Legal Issues in Gaming: The Open Game License

Since I started writing about legal issues in tabletop gaming, several people have asked me about the Open Game License because some of my other posts seem inconsistent with what everybody knows about the OGL. After giving it some thought, I have decided that I should address it sooner rather than later. As a background, it may be relevant to review my introduction to copyright and gaming.

The Origin of the OGL

The Open Game License was first given life during the creation of the Third Edition of Dungeons & Dragons. Built on the idea of the GPL (GNU's General Public License), Wizards of the Coast intended to create a sort of generic version of the new ruleset, dubbed the d20 System, and allow third parties to create content for that system that is compatible with Dungeons & Dragons. Ryan Dancey, one of the (former) WotC employees who motivated the OGL, spoke to the overall intent of the license:

The Trademark.

The net result is that D20 becomes a rosetta stone for making products that will be compatible with Dungeons & Dragons, without requiring us to issue a blanket license for the D&D trademarks. In other words, we want to use the trademarks of D&D to hold the value of the business, rather than the rules themselves.

In this way, Wizards of the Coast would make a remarkable change from previous legal stances regarding Dungeons & Dragons and the law. TSR, Inc. had a reputation for threatening lawsuits against people releasing D&D adventures, modules, or other content without a proper license. The OGL as presented to the public seemed to be a very public way to change the relationship between the owners of D&D and the larger community. Like the GPL, the OGL was intended to make the d20 System the Open Source of the tabletop RPG world.

A Tale of Two Types of Content

Wizards of the Coast provided the Open Game License, version 1.0a, for anybody to utilize in their product. Although it contains a significant amount of legal language, an important part of the license is the first paragraph. The license differentiates between two types of content in role-playing games: Open Game Content and Product Identity content. Generally, the creator of content allows other parties to utilize Open Game Content while Product Identity elements remain protected and controlled. Knowing what falls within each type of content is important to knowing what the OGL does and does not do for content creators.

Product Identity is simple enough of an idea to make it worth discussing first. The OGL uses quite a lot of language to describe PI but it can be more readily summarized as creative expressions, such as characters, stories, and other creative content protected by copyright or trademark. From a legal perspective, Product Identity is not terribly interesting because its essentially just copyrighted content and the OGL does not allow third parties to utilize that content. However, contrast the idea of Product Identity with that of Open Game Content (OGC).

"Open Game Content" means the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity and is an enhancement over the prior art and any additional content clearly identified as Open Game Content by the Contributor, and means any work covered by this License, including translations and derivative works under copyright law, but specifically excludes Product Identity.

This important process is what the OGL
is all about sharing, right?

OGL 1.0a, 1(d). Based on this definition, OGC includes a wide variety of content. Most people understand OGC to include all of the game mechanics of a system, from rolling specific dice for specific situations, creating characters in specific ways, and methods for resolving conflicts. When looking at the language of the definition, it is worth contrasting it with the following section of copyright law.

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

17 USC §102(b). The definition of OGC also includes some suspicious patent language, such as referencing a specific embodiment or prior art. Perhaps, a better way to describe OGC is to say it includes all of the content that does not fall under copyright or trademark protection, including any patentable content, and anything else specified by the creator.

Given all this, it may be helpful to describe Open Game Content and Product Identity a little bit differently. Product Identity is specifically content protected by copyright and trademark while Open Game Content is specifically content that is legally unprotectable or protectable via a patent.

License to Breathe

Perhaps the most interesting aspect about the OGL is the fact that a majority of the content that the license gives permission to use (the Open Game Content) is content that the creator had no legal control over to begin with. As noted podcast Law of the Geek described it, the OGL was a license to breathe. The permissions granted over Open Game Content was no more a grant than had existed without the OGL. If that is the case, what's the point of the OGL?

If somebody were to devise the rules to a role-playing game system and patent it, the OGL would be a way for them to retain their legal protection while allowing third parties to publish content in compliance with the license. Of course, patenting rules to a game has its own share of problems and thats why its rarely ever done. After a brief search through Google Patents, I cannot find anything that could be interpreted as a role-playing game. So, if nobody is patenting the rules to a role-playing game, why the OGL? Simple answer: TSR, Inc.

This is why people *think* we need the OGL.

TSR and the Law: A Brief Historical

TSR, Inc. had a long history of trying trying to protect the D&D line through licensing agreements, trademark disputes, and other legal action. The earliest example comes from a licensing agreement between TSR and a company called Judges Guild. Judges Guild was, for all intents and purposes, the first company to conceive of writing and publishing adventure modules for the D&D game. Founded by a man named Bob Bledsaw in 1976, he specifically went to TSR to seek some sort of agreed license to publish this kind of content. They agreed and the license remained in place until 1982, the point that TSR realized there was money to be made in adventure content and they cancelled the license.

Only a few years after Judges Guild, TSR had a new upstart competitor by the name of Mayfair Games. Founded by an attorney named Darwin Bromley, one of Mayfair's earliest products was a series of AD&D adventures known as Role Aids. Within two years, TSR was already threatening legal action against Mayfair. The result from that dispute was the 1984 trademark agreement, an agreement between Mayfair and TSR that allowed Mayfair to utilize the TSR and D&D trademarks in a limited fashion. The important element in this potential suit and future agreement was that it centered around trademark use and infringement. Nothing here concerned rules, game systems, or the like.

This is what it looks like to publish a product
for AD&D without a license or OGL.

In 1992-93, TSR brought suits against two different companies: Game Designers Workshop, for developing a game by Gary Gygax called Dangerous Dimensions, and Mayfair Games, for allegedly violating the terms of their 1984 trademark agreement. Neither case went to trial but were, instead, settled out of court. Both settlements saw TSR buying out the other parties entire interest in the contested property. From a legal perspective, these cases suggest very little because nothing was ever really decided by a court. But, from the perspective of a fledgling game publisher, these cases tell you that you'd best play ball with TSR or you'll get sued and bought out.

The Concession that is the OGL

When Wizards of the Coast created the OGL in 2000, it did a strange thing. The owner of Dungeons & Dragons was saying to the world, "We will allow you to utilize this game system as long as you abide by this simple, harmless license. We concede." From that concession came the Year of d20. New companies, new imprints, and many new products continued to appear on game store shelves. From what can be seen, the OGL ushered in a new era of Dungeons & Dragons.

Despite this era of good feelings, the reality is that the concession that was the OGL was really no concession at all. The OGL granted no rights or privileges to third party publishers that they did not already have. TSR's history of legal action never focused on the rules of the games or copyright issues but instead on trademark infringement/confusion. WotC did not give up any legitimate legal rights or protections when they allowed the world to publish under the OGL. [Note: They did agree not to bring suit against licensees, but since the suit would be without merit, that is not much of a right to surrender.] The OGL only became the backbone of the modern RPG community because Wizards of the Coast (specifically, Ryan Dancey) convinced the RPG community that it was the best idea.

Conclusion

This brings up the question: what's the point of the OGL? At this point, the OGL is a relevant issue in the modern tabletop RPG community because people think it is necessary. Mutants and Masterminds could have existed without the OGL. Pathfinder could have existed without the OGL. Fate could have existed without the OGL. 13th Age could have existed without the OGL. All the OGL did was let people know that they could do the things they could already do.

Does the tabletop RPG community need the OGL? Probably not. Like several legal minds have said, it's nothing more than a license to breathe. But, for a community that thought it could not breathe without permission, the OGL serves an important purpose. It let's the gaming community feel safe about publishing game content, something that has had a long history of being a quasi-dangerous game.

The statements made in this article are the opinions of the author (and the author alone) and do not constitute legal advice. Comments posted on this article do not create an attorney-client relationship. Much of the historical information in this post come from a series of articles written by Shannon Appelcline. For additional historical information, look for his upcoming four volume work Designers & Dragons, coming in 2013.

Design Thoughts: Ability Scores

Role-playing games have been many things throughout the years. People spend countless tweets, forum posts, and emails debating what it means to play a role-playing game or not. A common feature of many role-playing games is the presence of some sort of ability scores (or attributes) that define a character. However, every game defines characters in different ways, stressing different features that are important for a particular context and leaving out those that are not. What role attributes or ability scores can serve in a role-playing game is important to the design of RPGs.

Generally, the design approach seems to come from the perspective of attempting to summarize a character's actual attributes in a sort of quasi-realistic manner.Dungeons & Dragons uses the classic six: Strength, Constitution, Dexterity, Intelligence, Wisdom, and Charisma. GURPS uses only four: Strength, Dexterity, Intelligence, and Health. Savage Worlds uses Agility, Smarts, Spirit, Strength, and Vigor. The Palladium role-playing games (Rifts, Robotech, et al) use a rather arcane set of abbreviations as abillity scores: M.E., M.A., I.Q., Spd., P.B., and so forth. Although the details are different, they all attempt to summarize your character's ... attributes.

Rolling stats, but not with an eight-sided die...

Different games approach the assignment of these attributes differently. Original Dungeons & Dragons made it a random affair, with nothing more than a roll of 3d6 for each ability score. A lot of games, especially later RPGs, began to use point assignment systems to create a certain measure of balance. Even Dungeons & Dragons would eventually use the point buy model for official play, resulting in characters who had a relatively stable range of ability scores. Games like Savage Worlds and GURPS have used a point buy method since their inception in an effort to create balanced characters but also to allow the player to craft the character that they want to play.

Since the announcement of the new Dungeons & Dragons, I have found myself thinking a lot more about what makes for good role-playing games. Granted, this is an almost purely intellectual exercise because so much about role-playing games is subjective to the player. Furthermore, the people you play with can often be more important than the rules themselves. However, since design has become such an important point of discussion, especially with the rise of so many new RPGs and, in the alternative, story gaming, I thought it would be relevant to put my experiences into written form.

Ability Scores as Role-Playing

One important thing that attributes or ability scores do is give you a basis for role-playing a character. This seems most relevant to games such as the original Dungeons & Dragons where you randomly roll ability scores (and, thus, randomly generate a character). Is your character smart or clever? Charming but dumb? Looking to your ability scores can be a great way to determine how you might role-play a character that you are otherwise unfamiliar with.

Now, with that being said, I generally think of a character before I ever sit down to "make a character." I suspect that a lot of people (but not all) do it this way. Although I may try to match ability scores to the idea of the pre-conceived character, I rarely let game mechanics get in the way of what I want to do. Unfortunately, I sometimes find that the mechanics do not always comport with what I want to do with my character, resulting in a certain disconnect between my character and his or her written ability scores. My character may require a high ability score in one area simply for mechanical purposes, but I do not let that interfere with my notion of how the character may act in play. My perfect example of this is the peculiar requirement in AD&D2 that a Paladin have a 17 or higher Charisma score.

Nothing about this screams "Charisma ≥ 17."

Somehow, it was decided at the great TSR game laboratory that Paladins (essentially, holy knights) are charming, beautiful, compelling people and must be so prior to entry into the Fancy Order of Paladins. Yet, I can remember at least one time when my particular notion of a Paladin character, or even an iconic imagining of the role, was anything but that. Where they all just pretty people? Or was it a measure of their force of will? Where they all just very charming? Would turning less pretty get you expelled from the Fancy Order of Paladins? The idea of the extremely unpleasant Paladin seemed completely believable (and even expected, at times) but mechanically impossible in the AD&D2 framework. It felt like the Charisma restriction was just a peculiar way to limit the number of Paladins out there as very few people would roll a 17 or 18 and then choose to stick it in Charisma. To that end, it had nothing to do with role-playing. So, if that's the case, what does it matter whether my Paladin was a handsome and charming warrior or anything but that?

Tracking What is Important

How and what is represented through ability scores is important in that it says something about what is or is not important in the game. Sometimes, the way different games treat different characteristics is fascinating and impacts its relevance in the game. GURPS treats physical appearance and charisma as advantages to be chosen independent of the numerical attributes (similar to how having one eye would be chosen) while Dungeons & Dragons (typically) groups them together as a single ability score (Charisma) that is generated along with the other five ability scores. What a game chooses to represent as an ability score and how that representation is implemented is important.

But is an ability score or a feature? This guy doesn't care.

In thinking about the different handling of Charisma by games like GURPS and Dungeons & Dragons, an important question presents itself. What is essential enough to be represented by ability scored? What is the purpose of representing something as an ability score? Does this specific role-playing game even concern concepts represented by that ability score? Should every game use similar scores or do certain types or styles of game require different ability scores? At the end of the day, what's the point?

As a serious board game player, I actually find that the adventure/role-playing board games are an important thing to look at when thinking about the role-playing game. I am reminded of Flying Frog Games' A Touch Of Evil; The Supernatural Game and Fortune & Glory: The Cliffhanger Game. Both of these games flirt in the "adventure/role-playing" realm. Characters in those games have ability scores that are keyed to things that happen in the game. In A Touch of Evil, a game about fighting horrible monsters in 18th century America, each character has ability scores for Spirit, Cunning, Combat, and Honor. In Fortune and Glory, a pulp adventure game in the style of Indiana Jones, each character has ability scores for Combat, Agility, Cunning, and Lore.

A potential character on a 4"x6" card.

What I liked about the presentation of those games was that you had a character with functional mechanical ability scores that were tailored for the kind of adventures the game was intended for. Never, while playing those games, did I stop and think that there wasn't enough explained or accounted for. Granted, this was a relatively basic adventure-board game, but it definitely got me thinking about what is relevant when designing a ruleset.

Fantasy Flight Games, another noted American board game publisher, produces a number of adventure board games that dip their toe into the realm of role-playing. Games like Descent: Journeys in The Dark or Mansions of Madness present characters with certain ability scores like Marksmanship, Intellect, or Luck that have specific use in the context of the game. What is important with these games is that each ability score has some specific function in the game. You only have a Luck score because it matters. Same with Strength or Marksmanship.

In the end, it seems that ability scores are important for tracking concepts that are important to playing the game. A certain ability score should only be there if it is something that would come up in play and matter to the outcome of events. Sometimes, it may be worthwhile to track certain things in certain different ways because of how important that thing may be or how frequently it will be an issue in play.

Games without Ability Scores

All that being said, not every role-playing game uses ability scores. Spirit of the Century has you generate characters in a most interesting manner that involves creating the pulp novel that character appeared in, determining what other characters were guest stars in that novel, and assigning the character ability at a certain number of relevant skills. The character you are role-playing is defined not by a number of ability scores but instead by a handful of skill assignments, these particular story elements, and a set of ten "aspects" that relate to those story elements. Although it ends up feeling less "gamey" than a game like Dungeons & Dragons, a great deal of thought was still put into how a player's character would interact with the world while being fundamentally distinct from his adventuring peers.

This guy feels no need to track his attributes.
Just bananas and jetpack fuel.

The new Marvel Heroic Roleplay game has a very different notion of what defines characters. Here, iconic heroes are defined not by a series of fixed attributes but by their super powers and a number of iconic characteristics (distinctions). For example, Captain America is defined by his two powers (Super Soldier Program and Vibranium-Alloy Shield), iconic distinctions (Lead By Example, Man Out of Time, and Sentinel of Liberty), and a handful of skill-like specialities reflecting his combat and physical training.

That's right. Captain America does not have a
Strength stat except as it relates to his powers.

In comparison, Iron Man has powers more suited to his character (Powered Armor and Weapons Platform), more identifiably Tony Stark distinctions (Billionaire Playboy, Cutting Edge Tech, and Hardheaded Futurist), and a set of specialities that reflect his expertise in science and business. In addition, every character in the Marvel role-playing game are rated on their ability to function in a group, with a buddy, and on their own. All of these different characteristics and features come together during play, giving the player an opportunity to do things that fall in line with what would be expected of the character.

There are a lot more examples of games that do not use "ability scores" to represent a character. These are only a few examples. What is important to realize is that these games are completely functional role-playing games that accomplish the essential elements of role-playing without requiring the use of ability scores. Thus, despite what generations of Dungeons & Dragons games have taught us, measuring a character's attributes such as strength or intelligence is not necessarily essential to making a good role-playing game.

Potential Perils of Ability Scores

This Dwarf is a Shaman.
Strength is his dump stat.
Couldn't you tell?

Dungeons & Dragons, with its iconic six attributes, has slowly expanded the role of the ability scores over time. By the Third Edition, ability scores that had classicaly been "dump stats" suddenly starting gaining mechanical relevance. By the Fourth Edition, each ability score had relatively equal relevance in the game system, with a variety of classes utilizing previously forgotten scores such as Charisma or Wisdom for basic attacks. A sorcerer or a warlock must have high Charisma to do well with her powers while a Cleric uses Wisdom to do attacks. On its face, this seems like a great idea.

One of the peculiarities that began to happen in these later editions of Dungeons & Dragons is that many players disconnect the ability score from what it actually means. Charisma is less a reflection of how charming, attractive, or willful a character is and instead reflects a Sorcerer's ability to deal damage, a Paladin's ability to empower himself with divine strength, or a Bard's ability to heal. Since the game aspect is so dependent on an arrangement of ability scores in a certain way, players do not look to their ability scores to define who and what the character is and instead focus more on things like race, class, background, and theme to explain the character. The importance of the ability scores seems diminished when you start to look at it this way.

Of course, if the ability scores are just a representation of how effective a character is at his skills or powers and most players will select an arrangement of ability scores that follow a very specific distribution, the question arises: why even use ability scores? Why do we need to track Wisdom or Strength if every Cleric will have 18 or 20 Wisdom and every Fighter 18 or 20 Strength? Maybe it would be more convenient to say that every character has certain fighting abilities based on a more generic Combat ability score, akin to the the Flying Frog board games. Or, perhaps, eliminate them all together. Would it matter that a Fighter is as good at attacking with his sword as the Wizard is at striking with his magic? Do we need to ability scores to help represent that? It is hard to say.

Take Away in the End

When I first sat down to write about ability scores, I really thought that the best solution would be to get rid of them entirely from the role-playing game. After spending time playing through a few different games, I wonder if there is some value in keeping ability scores but either making them more abstract while cutting down the number of concepts represented by ability scores. As a big board gamer, I am excited by the simplicity of a game like Mansions of Madness or A Touch of Evil. As I continue to look over different role-playing games during this time of market upheaval and evolution, I will continue to think about what kind of ability score system, if any, would be best to properly describe the kinds of games I would want to play.