Hi all, I realize that I’m new, but I couldn’t help but throw my two cents in here with the rest of you. First, I am not an intellectual property expert. But, for what it’s worth, I have graduated law school (not yet admitted to the bar–awaiting test results) and I know a thing or two about reading statutes and case law.
With that in mind, I would like to point out that while the actual Rulebooks, as creative expressions of the rules of the game (complete with examples, illustrations, etc.) are protected by copyright, the underlying substance of the rules (i.e., the actual game mechanics) are not. For example:
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Copy/pasting the two rulebooks and the the FAQ together and then distributing that compilation would almost certainly amount to copyright violation.
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Creating your own “Global Bible” by writing a unique and original expression of rules that are functionally equivalent to the combined OOB game would most likely not amount to a copyright violation.
To put it another way: the actual, literal expressions (the form) of the rules as written are protected by copyright. The underlying substance of those rules, i.e., what they actually mean and how they direct the interactions between the players and the components of the game, is not protected. Of course, writing up a new rulebook, complete with your own examples and illustrations, would be a very serious undertaking, but it would also provide an opportunity to clarify many of the ambiguities in the existing rules that have resulted in such extensive discussion on this forum.
Significantly, this avoids resorting to dubious interpretations of the fair use doctrine, which, by the way, is tantamount to conceding that you have made unauthorized use of copyrighted work, but claiming that it was “fair” to do so under the circumstances. I will touch on the highlights.
1: Purpose
Simply referring to your project as “educational” in nature does not legally make it so. For purposes of the fair use doctrine, “educational” means actually used in a classroom or other academic setting. This is more for things like screening a film or making multiple copies of a work to distribute to the whole class.
Similarly, the non-profit nature of your project is a factor to be considered, but lack of a profit motive does not necessarily imply fair use. Examples of legitimate not-for-profit purposes are contained in the statute itself, to include:“criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research . . . .” 17 U.S.C. § 107.
2: Nature of the Copyrighted Work
I have read assertions elsewhere in this thread that the project might qualify as fair use because the rulebook can be described as a “collection of facts.” I don’t know if this is stemming from some notion that the rules are facts (as opposed to opinions), but I think there is a fundamental misunderstanding here as to what this phrase means in the context of copyright law. Typical examples that are regarded as collections of facts are things such as (a) a list of all 50 U.S. states and capitals or (b) a list of all the names and numbers in a phonebook. Those are the types of dry, unoriginal facts that are not protected by copyright. In contrast, the rulebook is a creative expression of the rules that ought to be regarded as a literary product in its own right. That said, I reiterate that the “underlying facts” on which the rulebook is based (game mechanics), when abstracted from the creative expression (the actual words used) are not protected.
3. The Amount and Substantiality of the Portion used in relation to the Copyrighted Work as a Whole
Basically, this factor means that quoting some small portion of a work is generally permissible as fair use. The longer the work, the more substantial that quotation can be and still qualify as fair use. I think it should be fairly obvious that copying even the textual portion of two entire rulebooks and an FAQ and more-or-less pasting that text together (admittedly, with some editorializing and alteration) would be far too egregious to be considered “fair” use. I do not mean to imply that this is what you are proposing, merely pointing out an example of something that clearly at the wrong end of the spectrum.
Also, making minor additions and alterations to a complete work does not thereby “transform” the work and make it original. This is like saying that I could quote the entirety of The Great Gatsby (nevermind that the copyright on this one will expire in a few years), supplement it with a foreword, afterword, and some commentary interspersed in between chapters, claim that I had brilliantly “transformed” Fitzgerald’s masterpiece, and then distribute the monstrosity at will claiming fair use. This is not what fair use means.
4. Effect of the Use on the Potential Market
I think you pretty much hit the nail on the head with your last comment. The fact that Wizards chooses to distribute the rulebooks on their website is one factor, but it fails to consider the potential market for a true consolidated “Global” edition.
TL;DR: copy/paste=bad; reinvent/reinterpret=probably OK.
Disclaimer: The above statements are not legal advice. There is no substitute for consulting with a competent and experienced intellectual property attorney.
