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”.
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.
