Save vs. Lawsuit: How To Publish D&D Content

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And now for something completely different. Well, not really COMPLETELY different. Just a bit of a digression from my normal bulls$&%. It’s still related. And it’s important. It’s just a topic I rarely discuss. Because I’m all about the games and the game mastering. How to run less worse games and how to create less worse content for your own use. And also how to make the rules less worse.

But, let’s just say you’ve taken all of my awesome advice and you’ve written your own adventure. Or your own setting. Or you own class or background or whatever. And you’re not content just to confine it your little game table in your own dark basement somewhere? Let’s say you want to share it with the world? Can you publish this s$&%? Can you sell it and make a bajillion dollars? Will Wizards of the Coast sue the s$&% out of you? Well, yes, you could publish this s$&%. No, you probably can’t make a bajillion dollars but it is THEORETICALLY possible. And maybe Wizards of the Coast will sue the s$&% out of you.

I bring this up because of a buddy of mine: David “BrainClouds” Flor, who is the only other person in the world I know who is familiar enough with it to casually reference the bland-as-f$&% “comedy” Joe vs. the Volcano. David runs Darklight Interactive, through which he publishes D&D modules and other gaming content. I’ve purchased a few of his products and I like the work he does. He does quality work and produces good content.

Recently, David launched a Kickstarter for his new project, an original three-art campaign (adventure series) for Dungeons & Dragons, 5E. He was going to release it through the new digital marketplace for officially sanctioned, fan-created D&D content: the DM’s Guild. And then, wham, he got an e-mail from a company called One Book Shelf explaining that he sure as f$&% couldn’t do what he wanted so he’d better change his product or scrap it. What the motherloving f$&%, right?!

Well, what the motherloving f$&% grew out of a massive misunderstanding of the terms of the various publication options for D&D. And when you try to cut through the crap and understand what actually happened, you quickly end up mired in legal bulls$&% that combines the worst aspects of intellectual property law and Wizards of the Coast’s complete lack of ability to explain things. I mean, they can’t even explain RPGs. Do you think they can explain business law?

Here’s the deal: if you’re not ever planning on writing for D&D, this article really isn’t for you. Sorry. You get an article next week. But if you think you MIGHT someday want to put your own content out there, then maybe this article will help you a little bit.

But, here’s another caveat: I’m not a f$&%ing lawyer, okay? I have a soul. It’s small, it’s shriveled, it’s blackened from years of accounting. But it IS a soul. Hahaha, I’m just kidding. I love lawyers. If you are a lawyer, I’m sure you have a nice soul. Please don’t swoop in in the night and steal my soul to fill your own empty void. The point is, this is a lay perspective. This is just an attempt to cut through the crap a bit and help you understand what options exist. If you want to publish small things and you’re willing to play by a few easy rules, I’ll give you an easy path. If you plan to do big things like publish gigantic megadungeons in a physical book format, you’re going to want to talk to an attorney and also educate the hell out of yourself. I’m just starting on that path, which is why I have to give this massive caveat.

Now, I would be remiss if I didn’t say: go check out David’s Kickstarter: The Coming Dark and consider supporting it. He’s one of the few people I’m actually willing to take the chance on. Usually, I don’t plug Kickstarters because I won’t stake my reputation and suggesting you give money to someone because they really, really promise to maybe someday do something that might be good. I don’t recommend a thing I can’t actually speak for.

Secondly, you can read David’s blog post, which describes what happened and how he changed his project.

I Ain’t Here to Debate Intellectual Property Law

I have no interest in listening to whinging gamers spew all over my comments about how intellectual property laws are broken and how it should be totally legal for those Star Trek people to make their fan film. I am not arguing one way or the other. I have my own opinions about intellectual property law. They are, like everything else, subtle, nuanced, complicated, and they would take exactly 5,000 words to explain. I am not advocating FOR or AGAINST our system and my comment section is not open to anyone who wants to advocate for or against our system. If you try to bring that fight into my comment section, I will delete it. If it gets too heavy, I will close comments.

A Very Very Very Very Basic Understanding of Intellectual Property Law

The idea behind IP law is very simple. When a person puts a lot of work into creating something, they have the right to get a reward from that. Usually in the form of profit. The reason is because creation, even something as simple as writing, is hard work. And it has costs. The fact that I maintain this website and write these overly long articles, for instance, costs me money and time. Which is why it almost went away. Fortunately, my very excellent Patreon supporters understood that and gave me the opportunity to recoup those costs instead of working three jobs to not starve.

The problem is, the minute you put something out there – like a book or a movie or an invention or anything – there is nothing that prevents anyone from just copying the thing. If I publish a book, you could theoretically scan the thing and give it away for free or sell it cheaper than I could because you didn’t spend all the money and time creating the thing. That eats directly into my ability to recoup my losses. Why is this important? Because having the time and money to create stuff is a luxury. And if time and money go away, artists can’t art anymore because they are too busy not dying. And if the very best creators starve to death or have to give up creating to work three jobs to support their families, we stop having art and inventions.

But, there’s another issue that IP law addresses. Human beings are very “brand aware.” Our brain is wired to use all of these shortcuts to make decisions about what is good and bad. For example, if you see food that is gray or brown or weirdly purple, you don’t eat it. We have this sort of hardwired sense of what looks “good to eat” because it creates a quick shortcut when we are foraging for food to recognize “safe” vs. “will probably kill us.” Now, the thing is, this is hardwired into some very deep, very ancient parts of the brain. And those deep parts of the brain don’t understand the modern world is a very different place. And so, just like “weird purple-gray” became “probably toxic,” particular brands and logos become synonymous with good or products. Beyond that, though, there is also a matter of reputation. Reputation is a big, important thing. What do you think of the software company EA (Electronic Arts)? Yeah. Exactly.

The point is, we use patterns to make decisions. Reputations, stereotypes, brands, logos, those are all patterns that help create our gut reaction to things. So, let’s say I create a game called “Catacombs and Critters” and it has a very cool C&C logo (and I make sure it doesn’t look remotely like anything C&C Music Factory ever did). And all of the books have this neat red border and a particular art style. And then some dumba$& comes out and publishes an adventure for my game: “Bunny Rapists: The Adventure where You Basically Just Rape Bunnies.” And it has the same logo and the same art and everything. Now, a random person comes into a game store and sees my awesome product and then sees the Bunny Rapist adventure sitting next to it and looking just like it. They are going to assume that THAT product is part of MY product line. And they are going to flip the f$&% out and get Australia to ban my game and get me pulled out of Drive Thru RPG and my career could be over. Or else I have to spend all of my time PROVING to morons that I didn’t sanction the “game of raping bunnies.”

For those two reasons, we’ve created laws to protect the rights of any person or entity that invests in creating products. Because we WANT art. We want people to continue to create things.

Intellectual property is basically all the intangible stuff that creators create that needs to be protected to keep them creating.

Patent, Copyright, and Trademark

There are THREE basic forms that intellectual property takes. First, patents protect innovations and inventions. Mostly technical s$&%. It can be the design for a physical thing, it can be a specific process like the way of taking a substance that absolutely will not stick to anything and getting it to stick to the inside of a pan, and it can be really weird stuff like specific INVENTED sequences of genetic code. But we don’t worry much about patents in the RPG space.

We DO worry about copyrights. A copyright is the right to copy a thing someone created. That’s why we call it that. Basically, if I write a book or make an art or code a computer thingy, you have the right to say who can copy it and when and why. And you can grant permission on a case-by-case basis. Or not at all ever. You made the thing, you put in the hard work, and so it is up to you to decide who can reproduce it and what they can do with it.

The moment you create a thing, it is protected by copyright law. The moment I hit “save” on this article, it is protected under copyright law. If you make a copy of this article, I can legally exercise my right to stop you. Of course, I’ve granted you permission to download this article as a PDF or print it. I’ve done that simply by including a print/PDF button. You CAN register a work for a copyright. And that can help you PROVE when you created something if a fight breaks out. But you don’t have to.

It is also a myth that you copyright law only counts if you are making money from a thing. That isn’t true. If you distribute copies of my website, whether you charge money for them or not, I can still s$&% a legal brick on you. It is MY right to decide who can copy my articles and when and where and how.

Now, when it comes to copyrights, there is this concept called fair use and, HOLY F$&% DO PEOPLE MISUSE THE S$&% OUT OF THAT. The Fair Use Doctrine was written into copyright law (and not patent and trademark law) because there’s an issue. For example, let’s say you are a movie critic. Your livelihood is based around telling people which movies to like and which ones to hate. The Fair Use Doctrine protects you when you use footage from a movie to make your point. Let’s say you are writing a textbook for a literature course. You can quote copyrighted works for education purposes.

The Fair Use thing is not something super important to our discussion, but it’s been getting a lot of play lately, so I wanted to bring it up. See, YouTube content creators and other artists and publishers have had a LOT of fights lately over what constitutes Fair Use. And YouTubers and celebrities have been spreading the idea that Fair Use is this black and white, legal thing. If you’re adding anything to another, it’s Fair Use. Right? Wrong. Fair Use is figured out on a case-by-case basis by the court system. The court ways each case based on four basic ideas: the purpose of the work that is duplicating something, the nature of the original work, how much of the work is copied, and how that use affects the business of the copyright holder. There’s a lot of myths about how you can use 30 seconds of material without fear no matter what or that any commentary added over a thing allows you reproduce an entire thing. And, those are just that: myths. The truth is, a court has to decide all of these cases based on an examination of ALL the factors involved. And it is NEVER cut and dry.

The OTHER thing we have to worry about are trademarks. A trademark is an image, a phrase, a logo, a collection of words, a slogan, basically anything that tells people that a product is coming from a particular source and no one else. The name Dungeons & Dragons and the fancy ampersand logo? And the D&D logo? Those things tell people that when they buy a book or game or whatever, it’s an official book made by Wizards of the Coast themselves and no one else. They are a way for creators to protect their brand, as we discussed above. If anyone can use the specific names and logos associated with the Dungeons & Dragons brand, WotC can’t protect the quality and reputation of the brand they have spent a crap-ton of money to acquire and produce.

Like copyrights, trademarks are technically protected once you start using them. Mostly. If you create and start using a logo for a commercial purpose (selling a product), as long as you can prove you did it first and it isn’t ripping off someone else’s trademark, it’s yours. This is called an unregistered or common law trademark. And it denoted by a little TM. By the way, the trademark is yours whether you use the little TM or not. The TM is just a way to make your intentions really, REALLY clear.

If you want to make sure you are really protected and that there’s never an argument about what things you consider a trademark, you can register your trademark. An attorney can help you here. That removes a lot of ambiguity. Once you register a Trademark, it gets the little ®.

I’d be remiss if I didn’t mention some recent developments regarding trademarks, crowdfunding, and unregistered vs. registered trademarks. When the original trademark laws were written, crowdfunding via Kickstarter and IndieGoGo and s$&% didn’t exist. So, things were pretty cut and dry. It was mostly pretty easy to tell when someone was using a logo or name or slogan. But the law is ambiguous as to whether crowdfunding constitutes “use in commerce” and it looks like some courts are saying that maybe it doesn’t. What that means is if you create a name or a logo or whatever to be associated with your shiny new Kickstarter project, it might NOT have automatic protection as an unregistered trademark. And that means someone could come along and be a major dick and register a trademark for YOUR logo or brand and then stop YOU from using it. That’s because trademarks can be registered BEFORE you start using them by stating that you INTEND to use them.

Without wanting to get too complicated, there is ANOTHER aspect of Trademarks worthy of discussion. And that is the concept of “Trade Dress.” Trade Dress is a nebulous term that refers to all of the specific design elements that make a product look like itself. Weird, huh? You know how the new D&D books have a black spine with the red D&D name and they use a particular font on the cover and they follow specific color schemes and all of that crap? That’s Trade Dress. All of the D&D products look visually similar to distinguish them as D&D products. And you can’t come along and try to disguise your product as an official D&D product for all those brand protection reasons we already talked about.

And all of THAT is why, if you’re publishing a D&D product, you can’t actually make it look like a D&D product or say the name Dungeons & Dragons or D&D. That s$&% is all protected. And WotC will stop you. And, honestly, if you format your product too much like a D&D product, you might end up in trouble too.

The Details of the Game

But so far, we’ve only looked at two real questions. Can you copy or paraphrase large portions of the D&D rulebooks, including stat blocks and descriptions, for your own product? No. You can’t. Can you use the D&D or Dungeons & Dragons name or any logos or color schemes? Can it LOOK like a D&D product? No. But what about the actual content?

This is where things get REALLY murky. And there’s some myths here too. For example, it’s popular among gamers to point out that you can’t copyright game mechanics. And that’s true. You can’t. Because game mechanics would be covered under a patent. Game mechanics are specific processes. They are like inventions. And you CAN patent game mechanics. But most of the time, you also can’t.

See, the trouble is that most game mechanics are actually pretty simple and widespread. WotC CAN’T patent something like “roll a specific die and add named modifiers and then compare it to a specific target for the purpose of determining success or failure of a game action” because, frankly, so many games use that same process for so many things that it’s impossible for anyone to claim that idea as their own. “Roll a die and move that many spaces?” No. Can’t claim that.

So, a game mechanic has to be REALLY original and unique for the patent office to issue a patent. And different countries enforce patents on game mechanics differently.

Lots of D&D mechanics are just everywhere now. Things like the idea of Strength scores and Experience Levels and Hit Points and rolling dice.

That said, there are some things that WotC WILL go after you for. They’ve said as much. If you publish the instructions and rules needed to make a character for D&D, they will try to nail you’re a$& to the wall. And that includes computer software. Because, at that point, you’re reproducing substantial portions of their Players Handbook. Even if you’re not doing it verbatim.

But you can totally build your own classes and backgrounds and all of that s$&%. Just don’t tell people the rules for actually choosing classes and backgrounds and stuff.

But there’s some other stuff too that you have to stay away from. There are certain bits of Intellectual Property that WotC does stake a claim on and can legally enforce. For example, pretty much ANY proper name from any D&D product is theirs. You technically can’t write about Drizzt or Pelor or Myth Drannor or the Nentir Vale or mention Bigby’s Crushing Hand.

Check THIS out:


Yeah. That’s the thing. That’s what does it.

So, you can create your own monsters and your own adventures and classes and races and all that other crap. But you can’t use their names, their logos, or explain how to create material for their game in any way that they’ve already done. Don’t explain how to make characters, don’t explain how to make monsters, and so on. If you do any of that stuff, you’re at risk.

But all of this is kind of legally gray. That is to say, if you slap together a product that’s compatible with D&D without saying D&D and without reproducing anything with all your own original content and no proper names or references to specific game elements from D&D other than basic rules they can’t really protect, what you’re really doing is skirting the rules so that you can create unauthorized products. And, the thing is, WotC might STILL come after you. Because IP law is nebulous and has to be decided on a case-by-case basis. So you’re at risk. They MIGHT take a chance that they can successfully claim you are infringing on their intellectual property rights.

Is there a LEGAL way to make something for D&D? Yes. YES! There are actually two. And now we get into how David Flor got into trouble. Because those two options DON’T work the same way. They provide different rights. And they usually can’t both be used on the same product.

The Open Game License and the System Reference Document

The Open Gaming License (OGL) is actually not a new thing for D&D. It was originally created back in the year 2,000 when Wizards of the Coast published Dungeons & Dragons, 3rd Edition. The OGL is a license. That is, the OGL gives people permission to reproduce, distribute, and modify Dungeons & Dragons content. I’m not going to go into the whole history of the OGL and why it was a good idea and how it might have been a bad idea or anything else. And, again, specific opinions about the OGL should be left to OTHER forums and website. At the time, it was intended to open up the market so that anyone could make content for the current version of D&D and sell it or share it or whatever. Sort of. And it worked. There was a huge glut of products for 3rd Edition and many, many, MANY independent game publishers today got their start by publishing D&D content under the Open Gaming License. In fact, Pathfinder was published under the OGL. And, for that reason, you can publish a lot of stuff for Pathfinder too. And the rules are pretty similar to the ones we’re going to discuss here.

But, the thing most people don’t realize is that the term “Open Gaming” is sort of a lie. Because the OGL is a LICENSE. It is a grant of specific permissions. It doesn’t really open the floodgates. Instead, what it did was allow WotC to draw some lines around what WAS fair game for anyone to use and what WASN’T. The interesting thing is that there’s probably a lot of stuff you might be able to get away with even without the OGL for the reasons outlined above.

What the OGL really does is designate a bunch of stuff in the D&D rulebooks as “fair game.” It’s called Open Gaming Content. And all of it is spelled out in a sister document called the System Reference Document (SRD). If something appears in the SRD, it is open gaming content. You can refer to it, you can quote it, you can reproduce it, you can modify it, you can change it, you can include it in your product. Sort of. There’s a bit of legal mumbo jumbo.

Recently, WotC updated the old OGL and SRD from 3rd Edition to work with 5th Edition. That is to say, they created a NEW SRD (SRD5) filled with the 5th Edition rules and stats and monsters and spells and things and they deemed them all to be Open Gaming Content under the OGL. And the reason they did that was probably because people had already figured out that they could probably get away with writing D&D 5E content if they avoided some specific pitfalls under the old OGL anyway. So WotC went and made it official.

How does it work? First, you get yourself a copy of this document: the SRD5. The SRD5 starts with the two page OGL. The rest of the 400-page document is all the races, classes, backgrounds, spells, monster stats, and everything else that WotC is deeming as Open Content. Free to reproduce or modify in your own content.

What’s really interesting is that the SRD is freely available. Anyone can download it and print it out for their own use. And, if you already know how to play D&D and you don’t mind losing some bells and whistles, you’ve got all you need to play and run the game.

What’s also interesting is that the SRD isn’t really necessary for you to create your own content. All it REALLY does is designate the stuff from the D&D rules you’re allowed to reproduce with or without modification. Technically, if you were to write a gigantic megadungeon adventure and create all of your own monsters and not reproduce any spells or magic items or anything else from the books, you don’t really NEED it. But, hell, it’s there.

But you do have to know how to work with it and what you can do with it.

First of all, that two page OGL? It has to be reproduced VERBATIM in your work if you’re using any Open Game Content. And you aren’t allowed to change it. You have to get it exactly right. See, the OGL is not, itself, Open Gaming Content. If you reproduce it, you have to include the copyright notice and everything exactly the way they say. And you can’t move one period.


If you go down to the very end of the OGL on page two of that document, under section 15. COPYRIGHT NOTICE, you’ll see TWO copyright notices. The first is the copyright notice for the OGL itself. You need that. The second is the copyright notice for the SRD5. If you use material from the SRD5, you have to include that second notice. If you include material from SOME OTHER product that is designated as Open Gaming Content, you also have to add a copyright notice for THAT other product.

For example, let’s say I publish a dungeon adventure that works for both D&D 5E and Pathfinder. My Section 15 will look like this:

Open Game License v 1.0a Copyright 2000, Wizards of the Coast, LLC.

System Reference Document 5.1 Copyright 2016, Wizards of the Coast, Inc.; Authors Mike Mearls, Jeremy Crawford, Chris Perkins, Rodney Thompson, Peter Lee, James Wyatt, Robert J. Schwalb, Bruce R. Cordell, Chris Sims, and Steve Townshend, based on original material by E. Gary Gygax and Dave Arneson.

Pathfinder Roleplaying Game Reference Document. Copyright 2011, Paizo Publishing, LLC; Author: Paizo Publishing, LLC.

See what I did there? I’m using material from the Pathfinder reference document. Because Pathfinder has its own document, the PRD. You can check out the Pathfinder Reference Document here.

But you have to be careful. Just because something has been released using the OGL, that doesn’t mean that everything in it becomes Open Gaming Content. If I release an adventure under the OGL, my adventure isn’t free game for you to use. The only thing that is free for you to use is the stuff that is ALREADY Open Gaming Content, that is DERIVED FROM Open Gaming Content, or that I DESIGNATE as Open Gaming Content.

For example, let’s say in my awesome original adventure, I have some kobolds. And I use the kobolds from the SRD5 and provide their stat blocks. Can you use those? Damn straight. I didn’t make them. They came from the SRD. They are open.

Now, let’s say I also add a mutant kobold. It’s basically the same as a basic kobold but I give it one extra ability. Like eye lasers. Can you copy that? Turns out: yes, you can. Because my Eye Laser Kobold is derived from the basic kobold in the SRD. I took the kobold and modified it slightly. That becomes free game.

Let’s say I make a kobold matron from scratch. All original stats, original abilities, the whole shebang. Can you use that? NO. That’s mine. I made that. It doesn’t become Open Gaming Content just because it’s sharing an encounter with the derived kobolds. And just because it has the name kobold.

But, if I want to be super nice, I can go ahead and deem the kobold matron to be Open Gaming Content. All I have to do is SOMEHOW tell people what parts of my thing are Open Gaming Content and what aren’t.

For example, open up any Pathfinder supplement and check out the back of the title page. You know, where all the copyright information is. Down near the bottom, you’ll usually find a note that says “everything in this book except the Product Identity is Open Gaming Content.” For example, all the creatures in Bestiary 2 are Open Gaming Content. I can reproduce and modify those monsters. Of course, if I do, I have to add a copyright notice about the Bestiary 2. Except that Pathfinder usually takes all that stuff and adds it to the Pathfinder Reference Document.

HOWEVER, whenever you reproduce something you didn’t create yourself as part of the Open Gaming License, you have to make a note about THAT. That is, if I reproduce or modify a kobold stat block or a spell block or whatever, I have to make a note in that stat block that it is Open Gaming Content. How? Well, the license isn’t specific. It uses something called “the reasonable person test.” You need to make an effort such that a court thinks a reasonable person would be able to tell what you reproduced and what you didn’t.

That kobold stat block I used? I have to put a note on the bottom that it was “Open Gaming Content reproduced under the OGL” or something like that. Same with my modified kobold. It’s derived from Open Gaming Content.” And I have to make sure that wherever I pulled that statblock from, it’s part of my Section 15 Copyright list.

Does this seem complicated? Yeah, it is. That’s why I said the name “Open Gaming” is kind of a lie. Because there’s a lot of legal hoops to jump through. And that’s why so few products bother reproducing actual D&D content. Instead, they go with simple page references or use all original material.

Speaking of that, let’s talk about what the OGL doesn’t let you. The OGL doesn’t let you use anything it calls “product identity.” That is, stuff that WotC specifically says is a part of D&D’s brand and not to be touched. And that’s all spelled out in the OGL too.

The following items are designated Product Identity, as defined in Section 1(e) of the Open Game License Version 1.0a, and are subject to the conditions set forth in Section 7 of the OGL, and are not Open Content: Dungeons & Dragons, D&D, Player’s Handbook, Dungeon Master, Monster Manual, d20 System, Wizards of the Coast, d20 (when used as a trademark), Forgotten Realms, Faerûn, proper names (including those used in the names of spells or items), places, Underdark, Red Wizard of Thay, the City of Union, Heroic Domains of Ysgard, EverChanging Chaos of Limbo, Windswept Depths of Pandemonium, Infinite Layers of the Abyss, Tarterian Depths of Carceri, Gray Waste of Hades, Bleak Eternity of Gehenna, Nine Hells of Baator, Infernal Battlefield of Acheron, Clockwork Nirvana of Mechanus, Peaceable Kingdoms of Arcadia, Seven Mounting Heavens of Celestia, Twin Paradises of Bytopia, Blessed Fields of Elysium, Wilderness of the Beastlands, Olympian Glades of Arborea, Concordant Domain of the Outlands, Sigil, Lady of Pain, Book of Exalted Deeds, Book of Vile Darkness, beholder, gauth, carrion crawler, tanar’ri, baatezu, displacer beast, githyanki, githzerai, mind flayer, illithid, umber hulk, yuan-ti

So, that stuff? Can’t use it. Can’t mention Dungeons & Dragons or D&D or reference the Player’s Handbook or the Monster Manual or talk about Forgotten Realms or Faerun or Elminster or the Gray Waste of Hades or beholders. That stuff is OFF LIMITS.

Yes, that means you technically can’t say “this requires the D&D Players Handbook and Monster Manual to use.” Or “see D&D Players Handbook, page 17.” And as if that isn’t enough, here’s the other thing:

7. Use of Product Identity: You agree not to Use any Product Identity, including as an indication as to compatibility, except as expressly licensed in another, independent Agreement with the owner of each element of that Product Identity. You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such Trademark or Registered Trademark.

THAT is the part that keeps you from even suggesting that your thing is compatible with D&D. You can release content that works for D&D that uses rules and stat blocks from D&D with permission from Wizards of the Coast, but you ARE NOT allowed to say it’s for D&D or works with D&D or involves D&D in any way.

So, what CAN you do under the OGL? Actually, a hell of a lot. Just by including that two-page license in your product (with proper copyright notices) and by not actually mentioning D&D and not using any proper names from ANY D&D setting, you can make a D&D compatible product. Legally. Provided you only reproduce or modify stuff that is in the SRD5 and you put a note on anything you specifically reproduce.

Follow those rules and you can publish things however you want. eBooks, PDFs, printed books, Kickstarter projects, even computer software. Technically, if you don’t call it D&D and only use original material or stuff from the SRD5 and you include all the right notices, you can make a D&D video game. Just don’t include character generation. For f$&%’s sake. Notice that, for all the rules in the SRD, character generation is missing. It isn’t spelled out. WotC is SUPER SERIOUS about character generation. That’s theirs.

But let’s say you don’t want to jump through all of those hurdles? Is there another way? Yes.

The DM’s Guild

The Dungeon Master’s Guild is actually a digital marketplace that is operated by Drive-Thru RPG/One Book Shelf. It’s a place where you can distribute and sell your own D&D content. And, when you publish through the DM’s Guild, WotC lets you get away with A LOT.

Basically, as long as you’re not publishing something offensive or inappropriate (however they define that), you can publish D&D content and pretty much use ANYTHING you want from any published D&D book. You can even use specific settings, as long as those settings are the Forgotten Realms and Ravenloft. You can also publish setting neutral content. You can publish classes, monsters, maps, adventures, backgrounds, spells, magic items, anything you want. And you even get to call it D&D and you can say Drizzt in it or Faerun or beholder.

Neat, huh? What’s the catch? Well, the catch is that, as David Flor discovered, you are NOT allowed to sell your content through ANY OTHER channel.

The rule is simple: all DM’s Guild creations must be sold exclusively through the DM’s Guild storefront. And it must be sold either as a PDF or through their own print on demand service. Those are the rules. And what those rules come down to are this: WotC wants a cut. They are willing to let you use the non-OGL stuff and the D&D name and all that crap, but if you sell it, they are going to get a portion of the sale as a license fee.

What it really boils down to is that you get 50% (half) of any money people pay for your product. OBS/DTRPG keeps the other half. And, just so you know, you have to wait 2 months before you can withdraw the royalties from each sale. If you distribute your content for free, no big deal. But if you charge for it (even pay what you want), know that you’re only seeing half of that price.

If you’re curious about how the DM’s Guild works, you can check out the information here. I’m not going to go through it bit by bit because its written in plain English and not legalese like the OGL. Check it out.

Two Roads Diverge…

In the end, when you decide to distribute a product – FOR MONEY OR NOT – for D&D, you’ve got to figure out how to get it out to your fans. You’re either going to use the OGL or the DMs Guild.

The DMs Guild is a great avenue to publish short works that don’t require much money to produce. If you want to write a short adventure or create classes, spells, backgrounds, or other options that you can create on your own, it’s perfect. If you don’t have to pay for art or editing or maps and you know how to make a PDF document, go for it. You stick your product on the DMs Guild and people can find it. BUT… once you go that route, that’s the only route for your product. You can’t sell it or share it anywhere else. And that includes raising funds for it via Kickstarter if you intend to give away the product. That said, if you don’t intend to offer the product as a Kickstarter reward (which seems strange, but is totally possible), you CAN probably fund a DMs Guild product through crowdfunding.

But if you’ve got designs on a bigger product that requires real investment and you want to do a print run or give away as part of a Kickstarter or sell it in stores or anything else? Well, DMs Guild isn’t an option. And, truth be told, if you’re looking to make money doing this, DMs Guild probably isn’t an option anyway because you’re only getting a 50% royalty. And if you want to include any setting details that aren’t Ravenloft of Forgotten Realms, DMs Guild isn’t an option.

Unfortunately, without the DMs Guild, that means you have to deal with the OGL. You have to play by those rules and you can’t have any beholders attacking shrines to Lolth in Menzoberranzan. But if you can play by those rules, you can do anything you want. The OGL – despite the pain of learning to work with it – is a very free and open document that empowers content creators of all stripes. After all, if you’re willing to play by the rules and use mostly original content, you can create a massive multi-level megadungeon adventure, kickstart the whole thing, and sell it as a PDF or gorgeous physical book with your own name right on the front!

And, seriously, check out David’s Kickstarter: The Coming Dark. Even I’M supporting it. And I’m cheap as f$&%.

30 thoughts on “Save vs. Lawsuit: How To Publish D&D Content

  1. Thanks for this! I know you’re not a lawyer, but I was curious about your take on this question, given all the research you’ve done: Let’s say you publish a D&D compatible module as per the OGL and don’t make any mention of “D&D,” “Wizards of the Coast,” or any other copyrighted term in your published product and your product follows all the OGL rules. Then let’s say you want to tweet or blog about your OGL-friendly product to spread the word, including a link to where one can download the product. Could you mention in your tweets and blogs that the module is compatible with D&D, or would that still break the rules?

    • My read is that you would technically be in violation of the rules because you are making a claim of compatibility about the product and by accepting the OGL, you are attesting that you won’t ever do that.

    • I notice a few products on DTRPG often include copy like “Compatible with the 5th edition of the world’s oldest role-playing game” or something to that effect, without mentioning D&D specifically. That might be how other people are getting around it (I don’t think WotC has trademarked “World’s Oldest Role-Playing Game”), but I have no idea what their legal footing is.

      • It also occurred to me that a clue to what system your module is compatible with is right in the OGL text that you’re required to put into your module. While it’s a bit cryptic, fans of D&D 5E (who you’d be writing for) will at least suspect that the reference to “System Reference Document 5.1 Copyright 2016, Wizards of the Coast” in the license probably indicates D&D 5E compatibility.

  2. A good article, but incorrect on one point: you _can_ include character creation in an OGL product. The simplest example of this being the most obvious: Pathfinder does it. Indeed, the Pathfinder Reference Document you link includes extensive character creation rules.

    What you can’t do is reproduce the text of D&D’s character creation method, for copyright reasons.

    • I think that was the point Angry was trying to make: You can’t include _their_ character creation. And as far as I remember Pathfinder’s is not identical to 3e’s either, including a variant skill system.

      • PS – technically a Pathfinder character, come to think of it, isn’t a 3e character. Yes, you can easily use it in place of one, but through the skill system alone it isn’t exactly the same. So they not only wrote their own character creation text, theirs also produces a somewhat different but eerily similar result. I haven’t delved into the details of that in a long time, however… I remember reading “back then” that the rationale was to improve on 3e’s skill system, work out some kinks, but from a legal point of view this dissimilarity is probably one of the better things they could do.

        There’s a bit of guesswork in here, I did not play 3e and very little Pathfinder, not really my cup of tea.

        • WotC has taken numerous actions against those who try to republish character generation rules or create unlicensed character generation products. Whether they can legally defend those actions is decided by in court. But they can still issue a cease a desist notice and threaten legal action. A company like Paizo has the deep pockets to defend itself against such a claim. The average indie GM doesn’t.

          What I’m saying is that WotC has established a pattern of taking republishing their character generation rules very seriously. And I strongly advise people not to try to reproduce them in ANY format regardless of actual legality.

          • Those “unlicensed character creation products” aren’t relevant to a discussion of the OGL, for a fairly obvious reason.

            But I’m not aware of them taking action against any OGL products simply for including character generation rules. Pathfinder is only the highest profile example of a game doing so, but there are many others – including the out-and-out retroclones of the pre-WotC editions, most of which are small press ventures that don’t have Paizo’s deep pockets.

            It was the old d20 license (and presumably the GSL) that excluded character creation rules. However, since the d20 license has long since been rescinded, it’s no longer relevant to current publishers either.

  3. Great article! I’m not an attorney but did graduate from law school and focused on IP law in it, and the information you provided is on-point. Glad you wrote the article – it is incredibly easy to get lost navigating IP and good advice can be tricky to find.

    Also, good to know re: character creation. I hadn’t even noticed their omission in the 5e SRD. There seems to be a lot of rules and content unintentionally omitted from the SRD (see Eldritch Blast), but I have to imagine the character creation rules were intentionally left out for very specific reasons.

    • They DID actually issue a statement as to what they did and did not include in the SRD. And the explanation leads to me have some interesting theories about WHY they released the SRD5E at all. I’d be happy to discuss them privately with you.

      • Sure, I’d be interested in hearing the theories! I did not know about those statements from WOTC. Feel free to email me at the address included in the chat name.

        • I would like to participate in this too. Worth noting that “fair use” is a specifically US thing; other nations are generally more restrictive in what they call “fair dealing” because they lack the explicit US protections on free speech.

  4. I _am_ a lawyer, and this restores my faith in the ability of normal humans to read documents. 🙂 Thank you for the well-thought-out and clear description of a perennial gaming issue.

    • As a layman, the whole “You must include this copyright information about D&D, WotC” followed by “You may not mention D&D or WotC at all” had my head spinning. It’s nice to have someone interpret it for me, and cause that headache to go away.

  5. I know you aren’t a lawyer, but say I want to publish monsters that I’ve converted to dnd from say a video game.

    What can I include from the video game? I’m sure I can’t include art from the game, but can I include the name? How do I know if a name is specific enough to count? Can I include someone’s art (with their permission) if it depicts something from the game (say a drawing of a specific monster done by a third party)? Can I mention the name of the game in the title?

    Thanks for any help you can give :)!

    • I’m not a lawyer either. but I assume you could call a monster a Deva or Kobold or even Barbed Devil. But you would have to change the name of something listed as product identity like Githyanki or carrion crawler.

      • There may be problems even with “kobold”: it’s a regular old German word that means something like “imp” or “leprechaun”, but the “lizard dudes” meaning seems to originate with D&D.

        There was a computer game called “Realmz” in the mid-90s that apparently had some legal problems with D&D and ended up having to change a lot of their terminology (as I found out when I Googled it a couple years ago during a fit of nostalgia). In the current version of Realmz, for instance, characters have not a “class”, but a “caste”. I fought “kobolds” as a kid, but they’ve been renamed to “krise”.

        They even changed the names of all the ability scores: if memory serves, it used to be the “standard” STR/DEX/CON/INT/WIS/CHA, but Realmz characters’ abilities are now based on their Brawn, Agility, Vitality, Knowledge, Judgment, and Luck.

        I’m not sure how much of this was strictly required, and how much was simply covering their ass just in case (they changed a *lot* of names). It would be interesting to know the history of what was changed when and why, but info is hard to find.

      • I was actually talking about the opposite direction. For example, say I wanted to make a dragon age supplement, could I name the monsters darkspawn?

        • That’s completely different from whatever applies to D&D. As far as I’m aware neither Bioware or Green Ronin have released a SRD/OGL for the setting/game. If that’s the case, you simply can’t write supplements for Dragon Age. If you REALLY want to do that, then you’d have to enter in contact with Green Ronin/BioEA to see your possibilities…But..I wouldn’t keep my hopes up.

      • I thought that might’ve been too obtuse of a reference to your passing mention of Joe vs the Volcano. I should’ve gone with a more recognizable line.

  6. Thanks Angry — I asked a similar question and you were kind enough to give me a boiled down answer tailored to my needs: I wanted to know how you did posts related to Dungeons & Dragons, because I was looking to publish materials related to a Bioware product (Maker help me). Your advice was excellent (not what I wanted to hear, sure, but what I needed to know). Now with your explanation of OGL etc., I understand even better the difference, since no such thing will ever exist for Dragon Age, I can stop thinking about it entirely and just have fun making anything I like, for free.

  7. Just when I already felt too busy with running games, and playing in games, and generally living, the idea of putting some material out there is now nagging at me once again! This article is going in my collection of things people should know about the world. Also, I was once told that if you wanted to protect your copyrights to something, that you should email it to yourself, as that creates a dated record of your creation. Would that hold up in the legal arena?

  8. Does anyone know what would happen if I made a DM’s guild adventure that included product identity, and then made a different product that did not include product identity, and then inside the second product included a note that the first product was a continuation of the adventure in the style of ” [this adventure path] modules 1,2,3,5, and 6 are ” compatible” with DM’s Guild product [this adventure path] module 4.”?

    • If you cross the streams like that, all life as you know would stop instantaneously and every molecule in your body would then explode at the speed of light. Basically, it would be bad.

      More seriously, it’s probably doable, but you’d have to be very, very careful to make sure that everything complied with all the appropriate licenses. And, in particular, the statement of compatibility might be problematic. (And it’s entirely possible that WotC would pull your DM’s Guild product from sale even if you got everything just right – they’ve left themselves a get-out clause to do just that, even if you got everything just right.)

      My best recommendation would be: Don’t cross the streams.

  9. I’m unclear on how the OGL affects digital games. If I was to implement parts of the SRD into a mobile game:
    1. Would I be required to open source the code of the game?
    2. Can I sell it?

    Can you give me a best guess?

  10. I was wondering something that I either can’t seem to find a straight answer to, or I’m just not looking hard enough I suppose. I’m writing a book at the moment and the two main characters are Genasi. I would like to know if that would be copyrighted and get me in trouble for using the term Genasi, or Kobold, or any other terms from D&D.

    • Also, the book doesn’t have anything to do with stats, or anything directly involving the game. It would basically be me using the term ‘Elf’ or ‘Dwarf’. However, since those are common, that’s different than using a specific D&D character, such as Genasi.

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