I intended to be optimistic. For all the chaos surrounding Wizards of the Coast’s attempt to revise the Open Game License, I’m optimistic about the future of tabletop RPGs. I still am, but it has become abundantly clear that, in order to fully describe the situation, it would take more than one article. There’s light at the end of the tunnel, but it’s just going to take a while to get there.
Besides, while those of us who have been following the story might take its importance for granted, to anyone less plugged into the online discourse, it isn’t quite so obvious what the big deal is. It’s a change to the terms of a license, how important could it possibly be?
So, for right now, I’m going to dive deep into what the OGL is, why it’s important, and why the first round of proposed changes caused such a tumult throughout the entire tabletop RPG community. Optimism will have to wait (and there might be an article in the middle about Wizards’ fumbling of multiple responses to the situation), but there WILL be reasons to be optimistic after all this. Promise.
What it is
The Open Game License, or OGL, is a copyright license. It draws a distinction between “Open Game Content,” which third parties are permitted to use in their own products, and “Product Identity,” which is intellectual property withheld from open use.
While the access to open content seems to be the main appeal, the real value of the OGL lies in the clarity that it provides. Game mechanics can’t actually be copyrighted, and some portions of the “Product Identity,” like the name “Dungeons & Dragons,” would be permitted under fair use in certain circumstances. For instance, with the OGL, you can’t say your produce is compatible with D&D; but without the OGL, you can.
In practice, it gets far more complicated. The rules can’t be copyrighted, but the expression of those can. Creative expression can also be inextricably linked to game mechanics. As a content creator, you have to ask, Do I need to rephrase these rules if I use them? Have I rephrased them in a sufficiently different way? Is there copyrightable material in the rules I want to use? Where do they begin and end?
What the OGL offers is a compromise: In exchange for avoiding certain Product Identities, you have clear permission to use the Open Game Content. No worrying about what parts of it are and aren’t copyrighted, no need to consult with a lawyer, no risk of a cease & desist or a lawsuit from Wizards. (Until recently.)
Why it’s important
You don’t need to read any level of generosity into this policy. The benefits to Wizards of the Coast were twofold:
Firstly, Wizards’ freshly-defunct predecessor, TSR, was notoriously litigious when it came to third-party content. Loosening those restrictions generated a lot of goodwill for the new stewards of Dungeons & Dragons.
Secondly, third-party content indirectly increases the value of D&D as a brand. The greater the breadth and depth of supplemental material for Dungeons & Dragons, the more appealing it becomes as a system.
You could physically measure the success of this policy. This is around the time that I got started with role-playing games, and there was no question that D&D reigned supreme because it took up far more shelf-space than the competition. Between a far more aggressive output of official supplements at the time, and a host of third-party supplement, they filled entire shelves. D&D’s presence could be measured in feet, where the competition was measured in inches.
This mutually beneficial arrangement worked for established publishers and new ones alike. Publishers that competed with TSR, like White Wolf and Chaosium, were now expanding the D&D ecosystem in exchange for access to that market. Publishers like Goodman Games, Green Ronin, and Mongoose all started in the early 2000s, and D&D supplements were an early source of revenue. I distinctly remember the “Quintessential” series, slim brown softcover books with gold lettering, each with expanded options for a race or class in D&D. I had The Quintessential Rogue. Those books were published by the newly-founded Mongoose Publishing, which is now the home of Paranoia and Traveller.
As for Green Ronin and Goodman Games, they currently have Mutants and Masterminds and Dungeon Crawl Classics, respectively. Both games can trace their origins to D&D, but are distinct original products in and of themselves. Nonetheless, they continue to use the OGL, not just as a precaution, but to allow other content creators to make derivative work.
The problems with the (first) new version
Clearly, the OGL has become an important part of tabletop RPG publishing, so any major change could have widespread consequences. To fully appreciate how severe these consequences are, let’s look at five elements that sparked the most outrage.
- “The revenue You make from Your Licensed Works in excess of $750,000 in a single calendar year is considered ‘Qualifying Revenue’ and You are responsible for paying Us 20% or 25% of that Qualifying Revenue.”
This is, perhaps, the most patently greedy and indefensible point within the document, albeit with some stiff competition. The OGL 1.1 explicitly states that “Qualifying Revenue” is net revenue— that is, before expenses. Margins in tabletop publishing can be thin, particularly with small print runs, so its quite easy to imagine that a small company, perhaps supporting a handful of people with a decent or supplemental income, now has a point where they start losing money on the venture. This is particularly likely with crowdfunding, where one lump sum is expected to get them though delivery of one project and development on another.
In effect, this puts a hard cap on how successful a publisher— or any content creator, including podcasters and streamers— can actually get. Considering how important the OGL was to getting new publishers started, this is just nipping future competition in the bud.
- “You agree to give Us a nonexclusive, perpetual, irrevocable, worldwide, sub-licensable, royalty-free license to use that content for any purpose.”
This is the stiff competition I was talking about. Anything you create under the new OGL would be just as much property of Wizards of the Coast as it is yours.
This bears a striking resemblance to clauses you might find on social media sites, like Twitter or reddit. However, the business models of those sites require the ability to host and profit from advertising off of content posted to them. Wizards, however, claims the same rights to whatever you create under the OGL, even if you self-publish, or even if you don’t commercially publish it at all. It’s a broad claim to any and all D&D content they happen to find. Just hope they don’t like what they see.
I don’t consider this any less reprehensible than the previous point, but Wizards clearly considered it more defensible— or at least deniable. But that would require diving into future developments, and… not today.
- “To be clear, OGL: [Commercial or Non-Commercial] only allows for creation of roleplaying games and supplements in printed media and static electronic file formats. It does not allow for anything else, including but not limited to things like videos, virtual tabletops or VTT campaigns, computer games, novels, apps, graphics novels, music, songs, dances, and pantomimes.”
Yes, it is amusing to see explicit legal prohibition on D&D pantomimes.
More seriously, though, is the prohibition of virtual tabletops. VTTs have become extremely important to role-playing games over the past several years. Remote play is vital to long-distance groups, and greatly facilitated playing the game at all during the heights of covid. It’s also another mutually beneficial environment: companies are founded to provide VTTs, and those make RPGs far more accessible, including D&D.
With the other points on this list, I avoided ascribing too much intent. They may have been bad decisions for the industry as a whole, or short-sighted, or overly strong as a matter of convenience. It is difficult to imagine any purpose in this clause besides forcing out competing VTTS to wrangle players to a proprietary one, which can then be aggressively monetized.
- “[T]he previously available OGL 1.0(a)… is no longer an authorized license agreement.”
This is the big one.
Taken on their own, the other aspects of the OGL are obviously horrible, but at least avoidable. Just keep going with existing content, avoid the next edition, and wait for this whole thing to blow over. The same thing happened with 4th Edition D&D, which opted to not use the OGL and instead use a more restrictive “Game System License.” That failure resulted in 5th Edition returning to the OGL.
But if the origina, 1.0a version of the OGL can be de-authorized— which is a point of contention, but nonetheless— then that throws a legal grenade in the midst of a ton of publishers. All those legal questions from before would then have to be answered, calling into question the legality of a number of existing products, even ones far removed from their D&D roots. Even in the best case scenario, with a game that doesn’t require the OGL in and of itself but maintains it for the sake of other third parties, they have to sort out an alternative license.
I should also mention that it is almost secondary whether or not Wizards even has the ability to de-authorize 1.0a. Either way, it is a reasonable enough legal question. If Wizards of the Coast sends you a cease & desist, do you challenge it? Can you challenge it? Legal proceedings can be expensive enough, much less when you have to go up against lawyers paid for with Hasbro money.
- Bonus: “We can modify or terminate this agreement for any reason whatsoever, provided We give thirty days’ notice.”
There’s not as much to say here, as it’s just a little extra kick at the end. After more than two decades of 1.0a being as good as irrevocable, the new OGL, as onerous as it is already, is only dependable thirty days out. After that, who knows? But I’d bet on things getting worse rather than better.
It’s bad, BUT…
Put simply, not only is the new OGL bad, but it matters that it’s bad. If even a milder version of this license sticks, it’s going to have horrible consequences, far and wide, for a lot of third-party publishers and other content creators.
Which is where I feel optimistic, actually. I don’t think this is going to stick, because regardless of whether 1.0a is legally revocable, and regardless of what changes are made to future iterations of the OGL, the trust and faith in the OGL, and this Wizards of the Coast, is dead and buried. No one’s going to risk publishing under this if the terms are so abysmal for licensees, and can be made worse, unilaterally, at the whim of the licensor. The fact that they tried to do this is enough of a problem.
And what has come in to fill the vacuum is promising. Paizo is leading the charge to create an irrevocable, inter-publisher, industry-standard “Open RPG Creative” license— or ORC. Other publishers are adopting other solutions (or flaunting their foresight in already using them), often the Creative Commons, sometimes just a casually declared set of terms. There’s also a general discussion about copyright laws, leading to a better-informed community when it comes to creative rights and the value of open licensing.
Plus it’s been a treat to see Wizards of the Coast whiff the PR game so catastrophically. But that might have to wait for another post.