Is this true, and to what extent?  I deal with fair use on a fairly regular basis in an educational setting, but I freely admit the commercial world is way beyond me.  I suspect a lot of you have insight.  What is the precedent, at least in the United States?  And have people cloning systems simply "gotten away with it" because old gaming companies have folded?  Basically, how far is too far?

If its helpful for discussion, I'll present some examples.  Assume the creator of these games are creating these games for profit in the United States.

A) This game is an AD&D 2E clone, using the same name for ability scores, renaming the saving throws and proficiencies.  They change the magic system and don't include any monsters or spells that are intellectual property.

B) This game is a d6 clone.  It uses custom attributes and renames pips something else.  It does not use any intellectual property from licensed games using WEG d6 system.

C) This game uses a 3d6 against target number mechanic.  It uses unique attributes and power system.

It's true.

A) Depends on the writing if its all new you'll only need to worry about attributes.

B) Has an Open License now

C) No clue, but sounds original enough because as said you can't copyright game mechanics.


Big issues are I am not a lawyer, I'm a game designer. So you might want to check with a copyright lawyer. I'd also strongly suggest you make sure to write every word from scratch in describing mechanics. Simply put you can't copyright mechanics, but you can copyright specific wording that describes those mechanics (as a whole entity.)

That's the actual text that is subject to copyright, and certain terms may be trademarks. The game mechanics themselves are not subject to copyright.

I've kind of gotten used to it, but every time I see something i've used for decades being released as a 'new idea', a little part of the young game designer in me dies.
(for example, when I read this, especially the part about initiative, since I was using Continuous initiative back in the 80s..

You can copyright terms, like Hit points.  But there is nothing stopping someone else from using Damage points.

Did you quote that from my earlier post, WB? :O

-clash

Ideas are not protected by law, only the particular expression of an idea is protected. This is a good thing, otherwise day-to-day conversation would be impossible, it'd infringe some other idea once expressed at some time in the world.

Patents are for methods of doing things, methods which are new and unique. Watt's steam engine was patented. Patents only exist if you register them, there's a process to see if it's genuinely new or a ripoff of something gone before. Patents tend to be relatively short-lived, expiring after a decade or so, depending on local laws - it's to encourage new inventions. Game mechanics can be patented.

Copyright is for a particular expression of an idea. Copyright is established the instant you publish something, no need to assert or register it. Copyright is relatively long-lived, in most jurisdictions it's the life of the authour plus a generation or two, or a few generations after publication for products without individual authours, like movies.The particular expression of game mechanics can be and is copyrighted.

Trademark is a particular word or way of presenting a product which is distinctive and a "brand". Coca-Cola the name is trademarked, as is the red and white flowing line design on the can - it's distinctive. Trademark is difficult to establish, it must be registered and defended, but once established lasts for as long as the owner wants it to, so long as they keep defending it. Trademark has nothing to do with game mechanics, though particularly distinctive terms in the game mechanics could be trademarked.

The doctrine of merger says that if something is commonly known, or if there are only a few ways of expressing a particular idea, you cannot patent, copyright or trademark it. For example, I cannot patent the wheel, it's been around for ages and is used in many things. "And then play proceeds clockwise around the table", this text cannot be copyrighted because it's an idea common to many games. How about patenting Trivial Pursuit, you want to try to prove that asking people general knowledge questions is a new invention? And "stat + skill + dice roll", imagine trying to argue that was new and unique.

Game mechanics can be patented, but they'd be subject to easy challenge, since rolling a six-sided die and reading it different ways in different circumstances is not exactly a new thing in the world. So far as I know, only Magic cards have a patent on the "tapping", or something equally trivial.

Copies of games are legion. There are endless versions of Monopoly, Scrabble, Boggle, and so on. The creators tried to patent and copyright and trademark them, it mostly didn't work, about all that's protected is their name.

As with Monopoly and Scrabble, the real value of the thing lies not in the particular game mechanics or the text accompanying them, but in the brand. I could publish a Real Estate Tycoon or Random Word game, I am never going to be even 1% as successful as Monopoly or Scrabble. They are established brands. That is, their value lies not in patent or copyright, but trademark.

Likewise, OSRIC or Labyrinth Lord are never going to seriously challenge D&D, because D&D is an established brand. Trademark is the real issue with games, not copyright or patent.

Kyle nailed the majority of it.  

There's also trade dress law in some places, where things like packaging design and the like get protections.  However, this has never, so far as I'm aware, been applied to an RPG.

The Magic Patent is pretty dense reading - basically, so far as I can tell, if you have a game where each player has their own deck of cards, and cards are reoriented by rotating them, to do their thing, you might be getting up their nose.  Maybe.

Quote from: flyingmice;364687Did you quote that from my earlier post, WB? :O

-clash

Here or on some OD&D fan site/blog or another I was romping through today.  I'm curious about the topic for my own sinister plans, not as a challenge to something anyone here or elsewhere made.  I'm a free love gamer.  I say let the dice dance around naked.

If, however, you want to make some legal claim to the statement: You can't copyright game mechanics (thread title), I must insist you refer to my attorney:

Quote from: winkingbishop;364697Here or on some OD&D fan site/blog or another I was romping through today.  I'm curious about the topic for my own sinister plans, not as a challenge to something anyone here or elsewhere made.  I'm a free love gamer.  I say let the dice dance around naked.

If, however, you want to make some legal claim to the statement: You can't copyright game mechanics (thread title), I must insist you refer to my attorney:

Nah, I was just curious, as I said that in a post earlier today, and wondered if that post was what got your mind churning. The actual line was "Game mechanics aren't copyrightable in the first place", so you didn't mess with my copyright anyways, as you stated it in a different form.

-clash

Quote from: Levi Kornelsen;364692There's also trade dress law in some places, where things like packaging design and the like get protections.  However, this has never, so far as I'm aware, been applied to an RPG.

If I recall correctly, the Far Futures Enterprises fair use policy restricts a user from using the minimalist colored line and white print on a black field in imitation of the parent product.  Or is that the Mongoose Traveller logo license I'm thinking of?  And, in either case, that only applies if you're making a product to be distributed for use in direct conjunction with Traveller.

!i!

Quote from: Ian Absentia;364765If I recall correctly, the Far Futures Enterprises fair use policy restricts a user from using the minimalist colored line and white print on a black field in imitation of the parent product.  Or is that the Mongoose Traveller logo license I'm thinking of?  And, in either case, that only applies if you're making a product to be distributed for use in direct conjunction with Traveller.

!i!

A case like that would make sense to me.  Much closer to how Kyle described a Trademark.  I'm really more curious about the dice rolling bit.

QuoteA) This game is an AD&D 2E clone, using the same name for ability scores, renaming the saving throws and proficiencies. They change the magic system and don't include any monsters or spells that are intellectual property.

If the magic system is significantly different, then the game isn't a clone. It would be a 3rd-party spinoff (and who wants to buy that?). For a look at exactly what you would need to do to clone 2E, look at OSRIC v2. Note, you'll need to do quite a bit of original writing as much of the spell/monster text in OSRIC is restricted specifically to avoid it being used in a 2E mockup.

Look at D&D and AD&D and then look at RQ, CoC, T&T and Palladium.  Maybe especially Palladium.  What is clear is that you can borrow a shitload and be totally legal.   If TSR had any possible way to crush its competitors in the early 80s, they would have done so.

Maybe more importantly, look at D&D vs. the Ultima or Wizardry video games.  Heck, Wizardry didn't even alter AC from D&D.   These games became mega-million dollar selling franchises based on D&D without giving TSR a single cent.

So stop worrying and start writing.   If you need to worry, then grab an OGL and follow the example of the retro-clone kids.  However, do note that Mazes & Minotaurs isn't a D20 OGL...