- Roll For Initiative In The Battle Of Dungeons & Dragons’ Open Gaming License
Roll For Initiative In The Battle Of Dungeons & Dragons’ Open Gaming License
Update: On January 27, 2023, in light of the results from its playtest survey, WotC announced that it would be leaving OGL 1.0a in place and unrevised, and that the entire SRD 5.1 would be available under a Creative Commons license. The Creative Content license makes content freely available for any use, and cannot be altered or revoked.
Update: On January 13, 2023, WotC released a statement regarding an update to the OGL in response to the backlash it received. WotC has stated that the next OGL will contain provisions that allow them “to protect and cultivate the inclusive environment [they] are trying to build.” It will only cover content for TTRPGs, so expressions like educational and charitable campaigns, livestreams, and cosplay will remain unaffected. Additionally, the new OGL will not apply to any content that has already been released under OGL 1.0a. WotC further stated that the update will not contain any royalty structure or the license back/mutual use provision. The new OGL has not yet been released, so stay tuned.
In August 2022, Wizards of the Coast, who publishes Dungeons & Dragons and acts as a subsidiary of Hasbro, announced plans for One D&D, an update to the existing 5th Edition of the popular roleplaying game. The 5th Edition contained an Open Gaming License, OGL Version 1.0a, which has accompanied WotC and third-party created D&D content since 2000, and acts as a public copyright license allowing anyone to publish and sell royalty-free D&D materials, with some restrictions. Many believe this open-source license for user generated creative twists has contributed to D&D’s massive resurgence in popularity in recent years.
With the release of One D&D on the horizon, WotC revealed they will be implementing an updated OGL, Version 1.1, in an attempt to modernize the license language and reflect the sweeping advances that the internet, technology, and contemporary copyright law have brought over the past 23 years.
A draft of OGL 1.1 for One D&D was leaked on January 5, 2023. While WotC has not yet officially rolled out the updated OGL, the rumored revisions have been highly criticized by Dungeons & Dragons fans and third-party content creators. WotC has now become the “big bad” within its own community.
So, what exactly has everyone entering a rage? Below is a review of the old OGL 1.0a and a breakdown of what is potentially to come with OGL 1.1, including deauthorization of OGL 1.0a, what content is covered by OGL 1.1, the differences in non-commercial and commercial use, termination of OGL 1.1, mutual use, tiers for commercial use royalties and registration, and commercial crowdfunding. Here’s what you need to know:
Relevantly, OGL 1.0a granted a license for creators to use “Open Game Content” in derivative materials. Open Game Content pertained to the game mechanics such as methods, procedures, and routines, that “were an enhancement over the prior art,” so long as it did not embody “Product Identity.” Product Identity was defined as product and product line names, logos, and identifying marks such as “Dungeons & Dragons,” “Player’s Handbook,” “Dungeon Master,” and proper names including those used for spells and items. If you’re curious, a complete list of what you can and cannot use is available in OGL 1.0a and the System Reference Document (SRD) 5.1 that it is attached to (link above).
Critically, OGL 1.0a granted a “perpetual, worldwide, royalty-free, non-exclusive license” of the Open Game Content. Notably, this grants a “perpetual” right, but not an “irrevocable” right. Equally as important in this context is the provision allowing WotC to publish updated versions of the OGL—any authorized version of the OGL could be used “to copy, modify and distribute any Open Game Content originally distributed under any version.”
The DL on the new OGL 1.1
Creators will immediately notice that the leaked draft of OGL 1.1 is significantly longer than OGL 1.0a. According to the introduction, the revised license “is intended to protect the D&D brand by reducing creator confusion, preventing bad actors from tarnishing it, and preventing large businesses from profiting off of it without proper checks and balances.” So, what’s different?
Deauthorization of OGL 1.0a
One of the biggest criticisms is that OGL 1.1 specifically deauthorizes OGL 1.0a. While it is unclear, it appears as though OGL 1.1 will apply retroactively to third-party content created under OGL 1.0a, including other RPGs that are based on D&D, like Pathfinder, which is published under Paizo Publishing and largely considered a major competitor to D&D.
OGL 1.1 applies to the same Open Game Content (now referred to as Licensed Content) that was covered by OGL 1.0a and included in the SRD 5.1, such as basic game mechanics, and a selection of classes, monsters, spells, and items. If creators want to include Unlicensed Content (those that referred to as “Product Identity” in OGL 1.0a), they must obtain a separate agreement.
OGL 1.1 makes it clear that it only allows and applies to creation of roleplaying games and supplements in printed media and static electronic file formats (like e-publications and PDFs) (referred to in the OGL as Licensed Work(s)). Content creators looking to make other media like videos, virtual tabletop campaigns, novels, and apps are able to do so under the Fan Content Policy (discussed below) or a separate agreement with WotC.
Commercial vs. Non-Commercial Use
OGL 1.1 divides the complete OGL into two pieces—OGL: Non-Commercial and OGL: Commercial. It even provides comments and examples explaining which uses would be non-commercial and commercial.
OGL: Non-Commercial applies only to content where no money or anything of value (such as crypto currency) is being exchanged for access. Voluntary donations or tipping mechanisms are considered non-commercial, so long as access to the content is free regardless of the donation or tip. If creators are using SRD content to make a tabletop roleplaying game or game supplement, and offer that content for free, they qualify for OGL: Non-Commercial.
On the other hand, OGL: Commercial applies if any form or amount of payment is required to access your work or is specific to a particular work. This includes crowdfunding a new project, and accepting subscriptions, membership fees, or Patreon patrons as a condition of accessing your work.
OGL 1.0a included a generic termination provision stating that the license could be terminated automatically due to the creator’s failure to comply with all of its terms and failure to cure that breach within 30 days of becoming aware of the breach
OGL 1.1 includes a more in-depth termination provision, which allows for the license to be terminated automatically when (1) WotC intellectual property is infringed or misused, (2) creators violate any law in relation to their activities under the license, or (3) if WotC determines, at its sole discretion, that a violation of other provisions have occurred.
WotC is also able to terminate the agreement if creators breach any other term of the agreement and do not cure the breach within 30 days of WotC providing notice of the breach, and if the creator brings an action challenging WotC’s ownership of Licensed Content, Unlicensed Content, or any patent or trademark that it owns.
Meanwhile, the creator is able to terminate the agreement at any time by ceasing all distribution of their Licensed Works and providing WotC written notice.
The obligation to pay royalties (discussed below) survives any termination of the agreement. Additionally, creators waive their right to sue over WotC’s decision to terminate the agreement.
WotC makes it clear in the comment to this provision that content will not be licensed if it is used as a basis to release blatantly racist, sexist, homophobic, trans-phobic, bigoted, or otherwise discriminatory content, or do anything that triggers the provisions. While there appears to be no formal appeal process of WotC’s decision to terminate the agreement, it notes that it is “open to being convinced that [it] made a wrong decision” through community pushback and bad public relations.
“Share-Alike” and Mutual Use Provisions
OGL: Non-Commercial contains a “Share-Alike” provision that states that because creators are able to use the Licensed Content for free and on a non-commercial basis, creators agree that others can do the same with their work. It further states that this means that each time a work is distributed or made available, the creator offers the recipient a license to work on the same terms and conditions granted to the creator under OGL: Non-Commercial.
Both OGL: Non-Commercial and OGL: Commercial contain what can be considered a mutual use provision. While the creator will own the new and original content they create, the creator agrees to give WotC a “non-exclusive, perpetual, irrevocable, worldwide, sub-licensable, royalty-free license to use that content for any purpose.” Additionally, creators agree that nothing prohibits WotC from developing, distributing, selling, or promoting a work that is substantially similar to a Licensed Work.
Commercial Use Registration & Royalty Payments
Perhaps the biggest change and criticism of OGL 1.1 is that it requires content creators who use their content for a commercial use to register their works with WotC and pay a royalty over a certain threshold of earned income based on the Licensed Content.
OGL: Commercial includes three tiers of commercial use:
- Initiate Tier: Creators that have registered at least one Licensed Work but have not generated $50,000 or more in gross revenue from those works in a given year.
- Intermediate Tier: Creators that have generated more than $50,000 in gross revenue in a given year from their Licensed Work(s), but less than $750,000.
- Expert Tier: Creators that have generated at least $750,000 in gross revenue in a given year from their Licensed Work(s). WotC notes that if a creator is consistently meeting or exceeding this qualification, they may reach out to the creator for a more custom and mutually beneficial licensing agreement.
Creators in each tier are required to register any Licensed Work they intend to offer for sale with WotC. Additionally, once a creator reaches the Intermediate Tier and makes $50,000 in gross revenue for a particular year on Licensed Works (including revenue made from selling Licensed Works, crowdfunding those works, or any other income source), they will need to report such income and provide WotC with year-end numbers.
For those creators in the Expert Tier (those making over $750,000 per year), OGL: Commercial now requires a royalty on any amount of revenue over $750,000 in a single calendar year. To be clear, or perhaps to remind you that tax season is approaching, if $750,100 is made, a royalty will only be paid on the excess $100. This royalty only applies to creators in the Expert Tier; Initiate and Intermediate Tiers are royalty-free. WotC notes that this is a big change, so it is not implementing this royalty provision until January 1, 2024. While all other provisions will go into effect immediately, any income received from the effective date of OGL 1.1 through December 31, 2023 will not have a royalty payment due, no matter the amount of income.
The Expert Tier royalties are 20% of revenue over $750,000 for Licensed Works crowdfunded on Kickstarter and 25% of revenue over $750,000 for Licensed Works crowdfunded or sold via different platforms. Royalties made for Licensed Works that are on Kickstarter as well as other platforms will be determined based on the proportion of the total revenue earned on each platform. Therefore, you will pay 20% royalty on the amount of revenue received from Kickstarter and 25% royalty on the amount of revenue received from other platforms.
Commercial Use Crowdfunding
Creators may only crowdfund production of Licensed Works and no infringing materials shall be given out as perks or rewards. While the primary product must be a Licensed Work, creators are able offer stretch goals that are not Licensed Works, so long as those works do not infringe on WotC’s intellectual property, as well as stretch goals that qualify as Licensed Works (these will not need to be registered with WotC unless and until the creator sells them separately from the crowdfunding campaign).
For purposes of royalty thresholds, the entire crowdfunding campaign, including stretch goals, is considered one product. However, any revenue from “add-on” material that is separately purchased from backers is not considered for royalty threshold purposes unless it is also a Licensed Work.
The comments under this section provide examples to clarify what is and is not considered for purposes of royalty threshold calculations.
What About the Fan Content Policy?
OGL 1.1 refers to the WotC Fan Content Policy for content that is not covered by the OGL, such as videos, virtual tabletop campaigns, computer games, novels, and apps. Content is able to be created through this avenue to the extent allowed by the Fan Content Policy. Additionally, videos and other content that is monetized via ads are covered under the Fan Content Policy.
While it contains several rules and an FAQ, the gist of the Fan Content Policy is that content must be designated as “unofficial,” respectful of others’ and WotC’s intellectual property, and free—payments, downloads, subscriptions, surveys, and e-mail addresses cannot be required to access the content; the content cannot be licensed or sold to third-parties for compensation; and it must be free to others and WotC to view, access, share, and otherwise use without payment, obtaining approval, or giving credit.
The Fan Content Policy was last updated in November 2017. Currently, there is no word whether WotC also plans on updating this policy with the release of One D&D.
So, How Do You Want To Do This?
Even though this is not the final version of OGL 1.1, WotC has received massive pushback from D&D players and creators saying that this goes against the spirit of the original OGL—to foster creativity and innovation. Industry figures and developers have even penned OpenDND, an open letter criticizing the rumored OGL 1.1, which has been signed by over 66,000 people as of January 12, 2023. OpenDND states that OGL 1.1 “chokes the vibrant community that has flourished under the original license.” On January 10, 2023, WotC tweeted that they are aware of the questions regarding the OGL and “will be sharing more soon.”
This spark of controversy begs the question that if creators and even D&D competitors are making significant amounts of money from exploiting WotC’s D&D intellectual property, shouldn’t WotC be compensated for that success through royalties? Additionally, shouldn’t WotC be able to have some finger on the pulse of these works? Similarly, should the rogue be able to steal loot from their own party? Shouldn’t WotC compensate creators or, at the very least, credit the creators it uses Licensed Content from?
It’s important to keep in mind that the leaked version of OGL 1.1 is not official and is likely to still be undergoing revisions. If WotC is truly open, as it states, to being convinced it made a wrong decision and take community pushback and bad public relations into account, it’s possible that they may reach a middle ground that mutually benefits itself, as well as the greater D&D realm.
Amanda Alasauskas is an attorney at Swanson, Martin and Bell, LLP, where she focuses her practice on entertainment, media, and intellectual property issues, and commercial litigation. Amanda is one of LCA’s volunteer attorneys and serves as President of the Associate Board.