Dungeons, Dragons, and the Perils of Intellectual Property Licensing

Dungeons and Dragons and the Open Gaming Licence 

Dungeons and Dragons, often abbreviated to D&D, is a fantasy tabletop role-playing game that was created in 1974. Since 1997, D&D has been published by the Wizards of the Coast (WoTC) who have overseen D&D’s steady growth in popularity throughout the last two decades. However, as a result of increasing exposure in pop-culture, D&D’s popularity has rapidly exploded worldwide. This public interest has translated into significant financial success for WoTC, who generated $1.3 billion in revenue from D&D in 2021. 

Whilst many attribute this success to D&D’s easy pick-up-and-play style, which is certainly an important factor, the real key to its success can be found elsewhere. D&D’s core mechanics are made  available under WoTC’s “Open Gaming Licence” (OGL). This is a public copyright licence that allows content creators other than WoTC to modify, copy, and redistribute aspects of D&D’s intellectual property described in their System Reference Document. This freedom to use 403 pages of D&D content for both commercial and non-commercial purposes on a royalty-free basis has created a flourishing third-party community that has catered to many niches and, for many, improved the core D&D offering. 

Is a licence necessary to create D&D content?

Intellectual Property Rights protect various aspects of D&D. “Dungeons & Dragons” and the stylised ampersand logo are trade marks. Text from various books published by WoTC attract copyright. However, whilst intellectual property regimes protect expressions of ideas, they do not protect the ideas themselves. Importantly, rules or game mechanics cannot easily be protected (only the specific expression of them). Protection of game formats are a complex area and one which continues to challenge traditional game manufacturers (e.g. board games) as well as digital games and even television shows. What this means is that there is a reasonable argument that content creators do not need a licence to create content that is compatible with the D&D game mechanics. 

Despite this, the OGL holds value for content creators. Firstly, it provides certainty that creating content compatible with D&D is permitted. Secondly, it permits the use of some content that is protected and released under the OGL, such as blocks of reference text. Thirdly, there is some WoTC content that may or may not attract copyright (for example, the name of a class called “Monk” is likely too generic to be protectable, but WoTC’s characterisation of a Monk may not be). Finally, the OGL makes clear the scope of content that is licensed for use. 

Why did the Open Gaming Licence 1.0a exist? 

The OGL 1.0a enabled a community of content creators to flourish. Adventure guides containing new elements and rules, as well as new storylines, have been produced by numerous individuals and companies. Maps, character models, and digital assets on online platforms created under the OGL have produced a wide variety of resources for players to draw upon. As the available content has expanded, this has introduced new players to the game, which in turn has increased the sales of the core D&D products that WoTC sells. Through the OGL, WoTC has benefited from the creation of new content without having to fund or produce that content internally. D&D is a success story, an exemplar of using intellectual property rights in an open way to increase commercial sales. 

The proposed new Open Gaming Licence 1.1 

As has been widely reported, a new version of the OGL, OGL 1.1, was leaked to the gaming press at the end of last year. To say that there was a negative reception would be to minimise the furore emanating from the gaming community. To understand why the reaction was so negative, it is first important to review what the new OGL contained. Contrary to the open nature of the original OGL, OGL 1.1 was a much more restrictive licence that imposed many conditions on third party use of D&D’s intellectual property. These restrictions included the requirement to license any content using WoTC’s intellectual property back to WoTC, and to pay royalties to WoTC if certain revenue thresholds were met. Consequently, many consumers of D&D who enjoyed these third-party creations were faced with a realisation that, suddenly, their favourite additions to D&D could cease to exist. 

Why introduce a new Open Gaming Licence? 

The reasons for introducing OGL 1.1 in WoTC’s own words, were to “cease subsidising major competitors” and to have the power to remove “blatantly racist, sexist, homophobic, trans-phobic, bigoted or otherwise discriminatory content.” Whilst the latter incentive is laudable and certainly a noble cause, the former reasoning rung hollow to many. To most D&D players, the third-party content resulted in a more immersive gaming experience that complemented the D&D offering, rather than detracting from it. This sentiment was reinforced by reports and leaks from internal WoTC staff that described a fragmented relationship between WoTC staff and senior management who sought to rectify the ‘under-monetised’ D&D. As a result, many consumers described the transition to OGL 1.1 as another case of an all too familiar story in the gaming industry; corporate interests triumphing over the integrity of the gaming product being provided. 

Is it possible to revoke a perpetual licence? 

The original OGL 1.0a stated that it was granted on a ‘perpetual’ basis. Some commentors have taken this to mean that WoTC would be unable to revoke the freedoms granted under the OGL, that the fact that OGL 1.0a is perpetual also makes it irrevocable.  

Firstly, while it is dependent on the facts, the courts held in BMS Computer Solutions Limited v AB Agri Limited [2010] that perpetual can carry different shades of meaning; either ‘never ending’ or ‘operating without limit of time’ (the latter being terminable). Secondly, the OGL 1.0a is clear that (a) WoTC may update the licence, and (b) that licensees may only use authorised versions of the licence. This explains WoTC’s careful use of language that they have ‘deauthorised’ OGL 1.0a rather than ‘terminated’ or ‘revoked’ it. 

What has been the fallout of the new proposed Open Gaming Licence? 

As previously alluded to, there was significant fallout as a result of the leak of the proposed OGL 1.1. The original story reported by Gizmodo was widely picked up by gaming press and mainstream media alike, albeit this should not be too surprising given the widespread appeal of D&D. As a result, many customers responded with their wallets and cancelled their subscription to D&DBeyond.com, the main online service used to facilitate D&D games.  

Many have also focused their criticism on WoTC’s initial response, which was extremely delayed and slow to respond to the community's growing criticisms and concerns. Following several adjustments, on 27^th January WoTC confirmed they were leaving the original OLG in place, as is – and in addition releasing the entire SRD under a Creative Commons license. Not only does a Creative Commons license provide the content freely available, it does so in a way that WoTC cannot alter or revoke. 

Wizards of the Coast’s intentions vs drafting in the proposed Open Gaming Licence 

WoTC have released several statements over the past few weeks, explaining their intentions behind OGL 1.1. As discussed above, these included having the ability to stop use of WoTC assets for hateful purposes, preserving their own freedom to operate (through an automatic licence from content creators) and sharing in revenue from large scale content creators who have risen to become competitors to WoTC. 

It is worth noting that those stated intentions do fit with the proposed drafting in OGL 1.1; however, the provisions are drafted to permit a wider variety of actions that go far beyond those intentions. For example, the licence granted to WoTC for use of content creators’ materials not only preserves WoTC’s freedom to operate; it could also be used to publish and profit from that material without sharing revenue with the creators. 

Drafting the provisions so widely did meet the intended benefits that WoTC were seeking, but also led to mistrust in how WoTC might utilise those provisions in future. 

What you ‘can’ do vs what you ‘should’ do 

This is an important case study for the industry because it highlights the importance between what a company ‘can’ do versus what a company ‘should’ do. Clearly, there is little doubt as to whether WoTC had the legal ability to create OGL 1.1. However, this is a painful reminder that just because you can do something, it does not necessarily mean that you should. The key takeaway, and one that WoTC will be sure not to forget, is to consider the response of the consumer base before implementing changes to the terms and conditions of a beloved franchise. This is particularly poignant for the gaming industry, where the customer base feels a much closer attachment and sense of ownership in the intellectual property that these companies provide. 

What lessons can the industry learn from this? 

Gaming is no longer a new medium; it is however an evolving medium, and more than ever players are part of a community that feels involved in the ownership and custodianship of franchises. For D&D, which presents a framework for participatory storytelling, arguably the players and dungeon masters are equal or greater partners with WoTC in creating the experience of the game. Games companies should carefully consider the impact of the relationship they hold with their player community when updating terms and conditions. This can have far-reaching consequences, as seen through the boycott of WoTC media such as D&D Beyond, and the upcoming Dungeons and Dragons: Honor Among Thieves film, as forms of protest against the updated OGL. 

At CMS we are not only expert legal advisers; we are enthusiastic gamers (and in some cases, game creators) ourselves. Please do get in touch if you have any questions.