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To deal with this, I edited my adventure write up to exclude anything falling under WotC's copyright. This allows me to distribute the Ghost Tower rewrite without running afoul of copyright law, but also in a way that benefits WotC (though their notoriously tight-lipped legal department would never admit it). So, what did I do? Before I can answer that question, I need to explain a few elements of copyright law.
A Rich Environment: Why Protect Creative Works?
See Part VIII, Intellectual Property Primer.
Subject Matter: What's Protected?
The short, over-simplified answer is that fluff is protectable, and crunch isn't, meaning you can do what you want with crunch, but copying and distributing fluff can be dangerous. That’s a fairly vague rule, so I’m going to dive a little deeper.
As I told you in Part V: To GSL or Not to GSL, there's actually very little that's protectable for games. The United States Copyright Office clearly states that game rules are not protectable because they're "functional" in nature. If you want to protect a process, you have to resort to patent law, but that's a tough sell considering the non-obviousness requirement. So, rolling a d20, adding the result to a bonus that's calculated based on your character's level, and comparing that to a defense is a process that's not copyrightable.
On the other hand, copyright protects "the particular manner of an author's expression in literary, artistic, or musical form." This would include all of the artwork appearing in the old adventures, but it would also include much of the "fluff" associated with campaign settings. That is, it would include, taken as a whole, a collection of the names, backstories, storylines, and other things of that nature.
Stat Blocks
Stat blocks are a little trickier, but not by much. There's a lot of wording in stat blocks that, at first sight, might appear creative, and in the real-world sense, almost all of it is "creative." However, it isn't "creative" as far as copyright law is concerned.
Looking at the stat block for the Succubus, the Charming Kiss and Loyal Consort powers are certainly complicated. They take a couple of paragraphs, and with that much text, they could be creative enough, but they aren't. Why? The short answer: They're "functional." Once the author gets the slightest bit "creative" in the wording, ambiguity will arise, and the rules lawyers on the WotC forums will quickly demonstrate that the text can have multiple interpretations. To get the Succubus right, the author had to be very specific in his or her wording. There's no wiggle room; there's no real choice. Specific words have to be used in a specific order, decreasing the possibility of a finding of creativity. While the Succubus is "creative" in the real-world sense – the author did a great job imagining this Succubus and devising powers to realize that idea – it's not "creative" in the copyright sense of the word. It's simply an expression of game rules for running that particular creature, and that's not copyrightable.
The collection of all of these rules together (i.e., the creature concept) could, in theory, be copyrightable, but certainly with the Succubus it isn't. The Succubus is a creature from mythology, so that creature concept has always been in the public domain, and there was never a chance to protect that aspect of the creation either. On the other hand, there's often "flavor text" in a magic item stat block. This is language that could have been written in numerous ways without changing the mechanics of the creature. The specific expression chosen is arguably copyrightable, but does that relatively short text rise to the required level of creativity? Though I strongly doubt it, it might.
There's another consideration here, as well. To an extent, it's impossible to play the game of D&D if you don't do some copying of work. If any game company were to make a valid claim that their stat blocks, etc., were protectable, that would make the game unplayable, as you wouldn't even be permitted to make copies of the stat block in private. Accordingly, a court would likely deem what I did with Ghost Tower not infringement under an implied license to copy, or at least a fair use (though the latter is a risky defense for me to take). We've seen this before in early Internet copyright cases. Imagine a company providing a a website and advertising its existence knowing that, by the nature of computers, doing so would have you necessarily making an infringing copy of the page into your computer's RAM. Do you think the courts would let the company get away with that? They don't. The courts chose to imply a license to copy for the purposes of reading web pages, and that interpretation has stuck for almost two decades.
Modicum of Creativity: When Is It Enough?
While drawing a stick figure is creative, it's not by itself creative enough to warrant protection, nor should it be. (Could you imagine if one person owned the right to draw stick figures? No one would ever draw them. Does that meet the goal of copyright law, encouraging creativity?) Something more is needed for stick figures to be protected. For example, if someone drew a comic strip of stick figures with a story and dialogue accompanying them, then taken as a whole, there's enough creativity to warrant copyright protection. Also, unless you're in Poland, a single word cannot, by definition, be copyrighted, though a single word can, and often is, protected under trademark law. As I stated in Part VIII, Intellectual Property Primer, however, you may usually use trademarks owned by others provided it's clear to your readers that you're not claiming ownership or association with the owners. Though not strictly necessary, a standard disclaimer is usually sufficient to that end, and if you plan on ever selling your work, it's smart to include one just to make sure there's no reasonable argument that you were trying to confuse the public.
Keep in mind that when determining whether a work is protected, we look at everything that's been created in the aggregate. So, while a stick figure isn't protectable, a stick figure that's half the size of the other stick figures, and which represents a thief with a bad attitude, is becoming more and more protectable as the author adds to it. This becomes a question of line-drawing, and that's why you can't get straight answers from people like me. It's a vague standard.
Yeah, but Does WotC Know You Haven't Infringed? Do They Even Care?
As I've discussed in Parts I, II, and III, whether or not you've actually infringed isn't always the issue. If WotC, right or wrong, believes you've infringed, or if a copyright owner is devious, knows you haven't infringed, but sues anyway knowing your limited financial resources might prevent you from mounting a defense, then you have a problem. (To my knowledge, WotC hasn't behaved this way.) Consider this when choosing to distribute information. If you make the copyright holder happy by pointing people to their work, they're less likely to sue, though even that's not a fail-safe measure.
So, What Have You Done, Rob?
At this point, you should pull up my conversion of S2: White Plume Mountain (if for no other reason to play it). Let's go through it step-by-step. First, I've used the title, White Plume Mountain. Is that a problem? No. The Outfield published a song, Since You've Been Gone, in 1987. That didn't infringe the copyright of Rainbow's song from 1979 of the same name because the name was the only similarity between the two songs. The name, by itself, even though it was more than just one word, was not creative enough to prevent every other artist (or citizen generally) from using that phrase again. This means that I could write my own adventure, White Plume Mountain, and sell it to the general public so long as there weren't significant overlaps between the two stories. I haven't even done that here, so it's hard to see that by simply referencing the name that I’ve somehow violated their copyrights. In fact, they should be thanking me for the publicity. (They won’t because I'm not on their radar scope, but I'm sure they're appreciative of the publicity all of us are giving their game.)
Next, I provided a disclaimer. That disclaimer tells the reader in no uncertain terms that someone else owns the trademark, "Dungeons & Dragons," or any of the other ones I've listed. In fact, in other contexts, I've listed "synDCon," as well. I don't own the trademark to synDCon even though I'm one of the owners of the company that does own that mark. I still included it in the disclaimer to be technically accurate. I also add the line related to publicity rights. I didn't intend to create any characters based on real-world celebrities, so I expressly disclaim that to make sure none of them sue me.
Let's skip ahead to page 4. In the one place where I felt that there's at least an argument for copyright protection, the flavor text, I replaced it with my own. For the Potion of Vitality, I wrote, "Feel better?" If that's protectable, then I call dibs on the letter 'x.' (That's an IP joke.) This was just to be on the safe side, because WotC's specific choice of flavor text wasn't restricted by concerns of rules lawyers, so they had flexibility in what they wrote. They chose a particular set of words, and considering that it was more than two words long, I'm more than willing to let them have that. I could easily have come up with something just as creative and appropriate as what they did. This one bit of flavor text certainly wasn't worth picking a fight.
Skipping to page 8, I reference the iconic vampire, Ctenmiir. I used his name and even identified him as a vampire. I then leave it to you to legally purchase White Plume Mountain or Open Grave to learn his backstory. A "vampire named Ctenmiir" is not creative enough to warrant protection, but grabbing his entire backstory as well might be crossing the line into infringement. For good measure, I actually point the reader to the WotC products, decreasing the likelihood that WotC will be angry with what I've done.
Skipping to page 9, notice what I like to do with my encounters. I add a hit point table that identifies which mini attaches to each pool of hit points, whether each of those NPCs has used their recharge or encounter powers yet, and, of course, gives me columns for tracking hit points. This is my way of expressing a game rule. It's arguably a good idea, but it’s not protectable under copyright law. You're free to use it whether I like or not, though I really hope you all do. This makes running the encounters so much easier.
Staying on page 9, now focus on the footers. Much like my hit point table, I also like to include a slimmed down version of Sly Flourish's DM Cheat Sheet. If I have to improvise due to unexpected player results, I'm pretty much ready for anything. None of us (WotC, Mike, you, or I) can copyright this. Nevertheless, the footer also includes a copyright notice for the conversion document as a whole. The reason for the notice is that my document does create some fluff, but it's my fluff. For example, in my conversion of the Ghost Tower of Inverness, Encounter 8 didn't translate well into 4th Edition, in part because the adventure was written as a competition, and time was a factor. For a home game, sending PCs on a wild goose chase just to slow down the game for the players is rarely a good idea. As a result, I rewrote the encounter completely. So, if anyone has a copyright in what I wrote it's me, though I doubt my encounter is really protectable. Moving back to White Plume Mountain, in most of the encounters, I include a paragraph or two prefaced by, "Make the following change." If in those sections I change the adventure to a certain degree, I might give rise to a creative work worthy of copyright. If I have, the notice protects my interest in the work. Until you hear otherwise, however, you’re free to copy and distribute the adventure.
Maps
Even maps of real-world places are copyrightable despite the mapmaker's inability to take too much license with them. (You can't make a sellable map of the United States in the shape of a triangle.) There's usually enough creativity in how those maps are created to warrant protection. So, you can imagine that a map of a make-believe place requires even more creativity, with the mapmaker having to describe the shape and contents of the rooms. I don't have good map-making tools (or skills, for that matter), so I didn't create them for White Plume Mountain, but if you want to include maps in your published conversion, you'll have to make your own. Where the maps are really so simple that they're likely not copyrightable, I'd suggest that you should still make your own maps. Pick your battles. If they're that simple, even MS Paint should be good enough to make a quick version of that map, so this isn't a good fight to pick.
Living Forgotten Realms
As a side note, I've used Ghost Tower for a Living Forgotten Realms My Realms adventure, and White Plume Mountain is similarly being adapted for LFR. However, the license to use WotC's copyrighted works for LFR is conditioned on not distributing that adaptation. Accordingly, I didn't include it in the attached PDF. Rest assured, though, that it's there, and if you find yourself in the Washington, DC area and want to play it, drop me a line.
Anything Else?
If you find anything else in there that looks questionable to you, put it in a comment, below. Either I'll explain why you're wrong or quickly make some changes.
About the Author
Robert E. Bodine, Esq. practices real estate and intellectual property law in Virginia. He is one of the founding members of the Gamers’ Syndicate, a Washington, DC-based gaming club, and part owner of synDCon, a table-top gaming convention. He authors the article series on Loremaster.org, Protection from Chaos, dealing with intellectual property law matters as they relate to the gaming industry. You can follow him on Twitter @RobertEBodine for legal matters, @GSLLC for gaming matters, and if you’re a sports fan, @MMADork.
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