Did Dungeons and Dragons change the copyright world?
Most companies use copyright licenses to strictly control the reproduction of intellectual property; the makers of Dungeons & Dragons went another way. Through the Open Game License, Wizards of the Coast created a community and a new standard for content-based licensing that contract professionals can learn from.
The Open Game License helped grow this and other gaming audiences. It changed the industry twenty years ago and is still working today. #ContractTeardown Click To Tweet
In 2000, The Wizards of the Coast released the Open Game License. The company’s goal was to grow their audience for the niche role-playing game Dungeons & Dragons. The license allows fans to create stories and scenarios that incorporate ideas, mechanics, and characters from Wizards of the Coast. In this episode of the Contract Teardown show, Attorney Bob Tarantino explains how their Open Game License changed the industry and exploded D&D’s popularity by prioritizing a community that creates, remixes, and shares open content.
Questions In This Episode
- How does the Open Game License make repurposing content easier?
- What is unique about the license’s structure?
- How do the open game content and product identity buckets work?
- How does the Open Game License treat trademarks?
- Does open game content remain open?
Open Up Content Rather Than Lock It Down
According to Tarantino, the Wizards of the Coast did not want to lock down their content through aggressive policies and enforcement measures. Instead, they created this innovative document to open up their content and make it available for others to use.
Under the Open Game License, users can take their newly created content and give it to others or monetize it by sale and sub-licensing. Dungeons & Dragons is a text-heavy game. The three rulebooks alone are more than 300 pages each, so the content available is thousands and thousands of pages. The Wizards of the Coast used the Open Game License to spread openly licensed content throughout the community, causing tremendous audience growth. This license is also short but powerful. It accomplishes its goal in less than two pages.
Wizards of the Coast did not want to lock down their content. Instead, they created this license to make their content available for others to use. #ContractTeardown Click To Tweet
How the OGL is Different than other Open Content Licenses
Most open source licenses are all or nothing. They either license all of the content, or they don’t. A good example is the Creative Commons license that licenses all the content with certain restrictions and parameters.
The Open Game License is different. Some of the content is open, while some of the content is not. The licensor defines the content as either Open Game content or Product Identity. Open Game content is open; Product Identity content is not.
Product Identity – The Excluded Bucket
Tarantino explains that the ability to use the content depends on the bucket in which you place it. For example, some content is meant to be shared, like storylines, characters, and rules. This content is in the Open Game content bucket. The Wizards of the Coast want you to use this content and spread it into the world.
Protected and non-shareable content is put into the Product Identity bucket. This content cannot be shared. Once defined as Product Identity content, it is in the “excluded” bucket. Product Identity customarily includes items like trademarks and images. In fact, when you create D&D content under the Open Game License, you agree to a higher level of trademark protection than is typical under most countries’ intellectual property laws. If the content is defined as Product Identity, you cannot use it, even if trademark law would otherwise allow its use.
Wizards of the Coast's open gaming license uses product identity and open game content buckets to help disseminate content to the community. #ContractTeardown Click To Tweet
Anybody Can Use the Open Game License for Their Businesses
The Wizards of the Coast designed the license so anyone can use it for their own content. Released in the early 2000’s, the license itself was disseminated and the gaming community has used it for all kinds of games and content. As a result, the past twenty years have seen an explosion of material created by different consumers and companies.
You Must Include the Notice
The Open Game License contains a notice stating that you can only use this license under all the terms of the license. You can’t add or subtract anything to the license, and you must include this notice with the license.
This term applies to all content licensed under the agreement. When someone uses content under this license and disseminates it to others, they are assumed to have accepted the terms of the Open Game License and must include a copy of the notice.
|This License applies to any Open Game Content that contains a notice indicating that the Open Game Content may only be Used under and in terms of this license. You must affix such a notice to any Open Game Content that you Use. No terms may be added to or subtracted from this License except as described by the License itself. No other terms or conditions may be applied to any Open Game Content distributed using this license.|
Open Game Content is Always Open
The notice obligates future users to the terms of the license. That may not sound like much, but it is powerful. When someone uses the open content to create their own content, they must attach the license and the notice when they sell or disseminate the new content. As a result, open content must remain open for all future users.
How Broad is the Scope of the License?
The scope of the Open Game License is incredibly broad. The license is perpetual, worldwide, royalty-free, and not exclusive. You never have to worry about your license expiring or any jurisdictional issues. You never have to worry about making a single royalty payment even when you monetize your content.
The Wizards of the Coast provided this content free under the Open Game License. For example, you can download the rules, subject to the terms of the license, bind them in a beautiful hardbound book, and sell the book for profit. The license is royalty-free, so you keep the proceeds. But you must include a copy of the license and notice with the new content.
|4.||Grant and Consideration:|
|In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content.|
What Survives Termination?
This license will automatically terminate if you fail to comply with all the terms and fail to cure the breach within 30 days. But all sublicenses underneath this license survive this termination. So you never have to worry if someone upstream of your license violates a policy and gets terminated. Your license, and all sublicenses below you, survive that termination.
|This License will terminate automatically if You fail to comply with all terms herein and fail to cure such breach within 30 days of becoming aware of the breach. All sublicensee shall survive the termination of this License.|
Still Strong 20 Years Later
Instead of locking down their content so no one outside the company could make money with it, the Wizards of the Coast did the opposite. They made much of their content available to others who could mix it with their own content and share it with the world. They could even make royalty-free money with their remixec work. Twenty years later, the gaming industry has changed. Rather than fight for exclusivity against the communities that naturally arise around gaming, companies now seek ways to encourage and empower those communities. They grow by sharing content, commenting on it, building upon it, and re-sharing. The Open Game License not only allows for this, but it encourages it.
The company’s original goal of growing the Dungeons & Dragons audience has been more than met—there are currently more than 40 million Dungeons & Dragon players, repurposing and monetizing Wizards of the Coast content through more than 4.3 billion minutes of gameplay on sites like Twitch.
The Open Game License helped grow this and other gaming audiences. It changed the industry twenty years ago and is still working today. All this comes from an Open Game License that is less than two pages long—powerful contract language in the right place at the right time.
THE CONTRACT: Wizards of the Coast Open Game License
THE GUEST: Bob Tarantino is Counsel at Dentons Canada LLP, in the Media and Entertainment Group. He focuses his practice on the interface between the entertainment industries and intellectual property law.
THE HOST: Mike Whelan is the author of Lawyer Forward: Finding Your Place in the Future of Law and host of the Lawyer Forward community. Learn more about his work for attorneys at www.lawyerforward.com.
If you are interested in being a guest on Contract Teardown, please email us at email@example.com.
Bob Tarantino [00:00:00] Part of the challenge is when people hear things like intellectual property, their immediate sort of reaction is ‘a property’. That means I can control it and I should exclude other people from using it and that should, you know, make sure that I lock it down in some way. And what this story, what the open game license and its history over the last 20 years really demonstrates, as we’ve seen in many other industries, is the value of opening up.
Intro Voice [00:00:26] Welcome to the Contract Teardown Show from Law Insider, where legal experts tear down contracts from some of the most well-known companies and high profile executives around the world.
Mike Whelan [00:00:39] In this episode, Bob Tarantino, IP counsel, the Dentons and certified super nerd, brings us the open gaming license from Wizards of the Coast. The open gaming license is a contract tool that help games like Dungeons and Dragons explode in popularity. And it’s an example of how companies can increase community engagement by selectively letting go of intellectual property protections. We lawyers might learn a thing or two from this gamer culture. So let’s tear it down.
Mike Whelan [00:01:09] Hey, everybody, welcome back to Law Insider’s contract takedown show. I’m Mike Whalen. On this show, we do exactly what it sounds like. We take contracts and we beat them up. We occasionally even say the things that we like hanging out with smart friends like my friend Bob. See Bob, What I just had to do, because the screen is backwards, I have to like you’re actually over there. It’s very confusing people, this technology. Bob, how are you today?
Bob Tarantino [00:01:35] I’m good, Mike. Thanks for having me on the show. A big fan of your work on the contract teardown so I’m excited to be here.
Mike Whelan [00:01:40] Crap. I want you to really lower the standards. Where are you? You’re in Toronto. Are you in Toronto?
Bob Tarantino [00:01:45] I am.
Mike Whelan [00:01:46] Toronto is freaking cold there right now.
Bob Tarantino [00:01:49] It’s so cold. Craziness. I like to live here.
Mike Whelan [00:01:53] Yeah. I’m like a week away from the the catastrophe that’s come. And guys, we are going to talk about something that’s really fun today. This fun for me, OK? Fun for a certain kind of person. If we’re being honest, we are talking about this document that I want to show you guys real quick. You cannot tell looking at this what the heck this thing is. So I will show you the context. It’s this it is a Dungeons and Dragons related. We’re talking Dungeons and Dragons and contracts. This is like the nerd, you know, Venn diagram is like a complete circle right now. So we’re pretty excited about this. Bob, I want to start this by telling you the briefest of stories. One day I was coming back home from the airport, got an Uber. This is in the before times when you could go to airports. I got a number and I’m talking to my Uber driver. And I asked them, like, how’s business? How’s money? You know? And he said, well, I’m not as concerned about my driving money because I make money writing D&D stories. And I was like, the freak. What is this thing? I found out this whole world exists of writing content, additional stories and making money off of it. That’s what we’re talking about, guys. Bob, what is this document? How does it impact my Uber drivers life? How does it impact the contract lawyers lives that are watching this thing? Why are we looking at this deal?
Bob Tarantino [00:03:17] Sure. So we’re talking today about the open game license, which is a really innovative document that Wizards of the Coast introduced in around the year 2000. And what they did was essentially they applied the concepts of open source software licensing to their game content. And they said essentially what we want to do is we want to open up our content rather than lock it down through sort of aggressive copyright policies and enforcement measures. We want to open it up and make it available to people so that they themselves can play with that remix it, create with it and disseminate the things that they create. And exactly what your Uber driver has done is what hundreds of thousands, if not millions of other people over the last twenty years have done with this content. And they’ve really created this amazing world wide community of people who create and share their content. And it’s all possible because of this license.
Mike Whelan [00:04:10] Yeah, as Seth Godin often says, the threat is that you’re irrelevant, not that you’re copied. And so these companies are having to figure out how to remain relevant by allowing people to to use these things. And we’ll talk about the principles behind that. But before we do, Bob, I wanted to ask about your background. Why are you the person I’m coming to for this full circle nerd Venn diagram happening?
Bob Tarantino [00:04:33] Sure. So, I mean, we’ll start with the fact that I’m a nerd. So I played D&D when I was a kid. It was a big fan of it. And then about six or seven years ago, I decided I wanted to do my PhD. I’m an entertainment lawyer here in Toronto. So my daily kind of existence is dealing with intellectual property licensing and content creation and dissemination. Basically, I help people create the things they want to create and monetize them and exploit them. And get them out there in front of eyeballs, and as I was trying to figure out what I wanted to do, my PhD dissertation on, I had been aware of the open game license and kind of the innovation that it represented in the gaming space. And I decided it seemed like something that more needed to be said about. So one of the kind of tests for doing a dissertation is you want to contribute to the field, want to contribute and write on something that hasn’t got a lot of attention on the open game license, had not received very much of any academic attention. And so I became the kind of person who not only has played D&D, but has written three hundred plus pages about the open game license and how it works and the consequences of and the role playing game community.
Mike Whelan [00:05:47] Hey, everybody, I’m Mike Whalen. I hope you’re enjoying this episode of the Contract Teardown Show. Real quick. I want to ask you to do me/you really a quick favor. Look down below. You’ll see a discount code to join the law insider premium subscription. When you do that, you get access to more content like this. You’ll see webinars, daily tips on contract drafting, not to mention access to the world’s largest database of sample contracts and clauses. It will help you write better contracts faster if you want to do it. Right now, there’s a code below. So get there. Also, if you’re part of a larger team, if you’re in-house or in a law firm, just email us. We’re at firstname.lastname@example.org will make sure you get a deal as well. Come join us in the community. The code is below. Let’s get back to the show.
Mike Whelan [00:06:33] Only a certain kind of weirdo is going to break this down, and the good news is we have a contract language talk show people. So here kind of go through this. We’re going to jump over to the document real quick. Bob, I want to start with where the document starts up in these definitions. This is an interesting context. Like you mentioned, there’s the derivative material product that open game content, a lot of terms in here that especially for the user, the person who’s going to be working on this kind of material is very new. Talk to me about the definitions. Do you like them? Are they written in a way that the people who are doing the writing can understand them?
Bob Tarantino [00:07:15] So I think one of the interesting things about the Open Game license is that it’s actually a fairly elegant license in the sense that it accomplishes what it needs to accomplish in a really short amount of space. The license is only about a page and a half long. Copyright licensing is complicated by nature. And so the license itself is somewhat complicated. I think they’ve done the best that they can. I do think you can tell that it’s drafted by a lawyer. So there is some excessive wording here. But I think the the vehicle and the way that they’ve actually managed to express the goal means that they’ve accomplished that goal in a fairly admirable way. Now, if I could take just one second to make one observation and draw your attention to the third line of the contract, you will see a word there, which I’m pretty sure whoever wrote the open game license deliberately put that word in there kind of as an Easter egg. And so you’ll see in the third line there, the derivative material means copyrighted material, etc., etc. And then he uses the word potation. I have absolutely no idea what potation means. It’s an archaic word when I looked it up in the dictionary, it actually means something about drinking used in old English. And so whoever wrote the open license and I have to confess throughout my research, I wasn’t able to figure out who I was. I would just like to salute. We never decided to insert potation into the draft.
Bob Tarantino [00:20:15] It’s the excluded bucket. You’re absolutely right. And so just to sort of clarify, it just I hadn’t made clear earlier for for listeners what an individual licenser decides to designate as product identity is entirely up to them. And so people will sort of have bigger or smaller buckets of product identity. So one of the things that most people designate is product and then these things like trademarks. But you can use it to designate all kinds of things. And people get really creative with how they designate products. And sometimes people use it and say, look, everything that’s on or in Chapter three of this book is product of any of that stuff. But everything that’s in Chapter one, two and four up, that’s all of the content. And now this is one of the things where the license gets a little tricky through Section seven, you’re actually restricted from using product identity in ways that you aren’t otherwise restricted. So particularly when it comes to trademarks, by using this open game license, you are agreeing to restrain or constrain yourself from using trademarks in a way that trademark law in and of itself doesn’t constrain. So you can’t for example, one of the things that Wizards of the Coast has designated as product identity is the trademark Dungeons and Dragons. You can’t use the words or the phrase Dungeons and Dragons on or in your materials if you agree to the open game license. They don’t want people sort of trading on the value of that brand or that trademarked phrase or the logos. So you have to be a little careful about this. Just to go back to a point you raised earlier, the open gaming license is not drafted in plain English, right. Like it is a legal document written by a lawyer and most easily digestible by lawyers. So one of the criticisms of the open game license that I came across in my dissertation research is it can be a little tricky, but you do have to spend some time absorbing the language and understanding how it all fits together. But for most people, once they sort of get over that initial kind of threshold of figuring out how to interpret legalese, they find that the use of the license is actually fairly intuitive.
Bob Tarantino [00:23:54] I do I think the mechanisms are really admirable, and I think the the way that they’ve structured this is to try and be as user-friendly as possible to the point that you were mentioning a few seconds ago. They have lots of materials. Even when they initially introduced the license, they had a lot of cues that they they released along with the license to try and explain it to people so that they could get comfortable with it. And it goes back to this notion of they were trying to model the behavior that they wanted to see. They were signaling to their audience, to their community, we’re doing something new here. We think it’s really cool. We think you can do your own cool stuff with it. And here’s how to do that. And that had some really positive effects. As I mentioned before, the the volume of role playing game product exploded after the open license was created because people were using the buttons to create it. They were they were using the material in a way that previously they hadn’t been able to do. And in part, that was because wizards of the predecessors to the coast, a company called TSR who had actually created the game in the 70s, they were notoriously aggressive enforcers of their intellectual property rights. And wizards of the coast, to their credit, realized that in a digitized, networked broadband environment, which had sort of grown up in the late 1990s, that was no longer tenable. And in fact, it wasn’t even an optimal approach to engaging with their audience. And so they flipped the switch. They flip the script, I guess you might say, but they flip the switch and said we’re going from an IP policing attitude to a creativity tolerant attitude. And the way that they signaled that was by creating the open game license and making it available and including these different building right into the core of the license, all of these different mechanisms that put people on notice and say this is what’s happening, these are the terms you’re licensing and they’re open, it’s available, it’s free, sort of get in the sandbox and play with this stuff.
Mike Whelan [00:26:08] Yeah. I mean, obviously, there’s a mirror to the the music industry that we could talk about. I keep coming back to the legal industry, to the way we are the major publishers and how they may be in Canada. You guys are better at this, but in the US we have a very restrictive view of legal publishing. It’s just an interesting issue. But before we get to principles, I’m going to go down to 13 because this is sort of the mirror of the offer and acceptance. The offer and acceptance was when you use this correctly, we’re going to imply you get it right. You’ve had an offer, an acceptance. The termination sort of says the opposite. This license will terminate automatically if you fail to comply with all the terms you’re in and fail to cure such breach within 30 days. So it’s sort of again, and implied you broke the rules. You’re out. You’re like this.
Bob Tarantino [00:26:55] I do. Well, here’s what I really like about this. It’s that second sentence in Clause Thirteen. All sub licenses survive the termination of this license. That’s really important from an IP licensing perspective, because what it means is that if A license or B comes along, so they’ve gotten a license from the coast, from company B comes along, creates a whole bunch of content and disseminates that and then not content goes out to C, D, E, F, G, H, etc.. If the termination of the license meant that all of those sub licenses or subsequent licenses in the stream were themselves terminated, then none of this would work. But what we’ve done or what was Wizards of the Coast has done here is said all of those sub licenses are still viable. They’re still valid. So nobody has to worry about whether somebody upstream of them in the creative process has violated the terms of the license. So it’s nice in the it’s nice and clean in the sense that, as you said, it’s an immediate automatic termination of the license. Right. There’s no sort of futzing around with notice periods. And did you cure the breach and all of that stuff if you’re in breach, the license terminates, but all of the stuff that you’ve propagated throughout the ecosystem, that is still completely valid. All of those licenses are fine. And all those licenses need to worry about is whether they themselves have acted in compliance with the license.
Mike Whelan [00:28:21] Yeah, and as we close, I’m thinking about the big picture. It would be easy, I think, for a lawyer who draft contracts for a company to look at this and say, well, this is a media company, this is different. I am here to tell you, everybody is a media company now. Right. The new marketing model and the new media model are the same thing. And what these companies are trying to do, including losing sight of the fact that you and I are having this conversation, is all these companies are trying to create engagement with an audience to build community. This is the Holy Grail to try to. Keep people around. Well, here’s a company that said we used to restrict that community, but now for the sake of community, for the sake of building community, we’re going to make this much more available. Talk to me about if I’m a lawyer, I’m drafting I’m trying to help a company do this work. How do I get us out of our own way through a document like this?
Bob Tarantino [00:29:16] So it’s a great question. And I think part of the challenge is when people hear things like intellectual property, their immediate sort of reaction as a property should, that means I can control it and I should exclude other people from using it and I should make sure that I lock it down in some way. And what this story, what the open game license and its history over the last 20 years really demonstrates, as we’ve seen in many other industries, is the value of opening things up. And so I think one important role that the open game license can play is to demonstrate that an open approach to community works. It’s worked for 20 years. The game is more popular today than it has ever been. And it also provides a nice model of how you can create an open content license. And so I think it’s a great story. I think it’s a great license. I think the impact that it’s had in that community has been really difficult to overstate. The community has has grown exponentially since the game was first released in the 1970s. And I think there’s a direct causal relationship between that growth and the open game license. And when I was doing my research, I interviewed many people who created companies using the open game license because they took the spirit of the endeavor and they said, let’s accelerate our community creation so that we’re not just a broadcaster. We’re not just a company sitting here throwing stuff out into the universe and hoping that people abide by it. But we’re actually engaging in a dialog and a creative conversation with people and making sure that they can take our content, they can access it, they can rework it for themselves, they can remix it, and then they can, you know, not only respond to us, but then disseminate it on to other people in the community. And that’s communities are all about dialog and dialog consists of content that’s being shared and commented on and reworked and made new and disseminated to other people so that they can then engage in those processes themselves. And the open content licensing is one of the ways in which people can do that. And so I think the open game license, its history and its text are really great models for how a company can take their material that they might be inclined to say, lock it down, protect it, make sure that we’re the only people who can ever realize any monetization from the exploitation and understand that, in fact, there’s a better way.
Mike Whelan [00:31:54] That’s right. You guys Law Insider viewers, you can do contract teardowns, too. You just can’t use the term contract tear down or pictures of this beautiful face. Bob, thanks for hanging out with us. If people want to follow up with you and just dig into the nerdiness, my teenagers tell me this is the age of the nerd? If people want to live in the age with you, Bob, what’s the best way to reach out to you?
Bob Tarantino [00:32:18] So I’m on Twitter, Bob Tarantino. I’m on linked in. People feel free to find me. Denton’s in Toronto, Canada. I was happy to chat to fellow contract nerds, fellow D&D and nerds, nerds of all stripes and flavors.
Mike Whelan [00:32:33] Full Venn diagram guys. We will include links to that, as well as the documents that we talked about over at lawinsider.com/resources. If you want to be a guest on the Contract Teardown show, just email us. We’re at email@example.com. We look forward to doing it. We will see you guys next time. Thank you again, Bob.
Bob Tarantino [00:32:54] Thank you. My real pleasure.