After the bombshell report by friend-of-the-show Linda Codega on Wizards of the Coast’s disastrous new version of the Open Gaming License, we discuss the controversy with two guests: Justin Alexander and LegalKimchi. We dive into what the Open Gaming License (OGL) is, its history and context, the legal issues raised by the new document, why no company in their right mind will sign the new license, the reasoning that may be guiding WotC’s decision, and where companies and fans can go from here.
Youtube is back bay-beeeee….
This video almost never got released, but patrons of the Alexandrian made me reconsider. You can also read the original essay (which was actually adapted from the script for this video) if you’d prefer.
We also have more videos in the editing pipeline, so I hope you’ll join me in crossing our fingers for more cool Alexandrian video content.
In the Brief History of the Open Gaming License, we discussed how the Open Gaming License (OGL) works and how it has impacted the RPG industry and hobby since its introduction in 2000. If you’re unfamiliar with the OGL, you may want to check that essay out first.
One thing I didn’t touch on in that essay is a meme which has grown particularly more popular over the last few weeks as it’s become clear that Hasbro is, once again, planning to abandon the OGL. It goes something like this:
You can’t copyright game mechanics, therefore you don’t need to use the OGL to publish D&D-compatible supplements or games based on D&D.
In its most vituperative forms, this meme will even go so far as to claim the OGL offers absolutely nothing of value to creators and that the whole thing is just a huge scam cooked up by Wizards of the Coast.
Is this true?
First things first: I am not a lawyer and nothing in this essay should be construed as legal advice. But I do have a couple decades worth of experience working with the OGL, so take what I say here with however much value you put in that.
As for the claim, it is… somewhat true. (And we’ll talk about why it’s true.)
But most of the time when I see it online, I think it is usually misleading and, more often than not, completely wrong.
So, right up front, let me be clear: If you’re planning to dance this dance, get an IP lawyer to review literally everything you publish.
One last thing: I’m going to be discussing things primarily from the view point of U.S. copyright and trademark laws. If you’re not in the U.S., some of this might still apply. More likely it won’t. So, again: Get an IP lawyer.
WHAT YOU GIVE UP: CLAIMING COMPATIBILITY
Let’s start by talking about what legal rights you give up if you choose to publish a book with the OGL: The ability to claim compatibility with D&D.
It’s a long-established tenet of U.S. law, supported by Supreme Court decisions, that you have the right to indicate compatibility with a third-party product in your advertising and product labeling. (For example, if you produced a replacement carburetor compatible with Ford Mustangs, you could use Ford’s trademarks to indicate that.)
So, insofar as you have the right to publish D&D-compatible books (which is, of course, the question we’ll be looking at in more detail below), trademark law would allow you to say, “This book is compatible with Dungeons & Dragons®.”
If you use the OGL, however, you specifically agree to NOT do that:
7. Use of Product Identity: You agree not to Use any Product Identity, including as an indication of compatibility, except as expressly licensed in another, independent Agreement with the owner of each element of Product Identity. You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such Trademark or Registered Trademark.
It’s also possible that if you use Open Game Content from other publishers, that their declarations of Product Identity could also prohibit you from using other material you would otherwise have a legal right to use.
A couple things to keep in mind, though.
First, claiming compatibility with third-party trademarks is more legally fraught than this simple summary might suggest. There are very specific and very nuanced legal guidelines about exactly what you are and are not allowed to do, and if you step over those lines… well, say hello to Hasbro’s lawyers, because they’re legally mandated to protect their trademarks at risk of losing those trademarks.
(Although that, too, is a pithy legal aphorism which is more complicated than the simple statement would suggest. Honestly, that’s just the way the law works.)
Second, the inability to use Hasbro’s trademarks to indicate compatibility has historically been largely irrelevant. D&D is such an insane juggernaut in the RPG industry that all I need to say is “5th Edition” and you instantly know that I’m talking about the 5th Edition of D&D — not Call of Cthulhu or Shadowrun or Vampire: The Masquerade.
This means that publishers can just stick “Compatible with 5th Edition” or even just a big ol’ “5E” on their cover, and everyone knows exactly what they’re talking about. Hasbro can’t (or, at least, doesn’t) own a trademark on something so generic as “5th Edition” or “5E,” so there’s absolutely no reason for anyone to dip their toes into the sticky legal morass of claiming compatibility.
Now, with that being said, there are also some signs that Hasbro is looking to make this more difficult. For example, some variety of “For Use with the Oldest/Most Popular/Greatest Roleplaying Game!” has also been frequently used on OGL books. But with the release of Spelljammer earlier this year, Wizards of the Coast claimed THE WORLD’S GREATEST ROLEPLAYING GAME™ as a trademark for the first time.
Is that similar enough to THE WORLD’S OLDEST ROLEPLAYING GAME that Hasbro’s lawyers could claim trademark confusion? Maybe. I have no idea. Get an IP lawyer.
The title of “OneD&D” itself is, most likely, a development title just like “D&D Next” was during the playtesting period for 5th Edition. But, notably, “OneD&D” is also highly resistant to any kind of generic “Compatible with 3.5” or “5E” labels. Yes, it’s likely that people will still refer to the new game as “6th Edition” regardless, but if Wizards were to push hard on an alternative label (whether that’s OneD&D or something else) it could very possibly affect the perception of the average D&D consumer (who doesn’t actually know anything about the OGL).
THE BASICS
Okay, let’s talk about some basics.
Copyright is a form of intellectual property that gives the creator of a work the exclusive right to copy, distribute, adapt, display, or perform it. It’s very, very complicated. In terms of RPGs, you can mostly think of it in terms of the publisher owning the words and pictures in the book. Under modern law, copyright does NOT have to be claimed; a creator has copyright in their work as soon as it is “fixed” in a tangible medium (i.e., written down), but registration offers legal benefits.
Copyright is given legal protection because it encourages the creation and sharing of new works. (Without copyright, those who invest time and money into creating new things would be less capable of marketing them competitively compared to someone who just xeroxes them.)
Trademarks are a different form of intellectual property right. They are signs, designs, or expressions that uniquely identify products or services from a particular source. In terms of RPGs, you can mostly think in terms of logos, brand names, corporate names, and, in some cases, the title for a series of books. (But not the titles of individual books.)
Trademarks exist in order to legally protect consumers from fraudulent claims. Trademarks can be either unregistered, in which case they’re indicated with the ™ symbol, or registered, in which case they appear with the ® symbol. Registration offers a number of legal benefits and advantages, but despite what you may have heard from dubious sources, both registered and unregistered trademarks can be legally enforced.
Public domain refers to creative works which are not protected by intellectual property laws. For our purposes, you can mostly think of this as “stuff that could be copyrighted if it was created today, but was created so long ago that it’s no longer protected by copyright.” (This is vastly simplified, but, as I say, it will suffice for our discussion here.)
Game mechanics cannot be copyrighted. (They can be patented, but, thankfully, we can ignore that because Hasbro has never claimed any patents for D&D’s mechanics.) You CAN have copyright in:
To take a fairly uncontroversial example relatively unladen with complications, imagine that you created a brand new card game using the a standard 52-card deck and wrote down the rules for it in a plain text document. If I simply copy-pasted your rules and then distributed them to other people (whether for money or not), it’s extremely likely that I would have violated your copyright of the specific expression of those rules (i.e., the words you used). But if I instead rewrote your explanation of the rules, even if I didn’t actually change anything about how the game was played, I would almost certainly be just fine.
(I say “extremely likely” and “almost certainly” because it would still depend on the specific words used in both cases. Get an IP lawyer.)
DERIVATIVE WORKS
Now, here’s where it gets tricky, particularly in combination with the laws regarding game mechanics:
Copyright is not limited to the specific words on the page.
It also covers the creation of derivative works.
The specifics here are vast, complicated, nuanced, and explicitly uncertain in the annals of the law. (Get an IP lawyer.) But if you want to try to grok this, I find a couple of court cases useful.
First, in Nichols v. Universal Pictures Corp. (1930), Judge Learned Hand ruled that it’s “essential to any protection of literary property [that] the right cannot be limited literally to the text, else a plagiarist would escape by immaterial variations.” In other words, if you could just take The Lord of the Rings, change the name “Frodo” to “Grodo,” and legally publish it, then copyright would be meaningless.
Notably, in this specific case, the plaintiff still lost, because the elements taken from their work were not specific enough to be protected (they “went into the public domain”). But even Judge Hand was uncertain where the line might actually lie: “But we do not doubt that two plays may correspond in plot closely enough for infringement. How far that correspondence must go is another matter. Nor need we hold that the same may not be true as to the characters, quite independently of the ‘plot’ proper, though, as far as we know, such a case has never arisen.”
The second case is Anderson v. Stallone (1989), in which Timothy Anderson wrote a treatment describing the plot of a hypothetical Rocky IV and showed it to film executives and Stallone himself. Anderson was ultimately not paid for his work, even though he claimed that the final version of the film was substantially similar.
Judge William D. Keller, in his decision, determined that the similarities were irrelevant because Anderson’s work had not been authorized by the copyright holders. Therefore, it was an unauthorized derivative work, and not protected by copyright.
There’s a bunch of stuff going on in this case, but the key thing for our purposes is why the work was derivative: It wasn’t because Anderon copied the words or plot of previous Rocky films. It was because he used the characters from those films, and Judge Keller ruled that those characters were, in and of themselves, protected by copyright.
(This is half of the reason why, for example, you’ll see authors and publishers often saying, “Do not send me unsolicited stuff, particularly if it features my characters or worlds.” It gives them legal protection from someone saying, “Hey! You copied my fan fiction!”)
At this point, I do feel the need to point out that my relatively simple presentation of Nichols v. Universal Pictures Corp. and Anderson v. Stallone may have created an overly simplistic understanding of the legal issues involved here. The determination that Rocky Balboa, for example, was a protected character involved applying multiple legal tests, which I have not even begun to describe here. (And am almost certainly incapable of doing so accurately.) And that’s just characters: Jabba the Hutt is probably protected, but why is Pizza the Hut okay? Is Tatooine protected, or is it actually derivative of Arrakis? Can you use a Rancor monster in your fantasy setting? What if you call it a Bangkor monster from the planet Rathomir in a science fantasy story?
My point is that (a) copyright can absolutely protect fictional creations independent of their specific expression and (b) the determination of whether a specific fictional creation has ANY protection and whether a specific work is or is not derivative are both extremely non-trivial.
THE JEDI TEST
So let’s bring this back to D&D.
If D&D were like a basic card game with rules written in plain text, then it would be simple. You can’t copyright mechanics, only the text describing those mechanics. Therefore, as long as you don’t copy-paste text from a D&D book, you can publish D&D-compatible adventures.
But, unfortunately, it’s not that simple. To quote the Copyright Office’s fact sheet on game design:
Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form.
Material prepared in connection with a game may be subject to copyright if it contains a sufficient amount of literary or pictorial expression. For example, the text matter describing the rules of the game or the pictorial matter appearing on the gameboard may be registrable.
If your game includes any written element, such as instructions or directions, the Copyright Office recommends that you apply to register it as a literary work. Doing so will allow you to register all copyrightable parts of the game, including any pictorial elements.
Here we arrive at the heart of the matter. The “literary expression” of a game is protected. And, as we’ve just seen, the literary expression isn’t just the specific words on the page: It can include plot, characters, and even fictious settings.
To wrap your head around this, I find it useful to think about what I call the Jedi Test:
Obviously not, right?
D&D AND THE PUBLIC DOMAIN
Okay, so you can’t publish an RPG with Jedi in it just because “game mechanics can’t be copyrighted.” But D&D has elves and dwarves and fairies and wizards. Those are in the public domain, right?
Probably. Well… depending on what you mean, exactly.
Sure, elves have been in fairy tales for centuries, and that means they’re in the public domain. But there’s definitely a point at which specific elves are no longer in the public domain.
Even Tolkienesque elves have percolated through the culture so widely that it would be difficult to imagine anyone successfully claiming copyright on them (assuming that they ever could have, which is uncertain). But if you write a story with Tolkienesque elves living in Rivendell and Lothlorien, then it’s quite plausible that the Tolkien Estate will come knocking. If your elves are named Elrond and Galadriel and Celeborn and Legolas, then even I (who am, I must insist, not a lawyer) feel pretty confident in declaring that you’ll lose that court case.
Somewhere between “elf” and “Galadriel of Lothlorien,” a line was crossed.
Where was it crossed? I don’t know. Arguably, no one does. There’s a clearly safe zone around “generic elf” and an almost certainly NOT safe zone around “Galadriel of Lothlorien, wife of Celeborn, daughter of Finarfin, bearer of Nenya,” but the exact point where you transitioned into copyright infringement could probably only be hashed out in an actual court case.
And this is further complicated by the fact that the protection afford to a fictitious setting is, by its very nature, dependent on a combination of elements. So even if it were okay to use “Galadriel of Lothlorien” (and I must emphasize that this is a purely hypothetical scenario), it might not be okay to do so if you also had dwarves from Moria.
What probably goes without saying, of course, is that D&D elves (and dwarves and centaurs and harpies) likely exist on a similar scale: They’re based on a public domain root, but at some point their specific implementation within the lore of D&D becomes protected by Hasbro’s copyright. And if you cross that line in your D&D-compatible book, then you’ll be creating a derivative work and you will be in violation of the law.
It’s even likely that all of this becomes even more complicated if you choose to actually invoke that compatibility (with or without a trademark). To return to our Jedi test, imagine publishing a game that says COMPATIBLE WITH STAR WARS on the cover. Even if everything within the book is generic enough to remain within the public domain (you don’t actually include “Jedi,” for example, just mystic space monks), does the fact that you put “STAR WARS” on the cover inherently make your literary expression derivative of Asmodee’s literary expression of the licensed Star Wars universe and IP?
Maybe.
As far as I know, there’s no court case that has decided anything remotely like that. So people can speculate, but there’s no way to actually know.
And the same logic could easily apply to saying COMPATIBLE WITH D&D, with the declaration pushing material that would otherwise not be derivative into a derivative status. Would it actually push the line? And, if so, how far would it push it? Again, nobody really knows. There’s no legal precedent.
MECHANICS DESCRIBING SETTING
It’s also quite possible that copyright around roleplaying games is even more complicated than that. Because unlike, say, Star Wars Monopoly, where labels from the Star Wars universe are hung over fairly generic mechanics (e.g., squares on a board or faux currency), the mechanics of a roleplaying game are explicitly designed to describe a fictitious setting.
Drizzt’s stat block, for example, is a set of mechanical elements that are designed to describe that specific character. (As opposed to a different set of mechanical elements which would describe a different dark elf character.)
The key question in terms of RPG copyright, which has never been answered, is the degree to which the mechanics actually describe the world and, therefore, ARE protected by copyright.
We know that they certainly are to at least some degree: You can’t make a game with a Jedi in it just because there are games that have mechanics labeled “Jedi.” Maybe you could just remove the word “Jedi” and put a different label on the mechanics? But the key word there is “maybe,” because even if we ignore the issue of game mechanics, there’s a point where your “generic Jedi” is generic enough (in film or book or RPG) to no longer be protected by copyright, but also a point where your not-Jedi definitely are NOT generic enough. Where on the scale do these specific game mechanics fall?
CONCLUSION
My point here is that this line between “protected” and “not protected” in D&D exists for every single race, every single class, every single stat block.
Take the Jedi test and repeat it for every single element in the game. And don’t get it wrong even once, because if you do, Hasbro wins the court case.
Which, ultimately, brings me full circle:
Yes, you can publish generic, D&D-compatible supplements without using the OGL.
But if you do: Get an IP lawyer to review literally everything you publish.
Now, it can certainly be argued that you should have an IP lawyer even if you’re relying on the OGL. But what the OGL does is largely sidestep most or all of the issues we’ve just been discussing: If it’s in the SRD, and has been declared open content by Wizards of the Coast, then you don’t have to guess where the line may or may not be. It’s very clearly defined, and the very existence of the license would likely give you a much broader benefit of the doubt in any court case.
Plus, there’s stuff in the SRD that you almost certainly couldn’t use without it. (Or, at the very least, would be taking a very large risk to do so.) Tieflings, for example.
So if someone tells you that you don’t need to use the OGL… well, maybe they’re right.
But if they’re telling you it’s simple, clear-cut, and settled law? Get a second opinion.
From an IP lawyer.
REBOOTING 3rd EDITION
As a result of the Open Gaming License (OGL), D&D was sitting at the top of, and benefiting from, a huge pyramid of support material. Wizards wanted to shut that down, but there was no way to do that because the license couldn’t be revoked.
What Wizards COULD do, though, was reboot the game. And that’s exactly what they did in 2003, releasing the revised 3.5 Edition of D&D.
The way in which they did this was significant. Before 3.5 was released, Wizards made a big deal in all of its marketing about how the game was going to be “backwards compatible.” It wasn’t going to make your existing 3.0 books obsolete, and players should have no qualms about continuing buy 3.0 books because they would still work with the new 3.5 rulebooks.
But when 3.5 was actually released, a switch was flipped in the marketing: The 3.0 books were now worthless. Those black-and-white softcovers we were selling? Get rid of ‘em. Time to buy the new full color hardcover splatbooks! The evergreen strategy was out, and the splatbook strategy was back, with Wizards using the 3.5 reboot to upgrade their splatbooks so that they could compete with the high quality third-party supplements.
But it wasn’t just the customers who had been caught flatfooted by this abrupt one-eighty in marketing. OGL publishers had taken Wizards at their word, and continued developing, writing, playtesting, and printing 3.0 supplements they had been told would be completely compatible with the new rulebooks, but which their customers were now being told were worthless.
And it wasn’t just the publishers. It was the local game stores, too, who had continued investing their capital in merchandise they thought they could sell, but which Wizards was now telling their customers should be left to rot on the shelves.
Hundreds of games stores went out of business. Dozens of publishers followed. The “D20 bubble” had burst, having been either accidentally — or, according to some — deliberately popped by Wizards.
But 3.5 was, in fact, pretty similar to 3.0. Even if WotC hadn’t released an updated SRD for the 3.5 rules, third-party publishers would have been able to continue producing compatible books using the existing OGL. For now, at least, Wizards decided it made more sense to stay on top of the pyramid.
That would change, however, five years later with the release of 4th Edition.
LET’S KILL THE OGL
The story of the release and many, many failures of 4th Edition is a saga in its own right, so I’m going to try to keep it as simple as possible and also stay focused on the OGL.
The short version is around 2005, Hasbro decided to split its brands into core brands, which had more than $50 million in annual sales, and non-core brands, which didn’t. Core brands would get investments in development, marketing, and licensing. Non-core brands would not, and in fact many of them would be mothballed, allowed to lie dormant for years before being potentially brought back for a fresh start.
D&D was not a $50 million brand. It was a $30 million brand.
So the D&D team had a big problem: At best, most of them were about to lose their jobs. At worst, D&D was once again on the corporate chopping block.
So they came up with a big plan for saving D&D by growing its annual revenues. This included a virtual tabletop, digital DLC, increased miniature and merch sales, and a subscription platform to get regular, monthly income from their fans just like an MMO. They also believed that they needed to kill all outside licensing, including the OGL, so that they could claw as much of that revenue back as they could.
But, of course, the OGL could not be revoked.
Do I know for an absolute fact that the design team of 4th Edition D&D was given a corporate directive to design a game that required the use of either miniatures or a virtual tabletop, both of which Wizards would sell; strongly encourage the use the of a digital character creation subscription service; and so fundamentally alter the core gameplay of D&D that the OGL could no longer be used to create compatible supplements?
I don’t.
So you can make up your own mind about that.
What we do know is that Hasbro killed the OGL for 4th Edition. And we also know that Wizards didn’t really want to publicly admit that, so they spent a lot of time before 4th Edition came out hemming and hawing. They talked a lot about their commitment to open gaming and assured people that a license for “third-party and fan creations” would definitely be made available for 4th Edition.
There was a lot of back-and-forth here, and the timeline is made a lot muddier because there were both public announcements being made and private meetings with third-party publishers shielded with NDAs. There are a few key milestones that are probably worth establishing, though.
First, Wizards eventually admitted that 4th Edition would not use the OGL. Instead, they were creating a new Gaming System License, or GSL. But the details of this new license still weren’t being made public.
Wizards then announced that people could pay them $5,000 in order to get early access to the 4th Edition SRD and GSL, but still didn’t tell anyone what the terms of the GSL were. This went over like a lead balloon and the program was cancelled.
When the GSL was finally released, it contained a poisoned pill: If you used the GSL, you could not publish anything in the same product line using the OGL.
It also contained a termination clause, just like the one used in the D20 System Trademark License: Hasbro could unilaterally cancel the GSL at any time, at which point you would need to immediately de-list your books and pulp your inventory.
After more public outcry and pressure, they eventually dropped the poisoned pill. But the termination clause stuck. That was, after all, more or less the whole point of the exercise.
(Ironically, as far as I know, that termination clause has never been activated.)
THE RISE OF PATHFINDER
At this point, Wizards had a few problems.
First, their GSL shenanigans were just one of several ways in which they’d alienated large chunks of their fanbase.
Second, even though they’d willfully abandoned their position on top of the vast pyramid of 3rd Edition support material, that pyramid was still there. And people were still free to create more of it.
Third, they’d pushed a company called Paizo Publishing into a desperate situation.
When Wizards decided they didn’t want to keep publishing Dragon and Dungeon Magazine in 2002, they licensed those magazines to Paizo, a company which had been founded by former Wizards executives to specifically do that.
In preparation for 4th Edition, Wizards announced that Paizo’s license would not be renewed and, in fact, that Dragon and Dungeon would no longer be published as physical magazines at all. Paizo, of course, still had the subscription lists, so they started publishing the Pathfinder Adventure Path as a new monthly periodical for their customers.
Paizo’s intention was to transition the Pathfinder Adventure Path to 4th Edition when the new game came out, but Wizards’ lengthy delays in making the GSL available put Paizo in a bind, which only became worse when it became clear that, whatever the Top Secret terms of the new license were going to be, they certainly weren’t going to be particularly friendly.
The result was the Pathfinder Roleplaying Game. Published by Paizo, it was essentially a “3.75” edition of D&D that, because of the subscription lists, could be marketed directly to the most hardcore of D&D’s fans by a company that had already spent years selling them premiere adventures and support material. It also became a banner for all those disaffected by Wizards’ actions, the gameplay of 4th Edition, or both.
Wizards had completely blown their dismount from the OGL and managed to create their single largest competitor. Furthermore, Pathfinder made it certain that the OGL — and the wealth of third-party support made possible by the OGL — would continue through the long winter of 4th Edition.
THE RETURN OF THE OGL
Let’s fast forward now to 2015.
Whatever your personal opinion of 4th Edition as a game, there’s little question that it was a failure for Wizards of the Coast. They attempted to relaunch the game in late 2011, and then cancelled it entirely in 2012. The leadership responsible for 4th Edition was fired and development began on what would eventually become 5th Edition, which was released in the fall of 2014.
A lot of the marketing around 5th Edition took the form of mea culpas. As we’ve noted, Wizards had burnt a lot of bridges in 2008, and they were now working overtime to repair them. For example, whereas 4th Edition had seen them cancel all their third-party licenses, they would now reach out to third-party companies to develop their first official campaigns for the new edition.
In the spirit of bridge-building, they similarly announced, in May 2014, that 5th Edition would be returning to the OGL. Unlike in 2000, this wouldn’t happen on the day of the game’s release in September 2014, but would instead follow in the spring of 2015.
There would also be no trademark license this time, but the approach to the OGL itself would be similar: An SRD would be released under the license, containing all of the open game content required to make 5th Edition-compatible adventures and supplements.
Behind the scenes, this détente had actually required a titanic struggle with Hasbro’s lawyers. The compromise that was made was that nothing would be included in the 5th Edition SRD unless it had already been included in the 3rd Edition SRD.
So, for example, the magic missile spell had appeared in 3rd Edition, so it’s also in the 5th Edition SRD. Arcane gate, on the other hand, wasn’t a spell in 3rd Edition, so it doesn’t appear in the 5th Edition SRD.
This also means that the 5th Edition SRD contains enough material to allow for the creation of 5th Edition-compatible supplements, but not so much that something like the Pathfinder Roleplaying Game could be easily created by another company.
MEANWHILE, IN THE GUILD…
In terms of community content, however, the SRD and the OGL aren’t the whole story for 5th Edition. There’s also the Dungeon Masters Guild.
To understand the origins of the DMs Guild, we need to go back in time to the early days of 3rd Edition. During this time, a company called RPGNow had signed an agreement with Wizards of the Coast to sell D&D PDFs. This included PDF versions of older books, too, going all the way back to the original 1974 game.
RPGnow would eventually merge with DriveThruRPG to form a company called OneBookShelf, which continued selling the D&D PDFs.
When Wizards started yanking all their external licenses with the release of 4th Edition, however, this included OneBookShelf’s license. This was, rather infamously, done without any prior announcement and included preventing people who had previously purchased the books from downloading them. (Remember what I said about alienating large chunks of their fanbase?)
In 2012, with leadership changing in the wake of 4th Edition’s failure and the corporate strategy switching from No One Shall Play With Our Toys to Y’All Come Back Now, Ya Hear?, OneBookShelf was able to negotiate a new license, launching D&D Classics in 2013 to once again offer PDFs from all previous editions of D&D.
In 2016, D&D Classics was rebranded the Dungeon Masters Guild, and a community content program was launched: Independent creators could now create and sell content based not only on the SRD, but on all official D&D 5th Edition books. This included the Forgotten Realms, and has since expanded to include other official settings including Ravenloft, Eberron, Ravnica, Theros, and Dragonlance.
The license for the Dungeon Masters Guild has nothing to do with the OGL, and those using this license can ONLY sell their books through the Dungeon Masters Guild website. Furthermore, if you publish a book through the DMs Guild, you are prohibited from publishing any derivative work.
So, for example, you could not publish a book through the DMs Guild, then remove all the D&D-related material and publish it using a different set of rules. Nor could you publish a novel or comic book based on your DMs Guild book.
Finally, unlike the OGL, the DMs Guild license can once again be unilaterally terminated by Hasbro. This does not, crucially, end the exclusivity agreement, so you would still be unable to remove the D&D IP and publish your work somewhere else.
This means that there will come a day when Hasbro decides to shut down the DMs Guild and everything on the site will simply… vanish. Forever.
You’ll hear some people say that this would never happen, because Hasbro would never want to deal with the huge public backlash that would follow. But, as we’ve seen, this isn’t really a hypothetical: Hasbro HAS cancelled licenses just like this one. It’s not a question of if they’ll do it again, just when.
Does this mean that no one should publish on the DMs Guild? Not necessarily. Being able to commercially access the entire lore of D&D’s official campaign settings and produce tie-ins and support products for their most recent adventure modules is an incredibly unique and creatively special privilege.
But unless you’re doing that, you may want to take that whole “some day you’ll never be able to show anyone your work ever again” thing into consideration.
Regardless, with the OGL and the DMs Guild, 5th Edition ushered in a second golden age of third-party content for D&D. As with the OGL and D20 System Trademark License for 3rd Edition, you can argue about exactly how much this openness has contributed to the success of the game, but there’s no question that the game has succeeded brilliantly, with 5th Edition exceeding all expectations and finally achieving the lofty revenue goals that 4th Edition tried so desperately to grasp.
THE NEXT CHAPTER
Now, in the waning days of 2022, preparations are being made for D&D’s next chapter. A new edition of the game, currently referred to as OneD&D, has entered public playtesting and is scheduled for release in 2024 during the game’s 50th anniversary.
A few days ago, Wizards of the Coast announced that OneD&D, like 4th Edition before it, would NOT be using the OGL. Instead, a new version of the license – currently referred to as the OGL v1.1 – will be used. We don’t know a lot about this license, but we do know that:
Any or all of this, of course, might still change. And what the final form of this 1.1 license will be is something we can really only speculate about. Will it have one or more poison pills? Will it give Hasbro the right to make unilateral changes to the license or otherwise be revocable?
As we look back over the history of the Open Gaming License, it seems as if we’re in a period of time quite similar to 2008: New leadership has taken control of Wizards. They have a new edition coming out. Corporate leadership is calling for increased monetization of the D&D property. After hemming and hawing, Wizards has been forced to make a public statement about the future of the Open Gaming License.
And what we know for certain right now is that their intention is for OneD&D to be less open than 5th Edition.
How MUCH less open it will be is the unanswered question.
FURTHER READING
Do I Need to Use the OGL?
What the heck is an Open Gaming License?
And why should you care?
The Open Gaming License, or OGL, is what lets people sell D&D-compatible adventures and supplements without getting Hasbro’s specific permission to do so.
So if you’re someone making D&D-compatible stuff, you should probably care about the OGL quite a bit, since it’s one of only two ways to do that. (The other being the Dungeon Masters Guild, which we’ll talk about later.)
But most of you watching this probably aren’t trying to sell D&D-compatible stuff. You’re probably just trying to run and play in your Saturday night sessions. So why should you care?
Well, probably because a lot of the stuff you love and use in your games has been produced using the OGL. And if it isn’t, then there’s a ton of really amazing stuff out there that you should really check out.
For example, maybe you’re a fan of Critical Role. If so, you may be familiar with the Tal’Dorei campaign setting book. They were only able to publish that because of the OGL.
Or maybe you’ve played Adventures in Middle Earth, the 5th Edition compatible Lord of the Rings roleplaying game. Again, OGL.
Maybe you’re a fan of my work, in which case you might be familiar with the adventures I’ve published with Fantasy Flight Games, Atlas Games, and others. Again, none of these would exist without the OGL. There’s a lot of content on my website, the Alexandrian, that wouldn’t exist without the OGL.
Okay, so the OGL makes cool stuff possible. So where does it come from? How does it work? Why is everyone screaming and yelling about it?
WIZARDS AND D&D
Well, the OGL has been around for about twenty years now. It was first released in 2000. But to really understand its roots, we have to go back a few years before it existed.
In 1997, a company called Tactical Studies Rules — TSR, Inc. — was going bankrupt. There were a lot of complicated reasons for this, and we’re not going to dive into it here. But this was significant because TSR was the original publisher and still owner of Dungeons & Dragons. The thing to understand is that D&D was in real jeopardy here: TSR’s assets were going to be hacked up and its parts divvied out among its many, many creditors.
It was very possible that someone would end up owning D&D who had no interest in publishing a tabletop roleplaying game: They’d exploit the IP for novels, video games, TV shows, or whatever, but they wouldn’t necessarily publish an RPG. D&D as we know it would be dead.
Fortunately, a company called Wizards of the Coast had published a little indie card game called Magic the Gathering a few years earlier. You may have heard of it. They used the money they’d gained from Magic to purchase TSR outright. D&D was now in the hands of people who loved the roleplaying game. D&D was saved.
Now at this point a couple things happen pretty fast: First, Wizards of the Coast begins developing the third edition of Dungeons & Dragons. Second, in 1999, just a couple years later, Wizards itself is bought out by Hasbro, a huge toy and game conglomerate.
A year later, in 2000, the 3rd Edition of D&D is released. And a major pillar of its marketing campaign is the Open Gaming License: Anyone could publish third-party supplements that were compatible with the official version of D&D.
And they did: When the Player’s Handbook was released at Gen Con in the summer of 2000, two compatible modules were immediately available the same day. Atlas Games’ Three Days to Kill by John Tynes and Green Ronin’s Death in Freeport by Chris Pramas.
HOW THE OGL WORKS
The OGL can actually apply to a lot of different types of products, but to keep things simple we’re just going to talk in terms of RPG supplements published as books.
There are three key things to understand about the OGL.
First, not everything in a book published under the OGL is free to use with the license. Instead, the publisher must explicitly declare what content in the book is Open Game Content. This is material that other people can use in their own OGL books. The only requirement is that any open game content you use from someone else MUST be declared as open content and credited in the copyright section of the copy of the OGL you print in your book.
Second, the publisher of an OGL book can also choose to declare Product Identity. This might be trademarks or character names or artwork. There’s lots of stuff that can be Product Identity. The key thing is that Product Identity can never be open game content, even if the declaration of open game content would otherwise apply.
This provides a safety net that makes it easy for publishers to avoid accidentally opening their trademarks or other IP. For example, if they declare that “trugglewomps” are product identity and they declare that “everything in Chapter 2 is open content,” then trugglewomps won’t be open content even if they appear in Chapter 2.
This is good because it will encourage publishers to use the OGL, since they won’t have to worry about accidentally voiding their IP rights. It’s also good because it encourages liberal and clear declarations of open game content.
If product identity didn’t exist, for example, a publisher might only declare very small parts of Chapter 2 open content, to make sure they didn’t accidentally put trugglewomps on the open market.
The third thing to understand is that the D&D core rulebooks were NOT released under the OGL.
Instead, Wizards of the Coast copied SOME of the rules and lore from the core rulebooks into a digital file called the System Reference Document. It was this System Reference Document — or SRD — that was released under the OGL, and thus made available to other publishers using the OGL.
The final thing to know is that the OGL is unrevocable. Once you release open game content under the OGL, it will ALWAYS be open game content. There’s no Undo button. Not even for Hasbro.
So why did Wizards do this?
Well, they had two goals.
First, Ryan Dancey — who was in charge of D&D at the time and schemed up the OGL — believed that Wizards needed to be publishing a lot fewer supplements and adventures for D&D. He’d seen TSR’s books and he believed flooding the market with D&D books had been a major factor in the company’s failure.
There were certain core titles — including the core rulebooks — which were far and away the most profitable books TSR published. Dancey believed Wizards should focus on producing those books. The most profitable ones. He called them evergreen titles.
But he also knew that supplement support was important for an RPG to thrive. The Open Gaming License would get other publishers — publishers who didn’t have the huge overhead of Wizards and would be much more successful in turning profits on smaller print runs — to provide a constant flow of adventures and other support material for D&D.
That support material would make more people interested in buying and playing D&D. And this, in turn, would grow the network externality of D&D.
I’m not going to dive into network externality at length, but the short version is that the more people there are playing D&D, the more likely it is that someone looking to play a roleplaying game will find a group playing D&D. That will make it more likely that they become a D&D player, which increases the number of D&D players, and therefore increases the likelihood that the NEXT player will ALSO become a D&D player.
Dancey’s argument, in short, is that D&D’s biggest strength is that it’s the roleplaying game you’re most likely to find when you go looking for a roleplaying game, and the open gaming license was designed to make that even more true.
Second, the OGL meant that D&D would never again be at risk of being killed due to corporate malfeasance. Remember that just a couple years earlier D&D had almost died as a result of TSR’s bankruptcy, and now it was owned by Hasbro, who could decide at any time that they weren’t interested in publishing a tabletop roleplaying game.
But the OGL has no Undo button. Once the rules of D&D were placed under the OGL, it could never truly be taken out of print by the actions of a single corporation.
In addition to the OGL, Wizards also released the D20 System Trademark License. Basically, they wanted a method by which third-party publishers could indicate their compatibility with D&D, but they didn’t want to let them use the D&D trademark. So they created a new “D20 System” trademark, including logo, and let the publishers use that.
The D20 System Trademark License required publishers to use the OGL, but it added a number of restrictions. For example, books published under the D20 System Trademark License couldn’t include any rules for character creation.
The most notable of these restrictions, however, was the D20 System Trademark License could be unliterally canceled by Wizards of the Coast at any time, after which publishers would have to stop selling any books that used the D20 System trademark.
(Spoilers: This will be significant later.)
THE PROBLEM WITH SUCCESS
The OGL ended up being more successful than anyone could have imagined. Dozens of companies began publishing third-party support for D&D. Entirely new companies were founded, many of which have become major players in the RPG industry. And for players and DMs there was an unprecedented wealth of amazing material – new adventures, new classes, new settings.
All of this fueled a D&D renaissance.
But not everything was going according to plan.
First, Dancey’s evergreen books – like the Epic Level Handbook and the Psionics Handbook – weren’t selling the way he had hoped they would.
Second, the thing about a plan to design and publish fewer books is that you can downsize the design department. And the design department at Wizards of the Coast had some strong opinions about that.
Third, competition between third-party publishers was driving a radical improvement in production values. Wizards of the Coast was still making the softcover, black-and-white books they’d always been publishing. OGL publishers, on the other hand, were producing full color books in hardcover. Wizards’ books, which should have been premiere products, instead looked cheap and second rate.
By 2003, leadership at Wizards of the Coast was also changing. Most of the designers of 3rd Edition were gone, and Dancey had also left the company. The new leadership was, at best, skeptical of the OGL. According to many accounts, they were actively hostile to it.
But, of course, they had a problem: the OGL couldn’t be revoked.
