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.
