Intellectual Property or Modern Folklore? The Problem with Open Gaming Licenses in Tabletop Gaming

This Note addresses how courts and legislatures should address “Open Gaming Licenses” commonly attached to tabletop roleplaying games (TTRPGs), which game publishers use to promote a false image of accessibility—misleading consumers and building goodwill from the misunderstanding. Part I discusses what TTRPGs are, including the defining features of the hobby and culture surrounding it, as well as the unique interplay between publishers and players. Part II explores the question of which elements in a TTRPG system may be subject to copyright protection. Part III examines these elements in practice using Wizards of the Coast’s Dungeons and Dragons TTRPG as a case study. Part IV looks at two examples of illustrative license agreements: Wizards of the Coast’s Open Gaming License 1.0 and Paizo’s Open RPG Creative License, discussing possible contracting and licensing issues and the potential for copyright misuse. Part V reviews Wizards of the Coast’s history of legal action against other creators and how this history conflicts with the brand image they project. Last, Part VI proposes that courts find that a publisher commits copyright abuse when it creates licenses that seek to expand the licensor’s control over noncopyrightable elements and subsequently bar any claims of copyright infringement while in effect. Alternatively, courts should find the licenses are unenforceable as contracts because they lack the traditional elements of consideration and notice. Courts and regulatory bodies should respond to these lawsuits with appropriate sanctions for meritless lawsuits and anticompetitive behavior. Last, other players and publishers can promote the use and proper implementation of open licenses that fulfil the promise of “openness.