Kenzer & Co, D&D, and Trademarks
Written on Jul 09, 2008 // News.Kenzer & Company have released the Kingdoms of Kalamar fantasy campaign setting as a 501-page PDF. The book references Wizard of the Coast’s 4th Edition Dungeons & Dragons classes, races, monsters, and includes expanded background details, and more than 50 new game mechanics compatible with the 4th Edition D&D rules.
What is very interesting about this publication is that Kenzer & Co have opted not to use the Game System License that Wizards of the Coast has offered to 3rd party publishers to display the official D&D logo and associated text to indicate compatibility with their game. Instead they are simply displaying the text “for use with Fourth Edition Dungeons & Dragons®” on the cover of the book.
Nominative Use, also known as “trademark fair use” allows the use of a trademark as a reference to describe the product (eg. “All Parason Flexor and Gillette Sensor handles are compatible with this blade”) or to compare it to their own product (Pepsi and Coke).
David Kenzer, the president of Kenzer & Company, is also a lawyer specializing in Trademark and IP law. When asked whether referencing the 4th edition rules without signing up for the Game System License he had this comment:
“that is not copyright infringement.
copyright infringement is basing your work on someone else’s creative expression. Rules are not creative expression. Also, it is not “based” on their rules. It happens to “work with” their rules.
SHould every programmer that writes a program that works with a computer have to pay the owner of the OS it runs on? I think not. I could be wrong, but fortunately, the US and International copyright laws agree with me.
A world where one could not reference others’ materials in their product would be a dark and sad place.”
Indeed that echoes what the U.S. Copyright Office has to say about games and copyright.
“The idea for a game is not protected by copyright. The same is true of the name or title given to the game and of the method or methods for playing it.
Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form. Copyright protection does not extend to any idea, system, method, device, or trademark material involved in the development, merchandising, or playing of a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles.
Some material prepared in connection with a game may be subject to copyright if it contains a sufficient amount of literary or pictorial expression. For example, the text matter describing the rules of the game, or the pictorial matter appearing on the gameboard or container, may be registrable.”
It will be interesting to see whether other companies who had planned on producing supporting material for Dungeons & Dragons, but were put off by the strictness of the Game System License, decide to follow Kenzer & Company’s lead.
Daniel M. Perez
Jul 09, 2008, 4:41 pmInteresting. Thanks for asking those questions to David.
I’m horribly intrigued by this move, and by the general move towards eschewing the GSL and going copyright/fair use in general. I want to see what will come of this as I think where others have been sort of skirting the issue by claiming compatibility with “4e”, Kenzer has certainly one-upped everyone with their declaration, becoming either the rallying point or the target.
Ben Balestra
Jul 09, 2008, 10:22 pmThis is very very interesting. This seams to harken back to the old Palladium Books vs. Wizards of the Coast incident over Primal Order back in 1992. Wizards produced a product with stats for various creatuers for a number of differnet games, including Palladiums house system. Palladium’s said it violated their copyright becase it used their system, but it did not actually reproduced anything from Palladium’s games, except for using a state block system looking like Palladium’s.
In an interview Peter A. said that he felt that any company should be able to made a supplement for anyone else game. I alwasy felt that that might have been a lot of the reason for the D20 OGL. So now it has come full circle. Peter A. might not be their any longer, but is still WOTC, only now they have the game other are going to make supplements for.
Stuart Robertson
Jul 09, 2008, 9:23 amDavid Kenzer made these comments on the Kenzer & Co forum here:
http://www.kenzerco.com/forums/showpost.php?p=678235
There’s also some good discussion, including comments from Mark Plemmons of Kenzer & Co here:
http://www.therpgsite.com/showthread.php?t=11100
Joe Bob
Jul 09, 2008, 11:08 amI want to remind everyone that OGL is a valid option even now. If this company really wanted to “show it to WoTC” instead of thinking about their own profit margin, they could have done what Paizo did, or if that was too much, than support the new Pathfinder game line, or yet just release their stuff for 3.5 until Pathfinder is released.
Stuart Robertson
Jul 09, 2008, 11:15 amI really don’t think Kenzer & Co want to “show it to WotC” as it were — I think they want to publish 3rd party material that *supports* WotC, but they want to do so in the way they’re normally entitled to under Trademark and Copyright law, rather than the very restrictive and uncertain way outlined through the new GSL.
Steve Turner
Jul 09, 2008, 10:42 amWhat I find fascinating about the debate about the GSL is its all US centric. What happens if a UK publisher creates some 4th edition material and then Hasbro tries to shaft that company, have the US lawyers actually examined how it would stand up to UK laws about restraint of trade or unenforcable terms?
The licence may be there to protect WOTC but the UK Legal System can be very good at protecting its own, especially where the legal playing in field is level regardless of the amount of money you can throw at it.