free.
2. The license gives WotC broad rights to suppress Works they deem “hateful” — which is usually ok, but should be subject to some sort of good faith on WotC’s behalf. Also, Third Party Creators need to be able to challenge WotC as to what constitutes “hateful” so that WotC cannot abuse this power.
3. This license is revocable and can be replaced at a later date — which prevents the community from truly building a foundation on it. We could find ourselves just as easily in the same situation at any time.
Do not mistake me — this is a massive step forward from the proposed OGL 1.1. Congratulations to the community for making your voices heard, and thanks to WotC for listening. However, we still have work to do. WotC needs to address the remaining issues above (especially inserting full irrevocability and express “royalty free” language into Section 2) before this OGL is in a good place to sign. Let’s keep moving forward to #OpenDnD, and make sure WotC hears your feedback over the next weeks.
Disclaimer: The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from Premack Rogers PC or Noah Downs individually, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction. This post is not intended to create an attorney-client relationship in any way. Any particular outcome is based on the facts and circumstances of each particular case and the applicable laws of your jurisdiction.
