Tag Archives: Mayfair Games

The Legal Fight Over Happy Birthday and What It May Tell Us About D&D’s Rumored OGL 1.1

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Remember when chain restaurants celebrated birthdays by sending a parade of servers to your table performing a clapping birthday chant only heard in chain restaurants. The staff never sang “Happy Birthday to You” because until 2016 the media giant Warner claimed to own a copyright to the song. Anyone who wanted to perform “Happy Birthday” in public needed to pay for a license or risk the attention of Warner’s lawyers. Before 2016, Warner collected about two million dollars a year licensing the song.

The story behind those license fees may reveal insights about the rumored plans of Wizards of the Coast to take a cut from publishers selling D&D-compatible products.

Both the words and tune to “Happy Birthday” date to the 19th century, and they appeared in print together in 1911, so their copyright probably expired long ago. In 2010, a law professor researched the song and concluded that it almost certainly had already left copyright. Meanwhile, Warner made sketchy claims that their copyright held and collected $5,000 a day, year after year. Those paying for a license surely knew that Warner’s copyright claims might die in court, but why suffer the expense battling a media giant with $2 million a year at stake just to save something like the $5,000 license fee the movie Hoop Dreams paid to include the song. Paying for a license proved safer. Warner’s plans would have kept them collecting license fees until 2030 if not for a meddling documentary filmmaker who raised money to take Goliath to court.

How does this story parallel Wizards of the Coast’s rumored bid to use a new Open Gaming License to collect license fees from those creating D&D-compatible content?

Most people using the OGL probably don’t need it to sell their creations.

In the 80s, Mayfair Games published a line of generic adventures and supplements compatible with AD&D. When the cover of Dwarves (1982) boasted a product “suitable for Advanced Dungeons & Dragons,” TSR sued. In Designers & Dragons, Shannon Appelcline writes, “Intellectual property law as related to games is an unsettled subject. The general understanding is that you can’t protect game mechanics, except with a patent. As a result, a game manufacturer’s primary protection against other people using its IP is a trademark. Other publishers can’t use trademarks—like Advanced Dungeons & Dragons—in a way that would cause ‘confusion’…but that didn’t limit their use entirely.” The suit ended in a lopsided settlement for Mayfair where the company gained a perpetual, royalty-free license to use the AD&D trademark with certain restrictions. Insiders say that TSR feared the legal precedent that would be set if Mayfair won.

Could a modern publisher sell a D&D-compatible product touted as “Suitable for use with Dungeons & Dragons?” The courts would have to decide, but signs point to yes. For a final answer, a publisher would need to risk a potentially ruinous legal entanglement with Hasbro.

Surely, much of the popularity of the 20-year-old OGL stems from a possibly misplaced sense that it offered D&D-compatible products free protection from any legal issues. The question of whether products needed the license or not seemed moot.

Still, most publishers of products suitable for D&D could probably skip any license. During the fourth-edition era, when most publishers avoided fourth edition and its restrictive Game System License, Goodman Games produced a line of “4E Compatible” adventures that omitted both the OGL and GSL.

For years, movie producers opted to pay for “Happy Birthday” despite dodgy copyright claims because a license fee offered a safe and predictable option. Although a 25% royalty on revenue over $750,000 may seem unaffordable, this would simply represent Wizards’ opening offer. The company has likely approached the big OGL publishers to negotiate better terms that won’t force anyone to court. Today, the rumored OGL 1.1 suggests that Wizards of the Coast may bet that publishers opt for the safer and perhaps cheaper option of simply paying for a license.

1994: TSR Declares War on the Internet’s D&D Fans

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Nowadays Shannon Appelcline writes about the history of the roleplaying game business and writes most of the product histories on the Dungeon Masters Guild. In 1994, he administered a computer at Berkeley University that served fan-created content for the indie Ars Magica roleplaying game. That role landed Appelcline an email from Dungeons & Dragons publisher TSR claiming that his site offered unauthorized D&D content and demanding that he unplug. “There were no—absolutely zero—Dungeons & Dragons files on the website,” says Appelcline. “They were looking at a roleplaying site not related to D&D and they sent one of their nastygrams.”

The demand enraged him. “I suspect I wasn’t vulgar in saying what they could do with their letter, but I’m sure I was thinking it and I was certainly very angry.

“Overall if you think about the Internet at that time being focused on [educational domains], you can see that you had a lot of anti-establishment people on the Internet and so none of us liked TSR that much. Everyone wrote T$R for example. Now they’re sending these nasty letters for legal rights that they probably don’t have. The letter I wrote [in response] said, ‘Not only do we not have any files related to D&D on our site, but we never would. I would rather poke my eye out with a stick before doing anything to help you.’ That phrase was genuinely absolutely, in the letter.”

TSR sent similar cease-and-desist demands to sites across the Internet. Most of the targets actually served fan-created content devoted to D&D. A few delivered files that clearly infringed on TSR’s copyrights.

All these notices bore the name of manager Rob Repp whose job leading TSR’s Digital Products Group included things like managing TSR’s presence on America Online and heading the development of CD-ROM products. No other management employees boasted any Internet experience at all, so Repp drew the chore of leading TSR’s Internet presence. TSR had just gained their first email address a few months earlier. Despite working for TSR, Repp wasn’t a gamer, so he failed to distinguish content for Ars Magica from D&D. But he can’t be dismissed as just a suit. He’s also credited with the border art on many of TSR’s Planescape products.

Repp first appeared on the Internet in 1994 when he replied to a request for an illegal copy of the Monsterous Compendiaum posted on the rec.games.frp USENET newsgroup.

>Anyone know of an ftp site that has a monstrous compendium available for
>download? Thanks in advance. (Please email to j...@thepoint.com).


I'd be interested in knowing about this one myself. :)

Rob Repp                           | InterNet: tsrinc@aol.com
Manager, Digital Projects Group    | InterNet: mobius@mercury.mcs.com
TSR, Inc.                          | CompuServe: 76217,761
__________________________________ | GEnie: TSR.Online  AOL: TSR Inc
All opinions are my own, not TSR's | 414-248-3625    Fax 414-248-0389

Despite a TSR’s employee’s interest, someone still posted a link to a file server distributing the infringing content.

The budding Internet created fears beyond such blatant infringement. Repp explained, “When gamers begin sharing their creations with the public, whether for profit or not, they are infringing our rights. If we don’t make an earnest attempt to prevent this infringement of our trademarks and copyrights, our ownership of these extremely valuable assets may be jeopardized.”

Companies that fail to defend their trademarks can lose them. Just ask the original makers of cellophane, escalators, and trampolines. However, D&D fans and TSR would debate how much copyright law justified the company’s cease-and-desist notices.

In an official statement, TSR told fans interested in distributing content to avoid infringing on D&D by making the content generic. “If the party encounters a hydra, let the GM look up the stats for the hydra in the game system he is using. Don’t set the adventures in a TSR world. Create your own or use one from history or legend. Don’t use monsters, spells, etc. that were created by TSR. Create and name your own. Draw on history, legend or reality. Even spell their actual names backward for uniqueness.”

For fans who insisted on sharing content for D&D, Repp promised a solution. “Sometime very soon, we’re going to create a place where gamers can legally upload and share their creations, including modules, stories and software. We are definitely interested in fostering goodwill among customers. Eventually, we want gamers to be able to turn to TSR in cyberspace as easily as they do in a hobby store.”

“IBM PC Computer” by Accretion Disc is licensed with CC BY 2.0.

None of Repp’s goodwill cushioned the impact of the nastygrams.

Unlike Appelcline, Trent A. Fisher had set up a server that actually held D&D-related content: a collection of the best of the rec.games.frp discussion group. “I was pretty angry about all of this. I read most everything that went onto the site, and I never would have permitted anything which outright copied TSR materials. Apparently, someone in TSR leadership must have felt that any fan-generated work represented competition that had to be stamped out.”

Jim Vassilakos also edited D&D-related content in his fanzine The Guildsman . He served it from Stanford University. At the time, he wrote, “Many gamers actually dislike TSR, and they have since before TSR was even on the Internet. I think a large part of the reason has to do with the way TSR deals with competition.”

That distrust of TSR extended to much of D&D’s fan community. Critics pointed to TSR’s lawsuits against competitors. When Game Designers Workshop dared to publish founder Gary Gygax’s latest roleplaying game, TSR sued. When Mayfair Games published generic content “suitable for use with Dungeons & Dragons,” TSR sued. Gamers joked that TSR stood for “they sue regularly.” TSR’s takeover of wargame publisher SPI also troubled gamers. Partly because TSR stiffed lifetime subscribers to SPI’s magazines. Also because most of SPI’s design staff quit when faced with working at TSR. Overall, gamers saw TSR as a company using a dominant market position and deep pockets to bully fans and competitors.

Nonetheless, TSR fulfilled its promise to provide a place where gamers could share their creations. In a time when the company lacked a web presence, the company found a host for fan-created content.

On September 6, 1994, TSR announced that fans could legally upload content to a server hosted by an outfit called the Multi-player Gaming Network or MPGNet.

TSR is pleased to announce a licensed Internet FTP file server. MPGNet's
site (ftp to ftp.mpgn.com) will carry a license that allows your creations
to be shared with the world via the Internet.

MPGNet called itself “a business that provides low-cost, interactive multiple player gaming entertainment,” but it seemed like a small enterprise. Company head Rob Miracle suggested users cope with his site’s low bandwidth by connecting during working hours when few online gamers were active. (He did promise to upgrade MPGN to a T1 line in 1995. In 1994, a network business dreamed of a 1.44 MB per second T1 connection. Now houses in my neighborhood get a download speed of 360Mps and a upload speed of 25Mps.)

TSR’s takedown of gamers’ file servers had inflamed fans, but the invitation to share content on MPGNet included a requirement that provoked rage.

In order to distribute your texts, software and message digests via this server,
you must include the following disclaimer:

_______________________________________________________________________________
This item incorporates or is based on or derived from copyrighted material
of TSR, Inc. and may contain trademarks of TSR. The item is made available
by MPGNet under license from TSR, but is not authorized or endorsed by
TSR. The item is for personal use only and may not be published or
distributed except through MPGNet or TSR.
_______________________________________________________________________________

The last line seemed to imply that TSR gained the right to publish or distribute people’s creations, and that proved most alarming.

Next: TSR vs. the Internet—From They Sue Regularly to Open Gaming

Related: The True Story of the Cthulhu and Elric Sections Removed from Deities & Demigods

Little-known D&D classics: Fez

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In 1980, the Advanced Dungeons & Dragons Open tournament played much like D&D games at home. The scenarios included dungeon exploration and fights with a dash of problem solving. Success came from quick play and cooperation. The Against the Slave Lords adventures show the sort of game players could expect.

In 1979, Len Bland and James Robert tried to enter the AD&D Open at Gen Con, but were turned away, so they decided to create their own tournament for next year’s convention. In 1980, they introduced Fez, a tournament like the AD&D Open, only better. In 1981, my buddies and I, at our first Gen Con, stumbled into the Fez tournament and had a blast, more fun than we had in that year’s AD&D Open. For several years, even as our interests wandered from AD&D to other role-playing games, Fez remained the Gen Con event we most eagerly anticipated.

Plus, Fez featured a play style different from the typical D&D game, and it blew my impressionable mind.

FezI The Wizard’s Vale was originally printed as Fez I Valley of Trees

Fez I The Wizard’s Vale was originally printed as Fez I Valley of Trees

Fez I: Wizard’s Vale sets a pattern the tournament would follow for years to come. Players begin the game unfamiliar with their characters’ abilities. The players start with a brief description of their character and hints of what the character can do, but with no game stats, and with no knowledge of their goals. In Fez I, the characters begin the game waking with amnesia.

This setup points to what made Fez so brilliant. The character sheet lacked the pat solutions of skills and magic and THAC0. To succeed, players could only rely on their wits as and whatever solutions they could uncover in the game world.

In this blog, I’ve shown how a reliance of skill checks tends to encourage players to focus on their character stats and to lose interest in the game world. When a skill check solves any problem in the game world, the details of the problem become unimportant.

When I played Fez, little seemed to demand a roll. Behind the dungeon master’s screen, Fez was a D&D game complete with THAC0 and HP (or HTK as the module writes, perhaps as part of an agreement between Mayfair Games and TSR). From my player’s perspective, Fez factored rules out of the game, making immersion the game world all important. Normally, I would not want to play battles without character stats, but in Fez, the objective seemed to be to avoid fights.

In Fez, the characters always started without knowledge of their ultimate objectives. This convention started the players and their characters on the same footing. It enabled Bland and Robert to start the players with a puzzle—the task of learning their goal.

Fez II The Contract

Fez II The Contract

Each tournament offered more puzzles and mysteries beyond the first. In Fez II: The Contract, players must settle Fez’s bet with a demon by accomplishing seven impossible tasks. Every task offers a puzzle with a variety of solutions. For example, players can circle the world in a single day either by repairing a crashed spaceship and circling the world, or by going to a library, finding a map, and drawing a circle around the world.

In Fez II, characters are plucked from the modern day, and one is an engineer, so repairing the space ship is less impossible than it seems. Every Fez challenges players with novel characters. In the first Fez, one player gets a Lammasu character. In Fez III: Angry Wizard, everyone plays a polymorphed monster. In Fez V: Wizard’s Betrayal, someone plays this:

The Orbion from Fez V

The Orbion from Fez V

Much of the Fez’s charm comes from a gleeful mix of magic and technology. The game’s namesake, the wizard Fez, travels though time and frequently visits the modern day. The scenarios mix faerie and monsters, aliens and robots, with as much joy as a kid mixing action figures and toys for make believe. Despite the light tone, the first adventures still feel like D&D and avoid turning goofy.

Fez V Wizard’s Betrayal

Fez V Wizard’s Betrayal

After Fez V, Bland stopped writing the series, and the tone becomes sillier. For example, Fez VI: Wizard’s Dilemma includes a gag where the players overcome orcs by getting them to argue over whether a beer tastes great or is less filling. Years later, when I resampled Fez’s descendent, the NASCRAG tournament, it seemed to have lost any flavor of a D&D world to gags and pages from a puzzle book tacked to the dungeon wall.  For my taste, it lacked the old magic.

But before Len Bland passed the torch, he and James Robert finished with Fez V: Wizard’s Betrayal, an adventure that would blow my mind again. Fez V inspired me to do a Gen Con tournament of my own. More on that in a future post.

During the 80s, Mayfair Games published the Fez adventures as a series of modules. You can still find used copies at affordable prices.