Is it legal to "use" (reference) copyrighted material in a way that requires ownership of its original publication?

Question

The actual question:

Suppose I wrote a campaign setting for Dungeons and Dragons 3.5, and wanted to say something like “To use this material, you need Tome of Battle by Wizards of the Coast,” and then say something like “The monks of this monastery take levels in the swordsage class (Tome of Battle pg. 16),” in the book?

Could I go further and say, “the monks of this monastery take levels in a modified swordsage class (Tome of Battle pg. 16), which receive the following bonuses instead of their usual features listed at first level:” and then include some original content? What if it was worded as “which replace the usual Discipline Focus features of that class with the following:” and then wrote original content?

A Footnote about WotC’s trademarks

For reference, Wizards of the Coast does not have a trademark on “swordsage” or “Discipline Focus” – would things change if they did? What about things they do have trademarks on? I believe they do on some of their iconic monsters (the ones the OGL doesn’t let you use).

Open Game License?

Does the answer change if I use the Open Game License (RTF file)? (obviously the bit about the Product Identity monsters does)

Direction for answers: what’s legal, not what I can get away with

I am much more interested in what is actually legal than what I can get away with. Things that legally require the tacit permission of the copyright-holder are OK, but should be marked as such. This would be, at least in theory, for sale, though my understanding is that this doesn’t actually make any difference except that it might reduce the chances of WotC turning a blind eye.

Disclaimers for everyone!

Also, to save everyone the trouble of writing it: Stack Exchange answers are not, and cannot be, legal advice. Most people answering them are not lawyers, and even those who are, are not dispensing it through this medium. I understand that all answers are being offered under this caveat, and of course would check with a lawyer if this project actually seems to be getting anywhere. I was just curious if anyone had any material they could cite that would suggest things one way or the other. If I get an ironclad “that’s illegal” I’ll have to rethink some things, but it will be very useful to know that now rather than after I’ve done the work.

Answer 1

There is no such a single meaning as 'using' content; it depends on what exactly you do with it - are you making a copy? Are you distributing a copy? Are you creating a derived work? etc.

Copyright law on literary works, including gaming books, mainly refers to the copying and/or redistributing the actual textual content. It does not apply in any way if you only reference it without copying it. (There are additional issues with protecting game rules&concepts from one-to-one reimplementations, but it's a different topic)

If you are quoting verbatim some parts of actual WotC content, then the legality of it depends on the exact circumstances - it may or may not be treated as fair use depending on the extent of the quote and it's purpose; however, including any non-trivial amount of quotes in your own competing product most likely would not be fair use and thus illegal without a permission or licence (such as the OGL) from the original author.

The extent of the references also matter - for example, if the vast majority of your work consists of such references, then it could be considered a derived work, not an original one.

Trademark law is an entirely different thing, and it does apply if you only reference the product. However, unlike copyright laws, trademark laws don't really require permission from the owner to use the trademarked words as such, but require you to ensure that there isn't a confusion, i.e., that you aren't misrepresenting your product as falsely related to the trademarked product. In that regard, you'd be required to (a) mark the trademarked term as owned by WotC, and (b) make it clear that these aren't your trademarks, and not use them in your branding/advertising/etc.

Answer 2

If you are using the OGL then no, you cannot do this without specific permission from the product publisher.

Section 1 (e) of the OGL automatically protects product names (i.e. book titles) as Product Identity.

(e) "Product Identity" means product and product line names, logos and identifying marks including trade dress; artifacts, creatures, characters, stories, storylines, plots, thematic elements, dialogue, incidents, language, artwork, symbols, designs, depictions, likenesses, formats, poses, concepts, themes and graphic, photographic and other visual or audio representations; names and descriptions of characters, spells, enchantments, personalities, teams, personas, likenesses and special abilities; places, locations, environments, creatures, equipment, magical or supernatural abilities or effects, logos, symbols, or graphic designs; and any other trademark or registered trademark clearly identified as Product identity by the owner of the Product Identity, and which specifically excludes the Open Game Content;

(emphasis mine)

This effectively prevents you from referencing the title of any other product without explicit permission, other than where required to do so within your own Section 15.

While many publishers may be happy for you to reference their product and grant permission when asked, others may not be or may require you to enter in a separate license agreement with themselves. This is the very same clause that prevents you from claiming any form of compatibility with D&D unless also using the d20 license, so we can pretty much infer it is there by design for this very purpose.

If you are not using the OGL, then you could do this. However, without the safe harbor of the OGL you may well be infringing on other copyright or trademarked terms. While copyright cannot be claimed on game mechanics themselves, there is the possibility of you being taken to court over making a derivative work or some other copyright or trademark matter. While you may possibly win the case, I would strongly advise getting professional legal advice before attempting so as well as bearing in mind that any publishers claiming infringment may well be able to afford much more than you can on legal fees.

(Note I would normally have appended this as a comment to the existing PI answer, but do not have enough reputation on the site yet to do so :) )

Answer 3

From the "Legal Information" section of the 3.5 SRD. (Emphasis mine)

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...

As you've already dropped in the disclaimer of "not legal advice," I'll follow that up with saying as I read the bold text this means no, we cannot reference reserved content without the express permission of the copyright holder. Doing that violates the terms of the OGL. Then, not only could the copyright holder come at you with a vested interest but so could WotC (for 'misusing' their license).

Personally (OGL or not), I'd try contacting the copyright holder: They might be willing to work with you on wording and "spoilers" so that their work wouldn't be compromised, in their eyes. Otherwise you might try referencing even less than what's currently present in your question. Blog about supplements you use with the campaign setting (granting favorable/unfavorable reviews) instead. It might not be as precise as you would like your adventure/rulebook/setting/whichever to be, but at least aim to be as close to de minimis as possible.