Foundry & Copyright

zocat1

From the ToS: http://www.perfectworld.com/about/terms

11. User Content
[...] "In consideration of your use of the Service, you hereby transfer and assign to PWE all right, title and interest in and to the User Content you create, post, store or transmit on or through the Website, including all intellectual property rights therein, and PWE shall be entitled to the unrestricted use, dissemination and other exploitation of such User Content for any purpose, commercial or otherwise, without acknowledgment or compensation to you." [...]

According to Wikipedia (might be wrong, that's why I ask) copyright is an intellectual property right.

So does this mean, if I publish a story & characters with the help of the foundry, that I transfer my copyright of all those characters/the story to PW?
Which means, if I have a website running with stories about those characters I can be sued by PW, since they (and not me) now own the copyright?
And I also cannot publish content, which uses the IP, / the same adventure/dungeon in other media (i.e. print magazine)?

Keep in mind that they're not asking for a (unlimited) (exclusive) license, they ask for transfer of all IP rights.

tilt42

The short, literal answer to all your questions is: Yes.

The real answer is: No.

Every single commercial game ever with user-created content features terms of service that result in the same kind of situation as this. It's something the lawyers do to protect the developers and publisher, and sometimes they go a little overboard. Who knows, PerfectWorld and Cryptic might rework the ToS if people start complaining about it, but the general gist of it is there to stay.

In practical terms though, it doesn't matter. Cryptic/PW won't ever sue you for using your own creations elsewhere. They won't take over your creations and sell them on their own. They won't take credit for what you make.

It's nothing but a legal matter, something the lawyers insist on. Let's face it, every one of us, maybe with the exception of the most paranoid among us, hands away rights to our own content every day in all kinds of situations. Did you just post a funny joke on Facebook? You just gave them the rights to it. Did you just post a picture on Twitter? You gave them your rights to it. I didn't actually verify these claims before posting, so I might be wrong. In any case, this is the default way for these things to be handled.

Don't get too caught up in what the ToS says about your copyrights. It's not going to be used against you, and even if it did it might not hold up in a court of law. They do this so they can create and publish screenshots from your quests, create Foundry Spotlights, talk about details from quests with the press, and so on.

In short, it's nothing to worry about.

narathkor

tilt42 is correct, I will simply add to it in southern red neck terms. They own it once you publish it. They will not sue you for using it again, but it protects them from getting sued by you for them using it.

zocat1

Okay, thanks for your answers!

hercooles130uscg

However, to go along with the previous posts, my content is actually taken from a Novel I am writing(non D&D) and changed to fit in with the theme of D&D, but I also made sure to change the names of characters, because if you ever released a book with the same theme, names etc and it becomes popular, you can **** well guarantee any greedy company will sue the hell out of you in order to see some of those profits, it is how companies work, and PWE comes across as the type of company to do it too.

tilt42

Yeah, the exception to the things I said is if you're using something from a commercial work of yours. That's something you should never do, because that can come back and bite you.

coanunn

I'll be perfectly honest, all of the UGC I'll be creating will have nothing to do with any of my IPs. I plan to alter them all in such a way as to be original works only slightly based off situations from my work. It only takes one instance of finding what I created in someone else's commercial success to teach me to be guarded with my IPs. Long story short two of my full adventures that I ran while professionally DMing for WoC were recorded, replicated and published with neither my knowledge or consent simply because I created it while working for them... It sucks but it's more than just "Lawyers protecting the company".

I would suggest you not use your IP in any of your UGC.

boydzinj

I am not important enough to use have IPs.

thnkcrzy4u

tilt42 wrote: »

The real answer is: No.

The real answer is YES. Companies have and will lock down IP you use in their game if their TOS says that they now own the rights, a perfect example of this is Blizzard vs Valve (DoTA and Defense of the Ancients).

It has happened, and will happen if you make a popular adventure and then try to go make another related game or work based on that.

If you don't want them to have rights, but think your work is worth having in the foundry, you should probably discuss it with Cryptic directly to have an alternative license for your content.

zahinder

It prevents someone from suing Cryptic if Cryptic happens to produce something that resembles his or her work.

gemstrike

There are three main IP categories: copyright, trademark, and patent. As best I can tell, the TOS is mainly focused on copyright. Copyright is focused on the protection of a specific expression of an idea, not the idea its self. So for example, if I want to write a story about a dark elf who leaves his corrupt homeland in search of redemption and adventure, there's nothing that can be done to stop me.

So how does this relate to your foundry content? As others have said, it would be a really bad idea to take an active commercial venture, and put it on the foundry exactly as is. It does sound like you assign full copyright over to PW for everything you place on the foundry. However if you really like how an adventure turns out, what you assign to PW is that specific expression of that adventure. There would be little stopping you from taking it and placing it into your own custom world with a few tweaks and updates to flow of the adventure. Or if just for fun you want to take an existing story and alter it and then put it on the foundry, that would probably be ok as well.

dadeleviathan

thnkcrzy4u wrote: »

The real answer is YES. Companies have and will lock down IP you use in their game if their TOS says that they now own the rights, a perfect example of this is Blizzard vs Valve (DoTA and Defense of the Ancients).

It has happened, and will happen if you make a popular adventure and then try to go make another related game or work based on that.

If you don't want them to have rights, but think your work is worth having in the foundry, you should probably discuss it with Cryptic directly to have an alternative license for your content.

incorrect. That's not how copyright works, even if some people would like it to work that way. Quite simply, your work is your work. No court in the world would allow Cryptic to steal your work with a little bit of nicely worded jargon in the TOS.

What cryptic CAN lay claim to is their own assets that you are using. Aside from that, however, any kind of claim they could attempt to lay claim to would be shaky at best.

gemstrike

Incorrect dadeleviathan. Click through agreements have been upheld in the courts for a wide variety of cases, and that TOS is pretty darn clear that you assign all rights. It is not something I'd want to test in court.

dadeleviathan

gemstrike wrote: »

Incorrect dadeleviathan. Click through agreements have been upheld in the courts for a wide variety of cases, and that TOS is pretty darn clear that you assign all rights. It is not something I'd want to test in court.

Regardless of how some TOS have been held up in court, contracts cannot violate the law, and that includes copyright law. If PWE or Cryptic tried to sue someone because they used non-cryptic assets from their foundry quests in another work, the worst that could happen would be PWE and Cryptic burying them in litigation (i.e. the old 'we have more money than you' trick). If it ever went to court, almost every single court in a common law country (I.e. any country based upon England's laws), would throw that portion of the TOS out as an illegal contract.

There are two types of copyright in terms of this kind of IP. In order for Cryptic to lay claim to the non-cryptic assets within your Foundry quest, they would have to classify those assets as work for hire. Since they are not offering any kind of compensation, most any judge in the world would find that claim laughable at best.

These types of TOS passages are not there, so that Cryptic can one day turn around and steal your work. They are there so that you cannot turn around and sue them because they create a quest that resembles yours.

That isn't to say that it would be a good idea, however, to take your foundry quest and turn it into a novel or some sort like that. The foundry should not be the place you use to test the reception of your new novel. They should be a place you utilize for completely different stories that you have no intention of using for profit. i.e. taking a neverwinter mod you made and making a Neverwinter Nights module out of it? okay. Taking a Neverwinter foundry quest you made, and turning it into a story you sell for cold hard cash? Not a good idea.

Cryptic could not argue that the non cryptic assets belonged to them. They could, however, argue what was and wasn't a non-cryptic asset.

hypocrite1

coanunn wrote: »

I'll be perfectly honest, all of the UGC I'll be creating will have nothing to do with any of my IPs. I plan to alter them all in such a way as to be original works only slightly based off situations from my work. It only takes one instance of finding what I created in someone else's commercial success to teach me to be guarded with my IPs. Long story short two of my full adventures that I ran while professionally DMing for WoC were recorded, replicated and published with neither my knowledge or consent simply because I created it while working for them... It sucks but it's more than just "Lawyers protecting the company".

I would suggest you not use your IP in any of your UGC.

Its fairly normal for the company you work for to own copyright on anything you create / use in their employ. If you intend to retain IP ownership you should *NEVER* use it at work, work on it at work or work on it with tools owned by the company.

Every contract I have had has an IP clause that gives the company fairly strong rights on what I create in Australia, the courts generally take the view that if the IP is related to your job or the industry the company is in they have a fair argument for ownership.

Naively in the past I agreed with an employer that a program should be Open Source, they closed it and told me to stop uploading it to sourceforge. Within their rights but a stupid move on their part (I quit, they had noone to work on it and ended up spending a lot of money on commercial software and services to replace it). These days I still code as a hobby but no work function touches machines that I work on for it. I don't login to work, send emails or take work calls on systems that contain source code or the application installed.

foundrymaker

You cannot get a copy of your foundry project, the public cannot play your project on anything other than PW servers. What does that tell you? They own your user-developed content, but only the mission you created in the foundry. IMHO they have no legal right to your idea for that content.

coanunn

foundrymaker wrote: »

IMHO they have no legal right to your idea for that content.

Unfortunately your humble opinion isn't what matters, the TOS is in fact what matters. They can claim rights to any IP created within the Foundry. Again, as I said before, I wouldn't use any of my IP's in this regard.

@hypocrite1 - Oh, I know it's a common practice. I was much younger when this happened and it has served as a life lesson ever since. I actually cease all creative work while under contract these days. Not just keeping it separate but just cease working on my creative endeavors.

gemstrike

foundrymaker wrote: »

IMHO they have no legal right to your idea for that content.

As I said, copyright protects the specific expression, not the idea.

celantra

Its important to know that without a written and signed statement you cannot give or transfer your rights away. Copyright law is very specific in this regard. View the United States Copyright Act (Chapter 2 L201-205)

Cryptic can make such a blanket statement in a TOS to protect themselves, but in reality they would be hard pressed in proving ownership of IP based upon what constitutes a legal fiction. Without a specific signed contract there are no provisions within the scope of copyright law for the transfer of ownership of rights within the United States copyright law. In reality, by publishing my work on the foundry in a semi-permanent state I have perpetuated my copyright as I have shared it in a public venue as my work. That is really all that is required to establish my legal ownership of my intellectual property.

If I go out and write a book based upon my foundry adventures, I own that work regardless of the inferred relationship to the content that resides within the structure of the foundry. If you want to further protect yourself you can add a copyright notice to your foundry mission and thus having "published" your work in a public medium with a statement of copyright you are protected by US copyright law and your ownership is clearly defined.

Of note. If Cryptic were to leave the content but remove your copyright notice they would be perpetrating a felony. They can however remove the entire work in whole and suffer no consequences. They can further ban or deny access to the foundry toolset to any user they want with no repercussions.

For all intents and purposes the TOS statements made only constitute a fair use relationship between the author of a work and Cryptic/PWI. Before folks start saying, PWI is not a US company and are not bound by US copyright laws, the fact remains that as this game is located in the US, it is bound by US law regardless of the companies corporate headquarters.

All this being said, law is not an absolute and that is why there are judges and courts and juries. There are the rules then there are the costs involved in enforcing them. The costs involved in a copyright suit can be extreme and in most cases are settled rather than pursued. More than often it is not the monetary costs that constitute loss. In the cost benefit analysis it serves Cryptic/PWI no useful purpose to attempt to pursue such a specious legal case as they would lose more than they would gain in the end. Such an action I have no doubt would result in a large percentage of foundry content being immediately removed and the touted toolset become something of a ghost town.

gemstrike

http://blog.ericgoldman.org/archives/2011/11/can_a_copyright.htm

Email can be interpreted as writing by the courts. I'm unaware of any cases that have tested the strength of click-throughs as writing. If you write a novel that is exactly like your Foundry adventure, well, you'll most likely be in trouble on several fronts due to using Forgotten Realms IP without permission, but according to the current TOS PerfectWorld would have enough of a case to bring it to court.

Again, not that it would ever get to the that stage because no publisher is going to touch a Forgotten Realms book without proper approval, which means such issues have already been addressed

As always - if you have a serious legal questions about IP laws, go talk to a proper attorney.

hercooles130uscg

gemstrike wrote: »

http://blog.ericgoldman.org/archives/2011/11/can_a_copyright.htm

Email can be interpreted as writing by the courts. I'm unaware of any cases that have tested the strength of click-throughs as writing. If you write a novel that is exactly like your Foundry adventure, well, you'll most likely be in trouble on several fronts due to using Forgotten Realms IP without permission, but according to the current TOS PerfectWorld would have enough of a case to bring it to court.

Again, not that it would ever get to the that stage because no publisher is going to touch a Forgotten Realms book without proper approval, which means such issues have already been addressed

As always - if you have a serious legal questions about IP laws, go talk to a proper attorney.

The issues come into play if you were to write a non forgotten realms book that used the same character and place names and same story elements.

Still I think it would a weak case, as, especially if the names of characters are generic in the Foundry (i.e first name only) and you use sur-names in your novel and story elements are changed due to the fact it is no longer a D&D story, then they have little to really claim ownership of. Even if you create a town in your Foundry quest, and use that same name in your Novel, I really do not think Cryptic/PWE can claim complete ownership despite what the TOS says. People always think that a TOS is some binding, set in stone, legal document, when rarely it takes into full account all the nuances of the law. They are often written to protect the company from legal actions, rather then to give the company some sort of right to pursue legal action against a customer.

And to be honest, I doubt even Cryptic (or most companies) really know what the hell the law is, as these TOS and Copyright debates have been raging for years, and I have never seen an official Company response on the matter. I doubt Cryptic would ever come in here and spell out exactly what would happen if you were to right a novel using names you created in the Foundry, as I suspect they know they really have little legal argument. If you however began infringing on Cryptic created content or Forgotten Realms(Wizards of the Coast) then you start heading into legal trouble well outside the TOS.