During 2022 and 2023 there were numerous disasters engaged in by nuTSR, most of which are pending a final resolution – but the most spectacular and all reaching was the lawsuit of TSR LLC against Wizards of the Coast LLC. Many of these aspects were not easily understood by someone without a background in law or intellectual property.
Prelude
It can be safely assumed that once the intention to use the old TSR Inc trademarks became public, Wizards of the Coast would have instructed legal counsel to write polite, but firm, letters to TSR LLC advising them that they did not have the right to do so. The exact details provided etc are not available to the public, but it is an all but mandatory courtesy in these situations.
This seems to have worked to a certain degree, as the following trademarks were surrendered/abandoned without a fight:
Diagonal TSR (Surrendered commenced 7 September 2021)
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.
So Paizo has recently announced the release of their own open license, ORC, which was prompted by the OGL Fiasco. The license itself is a couple pages long and is accompanied by the an Answers & Explanations (“ORC AxE”) document to be referenced and used as evidence of intentions.
And it kinda sucks.
If you don’t know me, I’m a Law student in New Zealand and I have experience in fraud investigation for online payment gateways – a role that requires a lot of deciphering all kind of documents and regulations. I’m not a lawyer, I’m definitely not your lawyer – nothing in this is personalized legal advice or forms a client-lawyer relationship. Please do not get your personalized legal advice from blogs.
Background
If you somehow missed it, in January 2023 there was a fiasco where various people reported receiving a leaked document. The leak proposed that Wizards of the Coast was in the process of repealing the sacrosanct Open Gaming License and replace it with a new one that came with content limitations and proposed to charge a fee to the top 1% of creators.
Eventually a copy made it’s way to Gizmodo journalist Linda Codega (they/them) and an objectively bad article (Gizmodo’s fault, not Linda’s, that’s how editorial responsibility works) was released. Opening Argumentssummarized it as “a hit piece”, but I think that’s inaccurate – the simple fact is that Linda and the wider collection of Tabletop Role-Playing Games (“TTRPG”) commentators didn’t understand how contracts, intellectual property and business work. Gizmodo for it’s part, didn’t seem to care beyond making sure they were not likely to be sued – so didn’t provide their write who mostly does reviews any
Riots ensued. Platform after platform pivoted into talking about the OGL. A weird conspiracy theory that independent YouTuber Ginny Di was Wizards of the Coast executive insider. It was chaos.
During this mayhem, Paizo came forth, promising they would be creating a new open license, the Open RPG Creative (ORC), which would be irrevocable and perfect for all matters relating to gaming. It initially teased the idea of all kinds of over the top efforts, such as putting it in the hands of a non-profit, but ultimately was drafted by Azora Law (managed by Brian Lewis, who drafted the original OGL 1.0a) and a Discord server was set up for the “community”.
Perhaps one of the greatest bane’s of the mid-level Dungeons & Dragon party is trying to sort out and determine all the money they have so they can determine how much they need to spend on provisions for the next adventure, whether they can afford that hot pink magical backpack and how much they will have for amnesia inducing carousing afterwards.
Without a doubt, the problems magnify exponentially if you limit yourself to the traditional currencies and then use encumbrance rules – creating scenarios where parties are actively spending all their coins before going out on adventure again so that they can have capacity to carry loot out of the next dungeon that they visit.
The default system has many drawbacks, one being that it makes actual estimations of value and pricing a nightmare to track – which has invariably led to bizarre economic situations where parties crash local economies due to insisting on carrying only the most valuable coins in the vast hoards they keep in interdimensional pockets, or spend staggering fortunes before going out on another adventure purely so they can have capacity to carry out treasure after their next victory but are never sure how much anything costs without looking up a book out of character.
So, having burned countless bridges and decided that he no longer needed to partner with TSR LLC to publish his game that he previously couldn’t publish – Dinehart had a whole bunch of issues to deal with:
A bunch of people had pre-ordered to support the nuTSR group – so were not happy about the money going elsewhere; and
A bunch of them were reactionaries who were angry as fuck to find Dinehart supported the notion of being non-binary (in a way that he finds interesting and approves of, only); and
It was now, according to the Kickstarter, 15 months overdue; and
One of the key flaws of the Kickstarter was that it promised a maximum of 100 1st Edition boxes only – which was never going to be profitable or something you could launch a theme park off; and
It was only available in hard copy, which meant that if you wanted to order it to say… New Zealand, it’d more than double the considerable cost of $79.99;2 My Twitter, 16 July 2021 https://twitter.com/wincenworks/status/1415946235509305348 and
While the project web site and credits of the books that were eventually released boast a huge team of titans, if we consider the people doing the actual work and being part of Wonderfilled Inc… the team considered entirely of Dinehart. (Mandatory side note: Jeff Dee has requested he not be associated with the project, explaining it was artwork-only and work for hire,3 David Flor, 29 September 2021 https://twitter.com/BrainClouds/status/1442852326168010758 if you think Dinehart is going to respect this – you’re in for a lot of disappointment).
Hot off the presses, the nuTSR group (TSR LLC, Dungeon Hobby Shop Museum LLC, Justin LaNasa) has released a “new” product… weeks ahead of the opening for pre-order date, by listing it on Amazon via their Print On Demand service. It is unclear why they opted to do both print-on-demand and a pre-order bulk print system… but that’s the least of the problems.
The product is, in summary: an playable mess of useless gibberish that radiates contempt for creators of role-playing games, for people who enjoy role-playing games and that mostly showcases the inadequacies and insecurities of the creator. It’s also an interesting study in when a rip-off reaches the point of copyright infringement through being an unauthorized derivative work.
So I wanted to talk about some of the more complex issues that don’t fit into 280 characters or reasonable sized videos (let me know if you think I should do a Noah Caldwell-Gervais style essay).
Okay so Wizards of the Coast (“Wizards”/”WotC”) announced a new version of the Open Game License (OGL), the magical document that lets people publish material that is basically plug & play compatible with Dungeons and Dragons (“D&D”).
This has a lot of people rushing to give you their thoughts on it, even before they had time to read it – and the Free Speech crowd even had speeches prepared about how it’d be bad! I would like to say I’m doing this because I got asked to, but the truth is I’m doing this because my social media feeds have been an onslaught of panic mongering and misinformation.
My background
I have been a D&D player since Advanced Dungeons & Dragons 1st Edition, specifically my entry to it moving from Fighting Fantasy books by Steve Jackson Games to The Curse of the Azure Bonds game on the Commodore 64, which was a heck of learning curve for a 10 year old before getting to play with actual people in boarding school. I also worked for Wizards of the Coast back in the late 90s, early 2000s as a Community Manager (I moderated the roleplaying chat room). I am the current owner of, and have been effectively the primary community manager for Hitmanforum for about twenty years now.
Currently, I am a law student in New Zealand who also has extensive experience (10 years) working as a debt collector and substantial experience (5+ years) as a fraud investigator for online payment gateways. Now, if you’re wondering what a law student in New Zealand knows about laws in the USA – the answer is quite a bit since both use the Common Law system which comes from England so have many things in common.
In fact, they have so much in common that when dealing with a novel case (ie one where there isn’t a clear precedent) the New Zealand courts will often look to the case law of the USA (though priority is usually given to case law from the UK, Canada, or Australia). This has even extended into occasionally incorporating U.S. common law… such as the tort of intrusion on seclusion.1 C v Holland [2012] 3 NZLR 672
So, general principles work the same (I could nerd out about the differences in case law, but suffice to say it’d be woefully esoteric) but it’s important for you to understand:
I am not a lawyer and make no claim to being recognized as one anywhere;
I’m not your lawyer and so the following is not individual legal advice;
In every case there can be facts, etc that influence the general principles;
Lots of law scenarios are “untested” in the sense nobody has taken it to court and gotten a final verdict;
No law is permanent, statutes (even constitutional ones) can be amended or overruled, the highest court in the land can overrule itself – law is always in motion
It is therefore pretty much impossible for anyone to give you an answer with complete certainty on the key matters relating to the OGL 1.0a, and anyone giving you a high probability answer should be able to cite US case law to substantiate it. Currently, I am confident nobody outside of lawyers working for game companies is doing that, because it is a lot of work to not get paid for.
I’m not hoping to give you a full education here or an official legal opinion – I’m just hoping to help you understand why you can’t just trust a YouTuber or a blogger who says “I’m a lawyer…” and then doesn’t really cite anything or an influencer who assures you that they definitely know what they’re talking about because they just do okay? At this point, there is so much misinformation and misunderstanding that it takes basically a primer on how contract law actually works. There’s going to be a lot of talking about legal doctrines and concepts.
Also in case you’re curious, not I don’t particularly trust Wizards of the Coast or any immortal corporation that exists primarily to make money and whose leadership can change at a moment’s notice – that’s why I read the document instead of just rubberstamped with happy emojis and stuff. I also did not do any serious case or statute research for this, so it is possible there are quirks and issues I am not aware of.
Again, it’s not legal advice. Don’t get personalized legal advice off a blog.
Executive summary of the OGL 1.2
It’s fine. It could do with some elaborating to make it easier for the layperson to read, but it’s fine.
So, a whole bunch of people are congratulating themselves for having helped Paizo increase their market influence through a new open license ORC (it’s… just a catchier term for OGL).
Apparently you can’t own a system, but Ernie is the divine heir of Dungeons & Dragons, so it belongs to Justin LaNasa’s companies… and definitely not the rest of the Gygax family because they very understandably do not support Justin profiteering of their name.
However a few things are apparent.
Most people who commented and campaigned on this, didn’t understand how any of the following work:
Copyright
Licenses & Contracts
What the OGL is
What the OGL isn’t
What motivates corporations
What is not a victory
What they didn’t see in the OGL because they were too busy screaming about royalties and repealing OGL 1.0a
So… it would take… forever, like college level text book length to explain all of that… so I’m making a primer from a law student who is not your lawyer and so definitely not giving you legal advice and my advice regarding firm statements on law is the same as my advice for rodeo riding: If you don’t know exactly what you’re doing, leave it well enough alone.
If you haven’t set, but you want to read the document for yourself, Stephen Glicker, aka Roll for Combat, made a sanitized copy available in the description of his video. One thing you’ll notice is there’s a lot of signs its an early draft (there are placeholders, definitions aren’t clearly spelled out, etc). So keep that in mind.
Now, I tried to explain this before and people… pretty much ignored it, and it’s heavy stuff so I don’t expect anyone to come out of it thinking they understand perfectly now. If nothing else, what I want people to understand is that it is more complicated than what people have been saying, and if someone tells you that they definitely understand it and it clearly means x… they’re probably wrong on both points.
The reason this is frustrating is when people get into the mob mentality they make decisions they later regret, both things like burning bridges or signing up for inferior deals, and in actively spreading misinformation and social pressure that leads to other people doing that.
I’m not here to tell you what to do, but I do want you do whatever you do for your own reasons and with good information.
What is the OGL?
This seems to be the biggest point of confusion since a lot of people seem to think the OGL 1.0a was useful for making all kinds of games – including games completely unrelated to Dungeons & Dragons like sci-fi adventure games etc.
What it actually is a kind of license to fan-wank provided that you don’t use particular terms and don’t impinge on Wizards of the Coast’s market share or use some terms they’d rather you didn’t for… strategic reasons I could get into later.
Things covered under the OGL include the basic character races, classes, class abilities, feats, spells, magic items and some monsters. These are all laid out in the Standard Reference Document 5.1 (or “SRD5” as it is officially known because… that was a really weird decision by the people who drafted it and the OGL).
It’s very convenient if you want to skip over a lot of work, but it is also very specifically for promoting D&D – and that’s why it’s there. If there is a bunch of stuff that is 100% compatible with D&D available – that’s more incentive to play D&D, even if you never use any of it. It seems cool and like they care about the fandom and that there’ll never be a shortage of material if you start to get bored or want a change of pace.
From June 2021 to mid January 2022 – nuTSR went into a mission to try to build up credibility as a games company and recover from losing their flagship product as well as the individual they had given control of their social media presence to. Pretty much all of this effort would fall onto the shoulders of “volunteer” Michael Hovermale as Justin focused on talking things up and recruiting terrible people to make terrible products.
I put scare quotes on the volunteer because Justin and… accounts very defensive of Justin have always maintained that Michael was purely a volunteer who never expected to get paid – but as you’ll see he was doing an awful lot of work and putting up with awful lot of shit (including from yours truly) – so I’m inclined to believe this was supposed to be a “volunteer for now and then we’ll talk compensation” type arrangement.
Particularly given some later events involving some accounts called “Mario Real” but… more on that later in our story.
Side note: If this was professional reporting I would have reached out to people for comment, but since I didn’t do it while it was happening and I think there’d be rather massive differences in responses due to personal reasons. (Don & Michael would probably be happy to comment, I’m pretty sure Justin would not) Therefore all this is based on observation and public interactions.
The Official Discord
Before being promoted to head of PR, Michael had been the head moderator at the Discord and had implemented a lot of rules that were in place to try to keep the conversation entirely about games – and not about politics. These, ironically, would have been prohibitive of Justin being a member of the Discord – but Michael didn’t realize that yet.
And I want to stress here, as misguided as it was to try to run a Discord about any role-playing game with no discussion of politics around it in the first place – given that invariably a part of world building in role-playing games is working out the politics, and the implications of your interpretations of those politics. Even something as simple as creating a “good” society means making political statements on what is encouraged and what is encouraged by “good” people.
As covered earlier, while the overall reputation of Justin LaNasa, months of barely contained reactionary non-sense and unprofessionalism built the pyre for TSR LLC (LaNasa)’s reputation, and Ernie Gygax’s interview was the match that started it – Dinehart using his GiantLands account to call a trans woman disgusting was the accelerant that turned it into a bright blaze and caught the attention of the wider world.
The actions of TSR at the time are already documented, but the absurdity of Dinehart on his own account and the GiantLands account warrants its own entry – particularly given the many loft claims he regularly makes about himself. At the time, he was doing his absolute best to look incredibly important and a man of many, many important titles.1My Twitter (25 June 2021) https://twitter.com/wincenworks/status/1408342703394361346
It’s kind of amazing a guy who’s so busy and so important has time to tweet…
With credentials like that, you’d expect some sort of display of some professionalism… I mean… obviously not project management given how GiantLands had gone – but maybe something else like say marketing and communication? Well, I invite you to read his pinned tweet after he posted the “TTRPGs are the original safe space” nonsense.
Reminder this came up because he told a young trans woman she was disgusting. Also he’s tweeting this like Minecraft doesn’t exist now.
This is particularly telling because, contrary to what he claimed – people had in fact been telling him in detail why they disagreed with his claim. The issues of nightmare DMs who abused trust, the largely exclusionary history of the hobby, the presence of weird reactionaries in the hobby space, etc. His response to this was to dismiss this as “woke” and tell others not to be “woke” but “awake” because “it’s a lifelong journey” before promoting a “before of fake woke” posted by a fellow NFT enthusiast.2My Twitter (28 June 2021) https://twitter.com/wincenworks/status/1409233749137522688
