Kenzer & Co, D&D, and Trademarks
14 Comments // Written on Jul 09, 2008 // NewsKenzer & 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.
