Games, Licenses, and You: A Practical Overview (Part 3: Popular Licensing Methods)

Previously, we looked at the sorts of rights you get on your work and how you can protect your rights. Today we’re going to look at how people traditionally license games.

Most licenses apply to the copyright of a game and its trademarks, with a notable exception in the form of the Open Game License and a handful of custom licenses that expressly separate copyright and trademark law.

What this means is that with a general license provided by someone like the Creative Commons, you’re giving up the same degree of control for both copyright and trademark. In a practical sense, this probably doesn’t matter all that much, since you probably aren’t going to see anyone following those terms do anything that makes you uncomfortable given the rights you’ve already granted, but it is worth noting that big companies generally don’t use general licenses other than those specifically designed for games (either the OGL or their own license).

Disclaimer: I am not a lawyer. This is not legal advice. Call a lawyer if you want questions answered surrounding your personal situation.

Objectives

• Describe the differences between common licensing methods for tabletop games.
• Decide upon an appropriate licensing method for a game.

All Rights Reserved

In this case, you reserve all your rights (duh). People can access your game in the method you prescribe (e.g. by obtaining a print or digital copy from an authorized distributor), and the whole deal is over pretty quick.

This is the default everywhere, so far as I know. It’s worth noting that there are a lot of myths about reserving rights, but generally it’s not necessary to explicitly say you’re reserving rights (check jurisdiction).

Reserved rights give you the most control. In games, remember that your game mechanics are not protected, though all of your text, art, and trade dress will be protected by appropriate intellectual property laws. You may need to register your work with the copyright or trademark office of your jurisdiction in order to bring a case to court.

Keep your reserved rights this if:

• You want full control over your work.
• You have complicated use of licensed IP (e.g. stock art, freelancers’ work)
• You aren’t sure what other licenses offer.
• You want to sell your work commercially without offering any back-channels.

In most jurisdictions, you can always choose to give up rights down the road, but you can’t always get them back. In addition, you can still give away your work for free if you so desire. Note that there are cases where all rights are reserved, but permission is granted to reproduce or redistribute for noncommercial purposes. This is sometimes used for character sheets and quick-start guides, but also for whole games.

If permission is not granted, even if a work is given away freely, it cannot be redistributed (if said redistribution involves making a copy; this doesn’t apply to someone giving away a copy you printed and gave to them).

Don’t choose to reserve your rights if:

• You want people to freely extend and expand your work.
• You want people to share copies of your work.

Public Domain

The absolute antithesis of reserved rights, in most places you can waive all your rights (except, perhaps, moral rights).

Anyone can do anything they want with your stuff.

As far as licenses go, the big downside here is that the only incentive people have to reward you for your work is wanting to see you do more work. That’s not actually impossible to pull off, but you leave yourself vulnerable to people doing things like repackaging your work and selling it. If they don’t give you credit, you may not have a recourse.

Note that you do generally need to choose an actual public domain license, since just saying “It’s public domain” doesn’t mean anything. Creative Commons has a good public domain license. Unlike other general licenses, there isn’t any gray area with using a public domain license with your work because other licenses have to worry about enforceability and games have weird copyright status.

Choose a public domain license if:

• You’re a fan of giving everything away free.
• You like the simplicity of a license that definitely does what you think it does.
• You want people to share copies of your work.

Don’t choose a public domain license if:

• You have complicated use of licensed IP.
• You want control over derivative works.
• You want to use the same IP outside of your game.

Common General Licenses

General licenses (licenses that are granted to the general public, as opposed to individuals through contractual arrangements) strike a middle ground between the two extreme approaches to copyright law. There are really four common ways to do general licenses in games that I’ll talk about.

1. Copyleft Licenses

The General Public License and some forms of Creative Common licenses (Share-Alike licenses) are what is known as copyleft. These are sometimes referred to as “viral” licenses because they include a clause that any work that is a derivative of your work must be licensed under the same terms.

I don’t like these licenses very much. They were originally created for software, where they serve a very useful purpose, but most tabletop games don’t neatly fit the original use cases. 

If someone writes supplemental content for a roleplaying game, or makes new cards for a collectable card game (assuming no trademark issues), but they don’t use any of the existing content, there’s already a large legal gray area and copyleft licenses add another layer of confusion. You don’t have that problem in software because derivative works always will include code from the software. Yes, I have seen tabletop games that try to use the GPL, and no, it doesn’t work well.

The Creative Commons license is better, but it’s still hard to argue what’s a derivative work of a roleplaying game. With reserved rights, you tell people that they can’t take anything from your work and put it into their work. With a copyleft work, you wind up saying “You can use my stuff, and anything you put alongside it needs to be licensed the same way.”

This is likely to face legal challenges when push comes to shove, because it’s not clear if a game with setting, rules, and visual content will be considered the same as, say, an illustrated version of a novel (which would definitely infringe the original’s copyright) given that many parts of a game cannot be copyrighted and there are gray areas specific to games that are interacting with gray areas specific to copyleft licenses.

With that said, there is a point to a copyleft license when you have a game system that people can layer additional content over while keeping the core in place.

Use a copyleft license when:

• You want to control derivative works based off of your game.
• You want people to be free to share your game.
• You want people to be able to modify your game and share their copies.
• You want to be sure you get credit for your work (check for attribution clauses)

Don’t use a copyleft license if:

• You like any semblance of clarity and legal precedent that your claims can be enforced.
• You want people to be able to make money off of their games or content based off of your game.
• You have complicated use of licensed IP.

Rant: Creative Commons Non-Commercial Licenses

I hate these with a passion. They’re in the middle of a very large legal gray area. I’m not comfortable with the ability to enforce these in most game-related cases anyway, and they create a massive chilling effect on people making content for your game. In my opinion, they’re only a notch more free than reserving all rights, but I think they’re more dangerous because at least with traditional copyright you’ve only got one gray area.

At least with Share Alike but not Non-Commercial licenses, people can profit off of their work (even though they can’t strictly control how it’s distributed once they sell it). This specific license is both viral and restrictive.

2. Permissive Licenses

Permissive licenses, also known as free and open licenses, give a lot of freedom to the people who can work with the stuff.

My favorite of these licenses is the Creative Commons Attribution license, which is basically a full entry into the public domain with the added caveat that you only give that license to people who give you credit for your work.

A lot of games have their own licensing schemes that use this method, and we’ll talk about one particularly interesting form in a bit.

One notable downfall of a lot of these licenses, especially ones made for software, is that they’re quite limited in scope and only cover copyright. Others are incredibly complex and not made with games in mind. Even the Creative Commons Attribution one doesn’t specifically apply to roleplaying games.

Use a permissive license if:

• You want people to be able to share your game.
• You want credit for your work.
• You want people to make money off of their content based on your game.

Don’t use a permissive license if:

• You have complicated use of licensed IP.
• You want to control who can make and profit from content based on your game.

3. The Open Game License and System Reference Document Method

I have a love-hate relationship with the OGL. It’s one of the best licenses in tabletop gaming, and one of the most confusing and misunderstood ones.

At its heart, the OGL is a permissive license. It’s just a permissive license with a bunch of swiss-cheese holes cut in it and lawyerese a mile thick.

The Open Game License comes from a Wizards of the Coast initiative to make it possible for anyone to build a game based on their third edition Dungeons & Dragons core game mechanics (and was used for some of their fifth edition content as well). It was successful in making it possible for pretty much anyone to make a game. This works because it’s paired with a System Reference Document, a pared-down version of the game that is nonetheless essentially similar to the full game and simply lacks certain content.

Where the OGL is different from traditional open licenses is that there’s no official human-readable version, in part because it’s very carefully worded.

The OGL’s restrictions are basically as follows: You don’t get any trademark licenses, and you can’t use original setting content we made, but you can take all our game mechanics. Just use what we’ve presented in our System Reference Document and give us credit.

Now, I used to rage about the OGL when I was a young Richard Stallman worshipping rebel, because game mechanics are basically the one part of a thing that aren’t copyrighted.

Except, of course, there’s one thing that is a saving grace: it covers the mechanics and text. It’s basically saying that you can use their ruleset for exactly what you want so long as you don’t touch the pieces they’re keeping for themselves. That’s nice because you can copy and paste a complete set of rules into your game and then just make them fit without worrying about issues.

It’s also not viral, meaning that you can use OGL content and then release your game under whatever system you want for your own content. It’s a little difficult to stack other permissive licenses on top of the OGL, but you can definitely have all rights reserved on your final product.

Do note that WoTC distributes OGL content separately from their complete games to further help negate any gray areas surrounding what is and isn’t covered.

People have duplicated this by using the same method with other licenses; the Resistance Toolbox takes the core mechanics from Rowan, Rook, and Decard’s excellent Spire and puts them under a Creative Commons license in a very similar fashion.

Use the OGL/SRD method if:

• You want to be able to designate parts of your IP to protect.
• You want everyone to be able to profit off your game.
• You want the simplicity of a license custom-built for tabletop games.
• You have complicated use of licensed IP outside your SRD content.

Don’t use the OGL/SRD method if:

• You want control over derivative works.
• You want people to be able to share your game freely.
• You aren’t willing to put in the extra effort to make an SRD.

4. A Custom License

A handful of games use custom licenses.

The main reason for this is that they’re aiming for a human-readable version of the OGL, they want to give fans free access to make non-commercial derivative works, or they have very specific needs due to weird legal situations (for instance, being in a place where US-centric licenses don’t work and not wanting to use Creative Commons).

Savage Worlds is an example of a game that has multiple custom licenses. I’m also particularly fond of the Open Legend Community License (disclosure: I playtested and made small contributions to Open Legend, including having some discussions with Brian about its licensing arrangement), as a very open license that has perfect clarity about attribution.

The real downside of using a custom license is that it requires you to be very much into intellectual property while also working on your game. Getting lawyers involved is almost certainly a necessity, but they need to be experts in intellectual property who understand what you do well enough to make a general license that protects everyone, which given the gray area surrounding tabletop games is almost certainly a great way to rack up a lot of billable hours as you discuss what you need in particular.

I have my own custom license that I use in my work because I wanted to blend the OGL’s trademark protections with a fully permissive copyright license, for instance. Be forewarned that getting to a license that meets legal standards and gives you everything you want is not an easy task. Getting it wrong can make your license unenforcable, meaning that you won’t have any recourse if someone does things you don’t want them doing.

Use a custom license if:

• All other licenses have something that’s a deal-breaker for you.
• You have a great legal team.
• You have complicated use of licensed IP.
• You want to have high amounts of control over both copyright and trademark-related issues.

Don’t use a custom license if:

• You’re risk averse (barring exceptions, see above)
• You don’t know what you’re doing.
• You want to make it immediately clear to everyone what rights they have.

Wrapping Up

Understanding copyright and trademark law in the field of games is tough; there are a handful of gray areas. Hopefully you feel more comfortable knowing what is and isn’t protected, and what your options are for using licenses to protect your work or set it free.