A photo of reading glasses resting upon a book.

So you want to license…

Okay, so Open RPG Creative (ORC) is out and a lot of people want to know whether they should use it or another license… and sadly ORC doesn’t really provide a lot of guidance one how to do that – its jargon laden text reads like something written by a copyright lawyer for copyright lawyers… hang on…

…I am being told Brian Lewis of Azora Law, lead on the ORC project, is a copyright lawyer who works in a firm of copyright lawyers.

Well that explains a lot.

So, here’s your quick and dirty primer to understanding licenses and which is right for you.

In case you don’t know me, my background is I’m a law student in New Zealand. I’m a not a lawyer, I’m definitely not your lawyer and what follows is not personalized legal advice and doesn’t form and sort of client-lawyer privilege. Please do not rely on blog posts for your legal advice.

Qualifying for copyright, or “does it even?”

Thanks to a generation of grifters trying to sell you fake money to buy ugly images of apes, there is a lot of confusion about what constitutes intellectual property. Most recently, that’s been compounded by grifters trying to sell subscriptions to AI programs that make drawings of big titty anime girls no matter the prompt.

It’s made even more confusing in that lots of people talk about US laws like they’re universal (looking at you ORC), when in fact they vary from jurisdiction to jurisdiction.

For that reason the following primer is deliberately vague and doesn’t cite any particular tests, because the tests and the standards used will be determined by the jurisdictions involved.

What qualifies for copyright

To qualify as copyrighted intellectual property – something must be:

  1. Creative. As in, created by a human with some sort of ingenuity or creative flourish. It can’t be generated by a machine, an animal, or random change – it has to have a distinct element of human creativity to it.
  2. Substantial. You can’t just invent a word and then claim its a copyrighted character, concept etc there has actually be something substantive enough you can call it a character. A single piece of concept art may qualify, if it’s encompassing enough – but a general vague concept will not.
  3. Original. You can’t just run a find-replace on an existing product, trace over a photo of a celebrity, etc. I can be inspired by something, or even a parody of it, but you have to make it your own somehow. This applies to variants of your own work.

It does not need to be:

  1. Good. Countless so-bad-i-hate-myself-now stories, artworks, comics, games, etc all are technically protected under copyright because generally speaking, courts do not consider it their job to be critics of the medium, just adjudicators of law. Something can, in fact, qualify for copyright by being a creative attempt at reproduction that is executed so poorly – it becomes original.
  2. Registered. While many areas require you to register a copyright in order to defend it or take legal action, the current standard is if you create it – you own the copyright on it (provided it qualifies). Placing copyright information is best practice though, for clarity.
  3. Widely published. If I write the greatest enemies-to-divorcees smut fiction the world has ever seen, and I keep it on hidden on a thumbdrive – it still belongs to me. Someone who acquires the thumbdrive doesn’t automatically gain any rights to it.

It can also be excluded from copyright if it is:

  1. Too utilitarian. You can probably copyright one particular duck-handled corkscrew, but you can’t copyright the concept or the general design – because it’s a thing you uncork bottles with.
  2. Data. If you compile a list of every fantasy creature ever used in a Sword & Sorcery RPG along with the information about the place it was first published, by who, etc – that’s probably going to feel like a labour of love – but at the end of the day it’s a spreadsheet of information – not a creative project.
  3. Conceptual. You may pioneer a bold new genre, take creativity places its never been before and you can own all the original works in that genre – but you can’t own the wide concept, or, as many an embittered individual bemoans “the idea for…”

Why does this matter for a TTRPG?

Counter intuitively, a lot of the stuff that people work the hardest on in role-playing games is in fact the stuff that does not qualify for copyright – the mechanical concepts and game data. Telling a story and then rolling a die to determine the outcome of a decision has never been a copyrightable concept, and so the vast majority of rules systems boil down to specific implementations and data.

No matter how artfully refined, how carefully calculated and tested your new super-crunchy system is – getting the actual rules to be recognized as worthy of copyright is going to be an uphill battle to get a court to agree it even can be copyrighted, let along there’s been an infringement.

Conversely, those fourteen notebooks full of lore, scribbled out family crests, building layouts and the family tree of every noble your self-insert banged – those are all things that do attract copyright and thus can be complicated to license out.

Putting an open license on a rule set that uses seventeen d4 to resolve all concerns is not a high risk decision because the statistics are all data and thus, all you can really own is the exact wording and brand identity associated with it – not the bit everyone’s actually there for.

Putting an open license on a supplement with four new monster types, and seventeen new spells is actually kind of a big deal because it can mean that people who might have paid you for exclusive use of it are now either going to use it for free, or avoid it because it’s no longer unique.

Truly the most important thing to know going into an open license is – what do you want to put in it?

Then you’ve got to decide, how much of that thing and under what conditions?

(continued on the pages below)

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