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Who holds the copyright for Foundry content?
arythor
Member, Neverwinter Beta Users, Neverwinter Hero Users, Neverwinter Guardian Users Posts: 315 Bounty Hunter
I am curious as to who holds the copyright for works submitted to the Foundry: Perfect World or the author? I imagine it would be the former as that is how things usually work in cases like this, but I would not mind getting confirmation on that.
A scenario where it would matter would be one in which an author writes a fabulous quest with original content that and the reception is so great that said author wishes to use the characters and ideas from it in a novel outside of the Dungeons & Dragons universe. Would he be able to take the characters and stories he submitted as part of a Foundry quest and use them, or would he have forfeited all rights to them and face potential litigation from Perfect World?
A scenario where it would matter would be one in which an author writes a fabulous quest with original content that and the reception is so great that said author wishes to use the characters and ideas from it in a novel outside of the Dungeons & Dragons universe. Would he be able to take the characters and stories he submitted as part of a Foundry quest and use them, or would he have forfeited all rights to them and face potential litigation from Perfect World?
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Don t we have to somehow acknowledge something like this before using the foundry? can t remember for sure.
However in your specific example i don t think it would be a problem.
http://sto-forum.perfectworld.com/showthread.php?t=209216
I don't know how broadly PWE would define "New Game Materials," but my read (emphasis on my read) is that the ideas (plots, characterizations, frame situations, etc.) are basically yours. You can't use or reproduce the maps, visuals or sounds, settings, dialogue, or specific mechanics you've made in the Foundry. Character names and likenesses are probably also PWE property.
Also I remember reading somewhere that if you publish something outside of game, and then duplicate it in the Foundry, that actually counts as "third party" material even if you own the intellectual property. Unfortunately, I don't have a link, and I don't know if it's relevant to your situation, but a bug in my ear tells me I should mention it.
The gorilla formerly known as Kolikos
That's defined in the first paragraph:
That means "anything you make in the Foundry".
And the information about who owns it is also defined:
That said, what are you worried about? If some company liked a module you made so much, they wanted to use it, they'd contact you and arrange something. For one, for the money they could get you to cooperate, it would shield them even further from lawsuits, secondly, they'd see you as a creative asset and for a small fee, could get you on board as a cooperative, willing participant in their company.
If they didn't do that, they'd "steal" the bits of your module they liked and then come up with something on their own, just different enough to claim it was original. Actually this goes on a lot in game design, even with professional product. Writers steal ideas, they just do.
I've never heard of anyone making digital content that winds up with a small contracting gig, but in the paper world it does happen from time to time.
One shield you can come up with, if you are truly worried, is to publish your idea in something very generic, with all D&D references removed (not creatures, D&D doesn't own Trolls or Orcs, but rather D&D specific lore or settings), and publish it first. You can then "replicate it" in NWO, pointing people to your generic version at the end of the module. It doesn't help with your claim against Cryptic, but you'd still own your generic content and Cryptic probably couldn't touch you on it. They might take your module down though, if they say you were using it to advertise obviously.
Also none of this, to my understanding, has ever been challenged legally. So there's no precedent yet. A lot of times people sign legal documents and think because it says A, B or C, it means that it can't be challenged. It's not true. For example, you might sign an employment agreement that says you agree you can be terminated "for no cause", but if you suspect and prove they really let you go because they found out you were <font color="orange">HAMSTER</font> or Muslim, the agreement is worthless and you could sue their <font color="orange">HAMSTER</font> big time. This is because no private contract can trump state/federal law.
The actual laws about copyright in this area, are to my knowledge, never been really challenged. I'd wager Cryptic would win anyway, but to my knowledge, there's not a lot of legal precedent here (would love to know if there is).
But these days, most paper content is open source with a "please donate" business model. The amount of content is AMAZING these days, even the "free" tools to use and browse the content is AMAZING (Hero Lab comes to mind is amazing). Right now it is murder making a living as an independent RPG designer. You really have to treat more as a cottage industry than a living. Hell, even Paizo and Wizards struggle to keep revenue streams growing. The fact is, paper gaming is a very small segment of the gaming community now, it's also aging and slowly atrophying. That's just the harsh reality of it.
One more thing about copyright, it's only strong until it's challenged. Consider Wizards "patent" on the tap mechanic (turning your card sideways to denote the card's been used). Believe it or not Wizards patented turning your card sideways in any game. It allows them to actually reap revenue from TCGs they don't even own (like say Yu-Gi-Oh or Pokemon). One day, some company will get fed up paying that fee to use the license and challenge it in court. If they win, the patent is now largely useless, because there's precedent established that it can be challenged. If they lose, the patent becomes even stronger and Wizard likely increases the fee to use their patent even more.
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Oh, I am not worried, I was simply curious.
In essence, my read is that you can have the same basic "story," interpreted one way via the Foundry, and in another way via print. But if you try to use Foundry-based assets or even copy-paste snippets of your own Foundry dialogue, you should be aware that you're crossing a line.
That said, a CoH community mod once explained their stance, which was basically that the EULA was to protect Cryptic (who still owned CoH at the time). In short, by agreeing to the EULA, players waived their right to sue Cryptic if Cryptic decided to use specific instances player-generated content for promotions or whatever. But if players wanted to use their own creations in other ways, they could do so, so long as they didn't use any Cryptic assets (like screenshots or in-game vids, etc.). I don't know if that carries over to PWE, of course, but the wording of the respective EULAs is very similar.
The gorilla formerly known as Kolikos
You are free to make a prequels, sequels etc., or write a book using your story and publish it (but not use foundry to promote it) etc. That copyright will be yours. Cryptic will claim the foundry's content copyright. That way it can protect the content for its players.
Let's qualify that a bit:
1. You certainly could not publish a story that used Forgotten Realms or any D&D property without violating copyright. You could publish it as fanon, and probably be left alone, but if you genuinely tried to sell such a story, you'd be hit hard by Wizard's lawyers.
2. Technically the legal agreement you agree to when you play, makes it clear they own everything you create. They "own" your character, your stories anything and everything you make while playing the game. But as I said before claiming something in a private contract is not quite the same as having legal claim over something.
3. To my knowledge, it's never been taken to court, that is to say, nobody who ever developed a character/story in a video game has ever tried to create an intellectual property of that character/story independent of the game. So we don't have any precedent - yet.
4. That said, I wager, if you kept your story generic enough, made sure all links/references to D&D property are removed, I wager Cryptic couldn't and wouldn't touch you. UNLESS you made a massive fortune and they figured out you first published and popularized your story in their game and then their lawyers would likely come knocking.
5. One reason Wizards abandoned open source, was because they foresaw a watering down of their intellectual property. I think it was the wrong decision, but I strongly believe there are some at Wizards who think Ryan Dancey led D&D down a dark path with the open-source movement that 3rd Edition espoused.
I don't want to get into too deeply just how free we should all be to distribute ideas, created through other people's tool sets. I do want to say there's a certain segment of over-zealous fan who starts to believe they are entitled to the intellectual property, that because they are so obsessed they are part-owners of it (Star Wars fans come to mind immediately).
It creates a false-sense of entitlement and worse, creates wholly vociferous reactions when the brand they don't own, moves in directions they disapprove of. Because in their mind, their allegiance and personal preference within the brand DEFINE the brand itself.
I find that kind of obsession, a little delusional. Fan fiction is one thing, fan-generated content is part and parcel of that. But we do not own D&D, or Faerun, or Drizzt or Baldur's Gate. Those are intellectual properties, that are, lock, stock and barrel the property of Hasbro. Not even Ed Greenwood really owns them. So be very careful, if you ever hope to monetize your creations within this game, or really anything related to Forgotten Realms and D&D.
You can do under the radar to a point, but the moment they smell a revenue stream, that you're not paying a license for, you'll get hit and hit hard by sharp, sharp lawyers. See my previous anecdote for how this company put a patent on turning a card sideways, for how sharp and aggressive their lawyers are!
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Which is all off-topic and actual reply to opener's query is still that the foundry content you make will be owned by cryptic. It does not means that the story/script etc. is also owned by cryptic. It will only be foundry content - the thing you make and leave on the server.
Not off topic, just a qualification of your statement that "you own the story"...actually technically according to standard user agreements in these games, you do NOT. I then qualified, HOW you could probably still use a story you created and profit from it, without violating copyright, which is precisely what the thread was about.
I wasn't diminishing your input, I value your posts, I was just elaborating, on the very topic at hand.
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Also, I'm sure somewhere in the TOS EULA or any of the agreements you have to click yes to to play the game has this covered.
But yah I plan on taking all 30 :adventures, turning it into 6 dungeons all in the same campaign.
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If, for example, you write a campaign that is regard so well that you think you should write a book on it, then go ahead. Just remember a few details.
One, it can't be a Forgotten Realms book without permission from WoTC. If you happen to get permission and work out a deal with the, then it's all a moot point. As WoTC holds all the D&D referenced materials, Cryptic only holds copyright on new materials that you create. If Cryptic were to refuse to release this for your use at WoTC request, then all you need to do is change names.
Two, if you don't get permission to use the Forgotten Realms as a setting, then this is where you use your creative juices to create a world all your own and then put your story in it. You can even keep most of your character names the same, as if they are standard enough names and can be proven to have been used before Cryptic, then they are fair use names. Now, combined first and last names that you used in the Foundry and are wholly unique will be a problem.
The simple fact is, you can always change just enough to satisfy copyright laws without watering down your story. Because in truth its the story people want. As long as the story is their in your book, in all it's glories, then the names of people and places have little relevance. The reader will just have a new name to read.
Does Wizard permit independent for-profit publishing using 4e rules? Is there not some license to use the rule set, a fee of some kind or at least permission? I am unsure.
I know the 3.5 OGL covers you nicely, but I am unsure about 4e since it changed the rules.
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Before making an incorrect blanket statement like this, I would encourage you to look up the term "derivative work."
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Good point, but derivative isn't necessarily a violation, if you don't use or reference anything that is someone else's work and don't directly copy phrases or use the precise premise.
Let's face it, D&D was derivative of Tolkien and Fritz Leiber after all. Films are often derivative of earlier work, sometimes directors even praise the original work it was derived from, see Twelve Monkeys as an example.
It's a gray line. "Inspired by" is most certainly okay, but direct plagiarism is a no-no and referencing worlds, places, characters and events that you did not write or own, is a no-no.
In D&D's case, having Dwarves in your game was fine, but having Gimli in your game was bad. See the original Deities and Demigods for where the violations were and how they were corrected!
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Since the EULA and TOS for the Neverwinter Foundry haven't been publicly released to my knowledge, one can only go from the Star Trek Online Foundry EULA/TOS.
Essentially everything, including characters, text/dialogue and story that you input into the Foundry Editor and subsequently publish as a mission/quest, is owned by Cryptic (or PWE, or both.. that remains to be seen in NW).
It was discussed somewhat at length in STO at various points, and the consensus seemed to agree that if you publish your Story Outline, Character plans etc etc online somewhere, dated publicly, then in theory you own all of that to do what you wish with, including going on to publish whatever else outside the game.
However you are also giving PWE/Cryptic the right to do whatever they wish with anything you publish in their game, and they solely own the rights to anything that you did not publish publicly prior to publishing it in the Foundry.
So what it comes down to in the OP is, if you decide to go on after to produce a story from the Foundry mission, without having published your ideas and characters before Publishing in the Foundry, then you are open to legal challenge. (I do however doubt it would happen)
Well, I don't want to get to deep into legality here, but there is a fundamental difference between something being derived(or based on in lay terms) from something else and meeting the legal definition of "derivative work." The owner of an underlying copyright, under U.S. law anyway, has the exclusive right to prepare items that meet the legal definition sufficiently to be deemed a "derivative work."
Its not exactly cut and dry as to what is and isn't a derivative work, however, you are correct. So I edited my previous comment to state to add the word "blanket."
There is a difference, legally anyway, between derivative and inspired by(which is the case of Twelve Monkeys I believe). As far as D&D is concerned, this was pretty evident, there were parts of D&D that were based on mythology, which could not be challenged, parts of D&D which were inspired by Tolkien but unique enough, and then parts, as below, which were successfully challenged(at least in as much as TSR conceded the point without trial.)
Dwarves existed as they did in Tolkien in mythology(mostly), The Tolkien estate did threaten suit over Hobbits, hence why they were changed to Halflings.
As far as referencing words, places, etc. that you didn't create, its a fine line. I wouldn't go so far as to say that reference to something within a copyrighted material for use in your own material is always infringing but the more material you incorporate into your own work the more you risk being labeled a derivative work.
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That's just semantics. Nice for lawyers, but not useful for me. I appreciate the distinction, but I still feel what I wrote was valid.
The initial claim was you can't write derivative work, despite the fact a lot of novels and films derived from Wizard of Oz and a lot of music derives from other music and most certainly a lot of art derives from other artists. You can narrow what "derived" means, that's fine and viable, but my point was there is a gray area, on what you can and cannot reference/derive in work and still call it your own.
And believe me, those kinds of legal issues are not black and white. See how George Harrison was nailed for his cop of "She's So Fine", while Public Enemy got away with copping beats/samples in several of their records. D&D of course ran into its own troubles with Dieties and Demigods in the 80's.
Right, we're on the same page, truly we are. I just used the term "derivative" more loosely. Twelve Monkeys was derivative of an old french film, it changed characters, locations and just enough of the premise to make it new work, but it was clearly derived from earlier work. It was also derivative of that genre of film that plays with paradox. Ironically, it was produced in a recognizable style that Gilliam pretty much created on his own, but other directors have imitated.
Let's face it, most art is derivative, at least in part.
Clearly, D&D was derived from Tolkien and Lieber (hell Gygax even admits this in the first D&D books), but it wasn't until they tried to directly put the Fahrd and Gray Mouser in the book, that they got in trouble, this despite the fact the entire Thief class is largely derived from those adventures (and again Gygax admits as much). I believe the Cthuthulu references had to be removed. The "Mind Flayer" however, that's clearly derived from Cthuthulu remained intact.
As for referencing, a gray area as you say, you really should not claim your character is a descendant of Drizzt, try to sell the book and not expect a lawsuit. Say your character is a "Dark Elf" with sable skin and white hair and nobody is really going to touch you. Say he is a "Drow" though and you invite more problems. Similarly, you can have a character say in your book, "I watched Maltese Falcon last night, I loved the film", but the moment you pretend your detective is the grandson of Sam Spade, well I'd prepare for problems.
Not trying to be argumentative here, I value your input and it is spot on. Let me make that clear!
I think the topic is a worthy one, particularly since fan fiction has become so pervasive and to a large extent, gaining more and more respect as well (I believe there was a recent documentary on the subject that got a lot of acclaim). So this is a topic that opens up a can or worms, that in some ways, doesn't have a black-and-white answers, (lawyers always will tell you they do, but they don't always win those "sure-fire" cases, trust me).
Hobbits and Halflings is a great example. Hobbit was a word/term not only invented by Tolkien, but the actual title of his book. Halfling was a rather obscure deragatory term (like soppy 'apeth) and Tolkien couldn't lay claim to it. He can't claim Elves, he can claim Elrond. But then again, if I had a character in my novel, the son of a massive nerd who decides to name his son Elrond, the Tolkien estate probably couldn't touch me.
There's also the satire exception, and I've never understood how one proves some things are satire and therefore sometimes get to transgress IP, but obviously this happens a lot (like say almost ever SNL sketch ever made).
Personally, I would recommend that if you have a great game or novel you are working on and you feel it will sell, do NOT translate it over to the Foundry. And do NOT have people read it or test it without getting them to sign some kind of boiler plate NDA (which you can probably find and download for very little).
One of the best defense you have in court, is proving you tried to defend your intellectual property. If you carelessly write a song, leave it behind where other musicians can see it, don't come back to claim it right away and someone finds it and records it, you will have a very hard time proving the song is yours. Run the same scenario, but the song was already copied at home and stored safely and shown to others (better yet performed in front of others) and your claim of theft is enhanced greatly.
So, one of the best ways to ensure Cryptic doesn't "steal" your cool idea, is to simply not broadcast that idea in the Foundry. Because you don't really own anything in the Foundry and you are agreeing to a usage agreement that essentially states taht anything you create there, Cryptic can use for whatever business purposes they like. Sure, you could probably win if you sued, but ANY good lawyer will tell you, the best legal advice you'll ever here is, "stay away from lawyers".
Because trust me, they cost you an arm and a leg. They are valuable, we need them and a good lawyer is better than a good plumber when you really need it, but they ARE very expensive.
Finally (and forgive me for being passionate on the subject), fan fiction is a great and wonderful thing. So indulge in it. And while the tolerance of fan fiction is growing, even in the most anal-retentive copyright owners (try the band KISS for intellectual property owners who sue anyone at the dime of a hat, if there's any whiff of a transgression on their numerous copyrights), fan fiction is no way to make a living.
If you intend to make a living, then don't even try to make it fan fiction or translate it to someone else's video game.
My humble wooden nickel on the subject.
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Yes, quite right, AFTER there was a settlement and AFTER TSR paid money to officially license the intellectual property.
I have Lankhmar somewhere, one of those moldy books in the garage, I fear. The novels were awesome, the supplements were decent, not great.
I believe the Melnibonean (sp?) stuff was removed and there was never reconciliation, same with the Cthuthulu stuff.
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I believe that in a discussion about a legal topic, copyright and the foundry, it is extremely important to use words in their legal context hence why I pointed out the distinction, it is an important one.
The initial claim, which I refuted, was that you CAN write anything you want based on your material that Cryptic owns the copyright to(even though you produced it initially) without fear of legal action(or even without infringing copyright regardless of whether or not legal action would be forthcoming), a point which is incorrect, which I pointed out. You then responded that derivative isn't necessarily a violation and proceeded to write about things that aren't legal "derivative works" but are instead, inspired by other works, which is a layperson definition and not a legal one. The simple fact remains, if a work is a derivative work, unless it falls under one of the defenses to copyright infringement it is violative.
As for the Wizard of Oz, the reason that you see so many works that are derivative of it is that its a book that is no longer covered by copyright protection so no one can get sued for writing whatever they want that would normally be a violative derivative work.
Both are derivative works(imo). In Harrison's case the work was deemed to be a derivative work even though Harrison subconciously wrote the infringing lyrics. In Public Enemy's case sampling is derivative, there was a district court case in 1991 deciding such, which is now the standard line. Public Enemy got away with it because no one took them to task for it.
And that's fine, it may truly be a "derivative work," its not for me or you to decide. If someone had wanted to at the time they couldn't sued the writer/producer/etc. of Twelve Monkeys(I don't know if they did or not) and the court would have decided one way or the other if the work was derivative.
That's fair enough, the point here isn't about whether or not most art is derivative, this isn't a philosophical argument, this is a legal analysis. In a legal analysis you have to decide what your risks are. Here the risk is that what you create will get you sued by someone who arguably owns the copyright for which the work you wrote is based(I quibble about whether they do or not, but that's not ultimately for me to decide.) Pragmatically therefore someone should realize, that advice like, "you own the copyright to anything you produce that's a sequel, prequel, etc." is bad advice. It may be true that Cryptic will not sue you over it, but from a risk standpoint the first thing you have to consider if what your legal standing in, then you have to consider your likelihood of being sued, and also whether or not you have the resources to deal with it if you do. These are things that people should think about if they're truly interested in using their works elsewhere than the foundry.
Companies pick their battles, just because something remains that is potentially infringing doesn't mean there wasn't negotiation behind the scenes regarding it. "We'll remove our references to Cthululu if you agree not to sue us about anything else." Things like that happen all the time, especially with parts of the work that are more tenuously linked to the underlying IP that would have a hard time being argued in court and be costly.
Drizzt is one of WotC's most important IPs. I have no doubt that they would defend it vigorously, especially if you're just a guy off the street trying to make a profit off the name. That being said, if the only reference in your book to Drizzt is that your character is his grandson(and hell lets say he's not a drow and your book has no mention of drow) and you didn't market the book as such, you may be fine from a legal standpoint. It would depend on how much the name Drizzt is viewed by the court to be the essential part of the original work. If its not deemed to be essential than you're probably covered by the fact that the amount of copying is "de minimus." Note, this is theoretical, I'm not suggesting that anyone go out and write a book with Drizzt's grandson.
Thanks, I hope I'm not being overly harsh, I don't mean to be.
It is, and my whole point of entering it was to simply say this(which you say later in your post.) Don't use the foundry for material you hope to one day publish for profit, or use material you place in the foundry for newer works without fulling realizing the potential for legal problems down the road, especially if you think the work is good enough that Cryptic may feel the need in the future to exercise its legal team.
To the first part, yes, absolutely. To the second part, its not a patent or a trade secret, I wouldn't worry too much about the NDA with copyright(there's no worries about first to file and things like that, once you create a work you've created it.) In fact, a NDA is probably actually a bad idea if you're looking for copyright protection, the more evidence you have of publication the better off you are.
Copyrights are unlike trademarks in that you don't have to protect it every time for it to have the same force. Showing your copyrightable material to as many others as possible is great idea though(hence why the NDA is bad idea if you're looking for copyright protection.) Registration is no longer required for items to have national copyright protection so the more people that can prove you created something the better(as long as they don't copy it without authorization.)
Again, yes.
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