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

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.

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

  1. Marty

    I think one thing that alters the landscape somewhat is the board game lawsuit between Bang! and Legend of the Three Kingdoms. LotTK was a direct clone of Bang! All the mechanics. But it used different artwork and worded the rulebook differently enough that it would not be in violation of copyright. Everything else, in terms of game play, was the *exact* same.

    Legend of the Three Kingdoms never disputed that their game was a mechanical replica. They even stipulated it in their defense. But they pointed out that game mechanics are *not* protected under copyright and were not patented (it’s almost impossible to patent a game mechanic for various legal reasons — mostly related to prior art).

    Bang! lost the lawsuit even though LotTK was a direct close. Hasbo lawyers would absolutely be familiar with this case. They are walking a *very* dangerous line and are hoping (as you say) no one challenges them on this.

    But if someone does, they might be dismayed to find out *very* *little* of D&D can be protected.

  2. TW

    The Bang! case is misleading; nobody’s arguing that D&D mechanics are patented, and it’s common knowledge that rules can’t be trademarked. (I have to wonder what the Bang! people were thinking when they filed suit–were they representing themselves?!?)
    The problem is rules *expression*. What most commentators on this case don’t seem to realize is that Hasbro hasn’t declared Continual Light or Fireball protected expression. Just stuff like the Mind Flayer. But suppose they did? In essence you’d have to rewrite the *entire* game system or pay for the SRD. Because I think you could make an excellent argument that Continual Light *is* protected expression: the idea certainly dates from D & D and not before. Also, consider making this argument to a non-specialist judge.
    But here’s where it gets ugly. “We’ll write our own!’ cry disgusted fans. Well, go right ahead! It turns out that this is like writing your own operating system. It’ll suck, probably, but that’s of minor importance. The real problem is that you’ll have no hope of getting any kind of distribution or scale–we see this from the hundreds, possibly thousands, of rare rulesets that people like Shannon Appelcline and Jon Peterson collect and study. Most date from the 70s, are terrible, and are so rare that they’re not common enough to be worth collecting (weird paradox, but that’s how it works).
    This may be Hasbro’s real move: to starve the entire indie movement of oxygen. The money isn’t a big deal, although if you’re publicly traded no amount of income is too little. The real issue is the PR exposure. Every. Single. One. of the racist, sexist, homophobic, anti-semitic, what have you scandals of the past decade have come from the indie scene. If I were Hasbro, I’d *lose* money to choke that off.

    1. Daniel

      Huh. I was under the impression that all the big scandals were from WotC (racist depictions in Ravenloft & Spelljammer, that one adventure from Radiant Citadel that was altered without the authors consent), and even of these I think only Spelljammer came close to hitting mainstream media.

      I can see Hasbro/WotC wanting to kill NuTSR with fire because not only are they the worst, they are claiming ‘brand legitimacy’ (we’re the REAL d&d), and that association could really hurt the D&D brand.

      But apart from them, couldn’t Hasbro/WotC just ignore anything from the Indie sceen? Like the way big IPs ignore fan fiction?

      1. TW

        Judges Guild, Zak, and of course NuTSR spring to mind without even a second’s thought. The Spelljammer content originally dated from 1982, and looks positively progressive compared to some of the other stuff from that era. Ditto the “Vistani” in Strahd (and the “Rhennee” in Greyhawk, but there’s no Greyhawk anymore).

        DnD is heavily intertwined with social media, a circumstance that must give a Fortune 500 corporation absolute fits. There’s no question that social media has been a huge influence on moves the company makes; it’s 100% responsible for the idea that backgrounds, not lineages, are the important thing for characters, for instance. They’d *love* to ignore this stuff and can’t, because the risk is asymmetric and fat-tailed (the fancy way of saying that seemingly minor things can go nuclear in that environment, and it’s hard to predict which will). The people behind NuTSR really don’t have much to lose, but Hasbro does. And it’s murky: is it DnD, or just a clone? Nobody but a few nerds understands the difference, or cares.

        Fanfic doesn’t have much of an effect outside its weird little circle; DnD is big enough and popular enough to get lots of nerd coverage (io9, Kotaku, boingboing, etc.) and that stuff can break big, especially since a lot of nerd journalism is some 23-year-old with a low-quality journalism degree riffing on crap they read on Twitter.

    2. Marty

      The other wrinkle is that WotC claims it can “deauthorize” the OGL which isn’t true (granted, someone has to challenge that).

      But, assuming they cannot (which several folks, including the architect and former WotC VP Ryan Dancy say they cannot), that means they have already released “Continual Light” (to use your example) into the wild with SRD3 and/or SRD5. Anything put into the SRDs is now open content in perpetuity.

      I know that’s what they want to Undo… but the barn door is already open and Mrs. O’Leary’s cow has kicked over the lantern (to mix some metaphors).

      1. TW

        Problem is that the contract doesn’t state it’s irrevocable. “Perpetual” does not mean “irrevocable,” a critical distinction in contract law. All contracts are considered revocable unless explicitly called out otherwise; admittedly, it’s even rarer than a perpetual license.

        They can and will revoke it. This is pretty basic first-year Contracts. Source: an IP lawyer on Medium…and my nonspecialist GF, who said “Oh yeah. That’s cut and dried.” Dancy’s opinion is not relevant. He was also not playing with the big boys when he architected it. Hasbro’s a whole ‘nother dimension.

        1. simontmn

          “All contracts are considered revocable unless explicitly called out otherwise”

          This is not true, or at least is misleading. I can’t contract with you to deliver say 5 tons of asphalt for X money, then say “Oh, I revoke the contract”. If I refuse to perform, you can sue me for breach.

          The OGL 1.0 is revocable for breach, as set out in the licence. That does not mean it’s revocable at-whim.

          1. TW

            The problem here is that the license has no quid pro quo. If you tell me you’ll deliver asphalt, I agree to pay you, and one of us backs out, that’s clear failure to perform. What responsibilities do the indie creators have here, other than agreeing to follow the agreement, which is pretty circular? Goods aren’t being exchanged here, neither are services. So you’re left with, I dunno, goodwill or something, which I wouldn’t want to take in front of a judge. “It’s meeeean!” usually doesn’t have much success as a legal precedent, sadly.

            I’d read this more as a policy or set of guidelines, not an agreement to deliver asphalt.

            Revoking it is an “update,” which is indeed allowed in the original text.

            But this doesn’t matter in any event. The language about “we own world rights forever” is far more chilling and legally defensible.

  3. Daniel

    Of all the takes on the new license this feels, disappointingly, the most likely. Let’s scam a bit of money from everybody. It’s not legal but hey, we’re big enough that no one will challenge us. So gross. It really ties into the whole ‘banality of evil’ thing.

  4. colin

    25% royalty is an untenable “opening bid” because (a) everyone knows that RPG publishers do not make 25% gross margins, that’s kind of laughable; (b) pretty sure $750,000/yr is not enough gross revenue to support aggressive custom negotiations with lawyers involved; and, most importantly (c) the OGL is successful because it let random amateurs feel safe about starting a sideline writing for D&D stuff. “We will do something, if you get successful, that sounds like it will ruin you” does *not* let random amateurs feel safe.

  5. Jon Mattison

    On this surface this all sounds terrible; Hasbro/WotC gutting their own industry, etc… I’ve read many “too early to tell” responses.

    I will admit I don’t know much about the OGL, how it works, what it includes, etc. but obviously it’s a big deal with all the buzz going on around it.

    If game mechanics can’t be protected, but names/creatures like “beholder” can; generally speaking, can we/they just scrub all “beholder”-like references out of their product and move forward? Is it as much a matter of being able to market product as “5e compatible” and get/have to include a 5e logo on their cover?

    Obviously in reality, what company from indie-developer up through Paizo can pivot their product line this nimbly?

    I’m not suggesting that anyone go “design their own game” over this, but across the industry what would the difficulty level be to scrub/sanitize all 5e/SRD/OGL-related content? Basically a “we’re not putting up with your OGL shenanigans!” message. And/or, could/would this bring together a conglomeration of the bigger affected companies in a kind of “class action” kind of thing to challenge this?

    1. TW

      It’s unlikely to gut the industry, which is 200,000 very passionate, difficult people and 10,000,000 consumers trying to figure out how to play. Those indies are 99% of the problems and less than 1% of the profit.

      It will have a crippling effect on the indie sector, which relies on the SRD and also on platforms like DrivethruRPG, Patreon, Kickstarter, Indiegogo, etc., which are rolling over faster than the Italians did in WWII. One thing I’ve learned from advising startups is that distribution is the oxygen of a business idea. For any kind of publishing product, distribution is now the major means of product discovery, ie. people even hearing of your product in order to buy it. Killing these platforms will extinguish the scene as we know it.

      Removing owlbears won’t be enough, I suspect…at least that’s the way most creators are betting.

  6. Connect4

    If you’re interested in whether you really even need the OGL, then GSLLC has a very long series of blog posts (from 2019 to present day) that may be relevant to your interests. I’ll link to one chosen semi-arbitrarily that addresses the issue of the new OGL:
    Your analogy to “Happy Birthday” seems apt. The short version is that, as in the “Happy Birthday” case, though for different reasons, they really don’t have a legal leg to stand on; their legal threats are based solely on the (very plausible!) threat of dragging out a court case until the victim runs out of money and folds. The things that they want money for are explicitly not copyrightable in the first place. They have other IP that *is* copyrightable, but they’re not offering to license that, not for any price.

  7. Pingback: D&D’s Biggest Controversies Ranked—3. Wizards of the Coast Attempts To Revoke the Current Open Gaming License | DMDavid

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