Giancola v. WotC

So, the Magic the Gathering1 Wikipedia Magic the Gathering <https://en.wikipedia.org/wiki/Magic:_The_Gathering> drama circles have ignited by a public statement2 Donato Giancola, 26 March 2024, Facebook <https://www.facebook.com/donato.giancola.7/posts/pfbid02sseDdjseRuve7SBXfWAcdKB2vVmjd5fkjZGQv4idrJVteKgeUHJqvGHaDW19y6gZl> issued by legendary fantasy artist Donato Giancola, calling out Wizards of the Coast3 Wikipedia Wizards of the Coast <https://en.wikipedia.org/wiki/Wizards_of_the_Coast> (“WotC”) over the work of their contracted artist,4 Fay Dalton. Personal web site of Fay Dalton <https://www.faydalton.com/about> At the time of writing it has 1.7 k “likes” and 481 shares.

For reasons that are unclear to me… there seems to be a trend to claim a lawsuit is in the works and that Wizards of the Coast will lose because… some hands look like other hands. So, briefly let’s look at the causes of action that people think are available… and how that’ll go.

At this time, I can’t find any evidence of an actual lawsuit. Anyway, my name is Kim, I’m a law student in New Zealand – I’m not a lawyer, certainly not a US Copyright lawyer and most importantly I am not your lawyer. None of this is legal advice and please, do not take legal advice off blogs or assume you have a confidence relationship like lawyer-client with the a blogger.

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TSR LLC vs Wizards of the Coast LLC – FIGHT!

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:

But well… for the rest…. they decided to fight…

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OGL 1.2, contracts and getting sued

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:

  1. I am not a lawyer and make no claim to being recognized as one anywhere;
  2. I’m not your lawyer and so the following is not individual legal advice;
  3. In every case there can be facts, etc that influence the general principles;
  4. Lots of law scenarios are “untested” in the sense nobody has taken it to court and gotten a final verdict;
  5. 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.

Continue reading OGL 1.2, contracts and getting sued
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    C v Holland [2012] 3 NZLR 672