Is it legal to design and publish a game with D&D's ability scores?

Question

If I were to design an RPG that had Str/Dex/Con/etc... would it be legal to publish it? I know that games like Pathfinder and Dungeon World got away with it, but I'm not sure how or why.

Looking at D&D 5e's recent OGL, I have found that the following items are considered Intellectual Property and are not Open content:

Dungeons & Dragons, D&D, Player’s Handbook, Dungeon Master, Monster Manual, d20 System, Wizards of the Coast, d20 (when used as a trademark), Forgotten Realms, Faerûn, proper names (including those used in the names of spells or items), places, Underdark, Red Wizard of Thay, the City of Union, Heroic Domains of Ysgard, EverChanging Chaos of Limbo, Windswept Depths of Pandemonium, Infinite Layers of the Abyss, Tarterian Depths of Carceri, Gray Waste of Hades, Bleak Eternity of Gehenna, Nine Hells of Baator, Infernal Battlefield of Acheron, Clockwork Nirvana of Mechanus, Peaceable Kingdoms of Arcadia, Seven Mounting Heavens of Celestia, Twin Paradises of Bytopia, Blessed Fields of Elysium, Wilderness of the Beastlands, Olympian Glades of Arborea, Concordant Domain of the Outlands, Sigil, Lady of Pain, Book of Exalted Deeds, Book of Vile Darkness, beholder, gauth, carrion crawler, tanar’ri, baatezu, displacer beast, githyanki, githzerai, mind flayer, illithid, umber hulk, yuan-ti.

All of the rest of the SRD5 is Open Game Content as described in Section 1(d) of the License.

Since it doesn't list mention any of its ability scores, it seems that it's fine. Except that I'm not sure if these ability scores count as a component of the d20 system (which, again, is not Open Content).

So can I do this? Why or why not?

Answer 1

Short version: Str/Con/Dex/Int/Wis/Cha appears to be available for use, but tread carefully.

---

This is a very gray area, and any advice you get isn't worth much, unless it's from your lawyer.

If you copy all of D&D's design, your work clearly infringes on their copyright, and they can easily succeed in a lawsuit against you. If you copy none of their design, your work doesn't infringe on their copyright at all.

The problem comes when you copy some of their design. If your work is substantially similar to theirs, it's considered infringement. But how similar does it have to be? Courts have come up with many different answers on this, using many different tests.

Short of talking to a lawyer (which is generally a good idea when worrying about legal issues), it might be helpful to look at what other people have done. As you noted in your question, both Pathfinder and Dungeon World have re-used the Str/Con/Dex/Int/Wis/Cha concepts from D&D. This suggests three possibilities:

1. This may be such a small thing to copy that it's not infringement.
2. It may be infringement, but the copyright owner hasn't bothered to take action.
3. The owner of D&D may have licensed the concept for use. (They have licensed some things.)

Sure enough, Str/Con/Dex/Int/Wis/Cha is part of the d20 System, a set of content published by the owner of D&D under a particular license for others to use. Pathfinder explicitly references this license as the source of their authority to use this content.

But if you're going to use the same license, be very careful to read exactly what is and is not covered. Many licenses allow you to use certain content, but only in certain ways. Many require you to license your derivative work according to the same rules as the original work.

Looking at what other people have done only gets you so far. In the end, if you're not sure whether your work is legal, talk to a lawyer.

Answer 2

Yes

I am not a lawyer and anyone can sue anyone for anything. However...

Many RPGs, not under license from D&D using the OGL or otherwise, have used identically named ability scores since 1975 with no legal problems; see this great breakdown of key ability scores in major fantasy games through 1983. Some have more, some have less, most use at least 5 of the "D&D 6" with identical names.

These terms are not trademarked (you can search the US trademark database yourself here). Game rules may not be copyrighted, and while their means of expression can be, the burden for that is way more than a specific word or short list of words (like if you're cloning large parts of their rules text in general). And Hasbro themselves lost a court battle trying to prevent publishing of add-ons for their Monopoly game, that by necessity reference parts of the game and were labeled "compatible with Monopoly." (It didn't even get to trial, the judge dismissed their prelim injunction and restraining order with a "seems unlikely that further factual development will lead to a different outcome." The case settled immediately.)

So while you could use the OGL to be able to do this (as e.g. Pathfinder does), it is clear from the history and scope of the RPG industry that if you are just using the same names for your ability scores without said license (as e.g. Dungeon World does), you have absolutely nothing to worry about.

Answer 3

Assuming that this is written with U.S. law in mind, game rules cannot be copyrighted, at all; neither can words. Thus, you can certainly use the same names for ability scores without infringing on copyright.

From the U.S. Copyright Office circular on games:

Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form.

Material prepared in connection with a game may be subject to copyright if it contains a sufficient amount of literary or pictorial expression. For example, the text matter describing the rules of the game or the pictorial matter appearing on the gameboard or container may be registrable.

From the U.S. Copyright Office circular on copyright words and titles:

Copyright law does not protect names, titles, or short phrases or expressions. Even if a name, title, or short phrase is novel or distinctive or lends itself to a play on words, it cannot be protected by copyright. The U.S. Copyright Office cannot register claims to exclusive rights in brief combinations of words such as:

• Names of products or services
• Names of businesses, organizations, or groups (including the names of performing groups)
• Pseudonyms of individuals (including pen or stage names)
• Titles of works
• Catchwords, catchphrases, mottoes, slogans, or short advertising expressions
• Listings of ingredients, as in recipes, labels, or formulas. When a recipe or formula is accompanied by an explanation or directions, the text directions may be copyrightable, but the recipe or formula itself remains uncopyrightable.

Further, trademark cannot forbid the use of terminology to describe things, and certainly not forbid the use of generic terms such as “strength” and “dexterity” to describe strength and dexterity.

From Iowa State’s Trademark Legal Basics:

The test for consumer confusion is to assure that the consumer can be confident that when buying a product or service bearing a particular trademark the product or service expected is actually delivered.

Even if something could be a trademark, you can still use it as long as you don’t use it to confuse consumers about what game you are. But generic terms of description, which is what these ability score names are, couldn’t be trademarked for what they describe in any case.

The ability score terminology hasn’t been patented, so far as I know, and the deadline for patenting their use in a game has long passed, so it doesn’t apply even if it could, which is questionable.

Of course, in a litigious society you can be sued, even if what you’re doing is both legal and right. But the question was “is it legal” and “can I do this”. There is no gray area here, in the United States. Using the same term for abilities to describe those abilities is definitely legal; you can definitely do it.

Answer 4

Here is what WOTC's site has to say about abilities being open content:

The System Reference Document is a comprehensive toolbox consisting of rules, races, classes, feats, skills, various systems, spells, magic items, and monsters compatible with the d20 System version of Dungeons & Dragons and various other roleplaying games from Wizards of the Coast. You may consider this material Open Game Content under the Open Game License, and may use, modify, and distribute it.

On this page, find this link:

Basics and Ability Scores (57k RTF)

Answer 5

Firstly, take any advice from me or anyone else who isn't a lawyer with a grain of salt. In my knowledge, it is completely legal to create, use, and manufacture an RPG or other product with the same statistics as the traditional Dungeons and Dragons ones. That being said, if the product you create too closely resembles another copyrighted product, it can become infringement, and copying the character statistics certainly contributes to this, and can land you in trouble if you copy the rest of Dungeons and Dragons rules too closely. Thus, it may be advantageous for you to change some of the stat names, for example changing dexterity to agility or altering constitution to stamina.

In short, it's entirely legal, but you walk a tight rope.

Answer 6

Sure, if you want to include the OGL!

Well, yes, you can definitely because it's under OGL. Actually re-reading the OGL, I noticed that you would have to staple it to your finished product, but you're not actually compelled to license anything of your own under the OGL.

But do you have to?

Game mechanics in and of themselves are not typically covered under intellectual property laws, but the text of games themselves are. Similarly, there are a lot of branding things that WoTC considers to be theirs: if you look at the things explicitly held as their property in the OGL and extrapolate from there you can pretty easily stumble onto their toes.

The Str/Con/Dex/Int/Wis/Cha system may be so iconic that it is difficult to defend, though you could always use renamed versions to be strictly in the clear; Brawn/Toughness/Speed/Smarts/Prudence/Looks isn't quite as catchy, but definitely won't get you sued and a lot of people would get the wink-wink nudge-nudge true meaning.

That said, it's small enough that either it is unlikely to be considered infringement worthy of action in a court of law, or that it is something that they are unlikely to deal with.

The usual advice I give, however, is that if you're not certain, avoid the issue. A block of six stats that govern similar things is definitely in the clear, copying D&D's is a very light shade of grey but when you're dealing with Hasbro lawyers it may be in your best interest to stay pretty conservative.

As a general rule, and, again, not being a lawyer or giving legal advice, you'd probably only see this matter come up if there were some other point of concern with regards to infringement. For instance, if your experience point tables looked exactly like WoTC published work, you had a level system that was oddly similar, and you kept including elements that looked like they had been taken verbatim.

I'm not sure entirely what the guiding light for this matter is: I know that there has been at least one case (and I've lost my copyright casebook or I'd look up what it was), where some people wrote a book for one company, and then the next year published a very similar book for another company. They'd used the same research, and even though they'd "rewritten" the book, there were found to be substantial similarities between the two and the second book was found to infringe the copyright of the first.

If you're working on a game that pays homage to the six-attribute system and shares the names, I'd say that you probably aren't going to be sued for that alone, but if Hasbro or WoTC decided to make a fuss and sue you, you won't be better off for doing so. On the other hand, there is a chance that the SCDIWC setup is so common that it's become an industry standard or cultural phenomena, and it's undergone sort of a "generic name" effect, like an undefended trademark, but that'd be a stretch to apply to something that would probably be under copyright law.

A Summary

Basically, my advice would be: Don't. It's not that hard to come up with alternate names for the same things, and even if you just do an obvious thesaurus lookup you'll be more protected under copyright law if a claim were to be made.

No argument for fair use exists, because you are actually providing an alternative (though I wouldn't argue that it's a zero-sum market) to WoTC's product, and you could theoretically be compelled to license something like that from them.

The content being under OGL means nothing unless you're willing to adhere to the OGL yourself; this may not be something you're opposed to.

Ultimately, if copyright law were sane, this is probably something that would fall in the unenforceable category of "too simple" or simply "not copyright worthy", but there's no clause like that for copyrights like there is for patents (or, rather, one could say that the interpretation of copyright law has gone that way, since originally copyright law, at least within the US, was not intended to cover everything but people kinda decided that it should, but since it often covers works with purely subjective merit everything is assumed to be worthy of receiving copyright protection unless it can be proven otherwise, like archival photographs of public domain works).

TL;DR: If you're really dead set on keeping the "Standard Six", you might want to (but don't necessarily have to) include the OGL. I'd rename it just to be safe and to avoid the lawyerese nightmare that is the OGL.

Answer 7

Yes.

It's perfectly legal to do so. It's also perfectly legal for WotC to sue you in civil court for doing so and seek (hugely excessive) damages.

Your ability to win that lawsuit depends to what degree you can argue that your product is not substantially based on WotC's product. Currently, especially in America(United States of), courts have taken wildly different stances on what constitutes a substantial basis when referring to entertainment products. The laws in question were largely intended to protect the results of research from simple direct-copying tactics amongst large competing firms - they are somewhat less granular for intellectual property and suffer additionally from the ongoing war between large distribution corporations and emerging technologies, which has caused the relevant laws to become both more confusing and more stretched in general.

The general attitude of avoiding potential legal conflict amongst the rpg-book-producing crowd, as well as the tendency for the larger (although larger is a relative term) rpg production/design houses to both threaten and instigate legal conflict makes the situation somewhat more fraught - courts do take into account the extant situation, and if you cannot produce examples of similar products utilizing that terminology without license, you are more likely to be considered a plagiarist and fined.

Overall, using common-english words to describe statistics of a person is unlikely to be arguable in court as a substantive use of WotC's Dungeons and Dragons. Nonetheless, most authors will use synonyms purely to avoid even getting embroiled in that situation.