Part 1 | Part 2 | Part 3 | Part 3.5 | FAQ/FRI

I received an email from Wizards of the Coast (“WotC”) demanding that I take down my one-stop stat blocks. Unsurprisingly, the email didn’t provide an actual argument, but it raises some important issues as to what’s copyrightable and what isn’t. WotC has a history of taking advantage of gamers’ ignorance of contract and intellectual property law and lack of wealth when making similar demands, thus harming the gaming community and industry, so it’s time those issues are addressed. Most of the following arguments apply to any role-playing game produced by any game designer.

This is the first of three blog posts that I’m going to put out as quickly as possible. They’re entitled:

Copyrightability of Stat Blocks Copyrightability of Spell Descriptions The Damage Done to the Gaming Community and Industry by the Otherwise Ineffectual Open Gaming License (OGL)

In case it isn’t clear, WotC does not endorse this post or any work I’ve created. My use of their trademarks is purely to identify the subject of this discussion and should not be taken as an endorsement of my work by WotC. To the extent that there has been any technical infringement of a WotC copyright by this post, such use constitutes commentary on a de minimus amount of their copyrights and is therefore a fair use of those copyrights.

Also note that this post does not constitute legal advice. This addresses WotC’s copyright misuse; it doesn’t, and in fact can’t, address whether any actions of the reader themselves constitute copyright infringement. If the courts find copyright misuse, then the copyrights will be deemed unenforceable retroactively to the point in time when the misuse began (likely 2005 or earlier). If the courts don’t find copyright misuse, then past infringement is still subject to a lawsuit, and this post doesn’t address anyone’s behavior other than WotC’s and my own. Your case rests on your facts. If there’s any concern that you’ve infringed WotC’s copyrights, you’ll need to retain an attorney.

First, Some Sympathy

Most of you aren’t going to base your decisions to publish stat blocks on what I write here. You shouldn’t, because whether a game designer can validly claim copyright infringement of a stat block depends on exactly how you word your stat blocks and spell descriptions. Even if you do so without infringing, it’s still scary and expensive to face a lawsuit. However, I’m willing to take that risk so that we’ll have a definitive answer in the not-so-distant future. I’ve always been supportive of this community and industry. In fact, WotC owes a lot of sales directly from the work I’ve done with organized play and running my convention back in 2010 and 2011. I’ve supported and defended them many times, making their threat a questionable tactic. It’s time to put their demands in the proper light.

Stat blocks are difficult to copyright, and I have yet to see one that is, but before that can be addressed, there are a few legal concepts that must be discussed. Legal terms of art will appear in quotation marks that, in the interests of space, I may or may not define.

Functional v. Creative

Shadow of the Demon Lord is a fantastic game that, in my opinion, has an interesting initiative system. As much as I like it, and as much as we all may think of it as “creative” colloquially speaking, in the context of intellectual property law, it’s not. Because the initiative system a “formula” or “process,” it’s considered “functional,” protectable in theory only under patent law. The initiative system would almost certainly not be eligible for a patent, which means that third parties should feel free to adapt that to any of their games. If it’s the inspiration for doing so, the third party may want to give credit but is not legally required to do so, and should not feel the slightest bit ashamed to incorporate it in those games. No one can own that system, and more importantly, no one should own it. That would be bad for the gaming community in particular and society as a whole.

On the other hand, some material is considered “creative,” meaning that it’s an original idea expressed by the author. To earn a copyright, creative work must not only be original, but it must have a “modicum of creativity” (i.e., a minimum level). A stick figure is creative but not nearly creative enough to rise to the level of copyrightability. That said, the requirement for originality is quite low, and there’s no strict line drawn by the courts. Each case is handled on a case-by-case basis.

Copyright Holders v. the Public Interest

The purpose of copyrights, patents, and trademarks is to serve the general public. The fact that we grant these “limited monopolies” isn’t because the law is rewarding the artists, inventors, and entrepreneurs for a job well done; it’s because by doing so the law serves the public. By placing creators in a position to profit off of their works, limited monopolies provide an incentive for creating those works, assuring the public that they’ll have access to a wealth of art (copyright) and increasingly improving technology (patents), as well as allow them to quickly and reliably identify the products and services of companies they trust (trademark). The important point is that grant of limited monopolies is a mechanism, not a goal; the means to an end. Accordingly, when enforcing the intellectual property monopoly power comes in conflict with the public good, the public good always wins.

“Sweat of the Brow”

In 1991, the Supreme Court shot down the notion that a collection of uncopyrightable material somehow transforms into a copyrighted work. For example, if an author compiles a spreadsheet of the mass, size, and distance of various planets and stars in the known universe, that collection isn’t copyrightable because none of those individual pieces of data are copyrightable. They can’t be copyrighted because they’re not creative; they didn’t originate from the author. The author of the spreadsheet can’t report Jupiter’s mass as something it isn’t. Doing so would render the spreadsheet factually inaccurate and thus useless. Copyright is about choosing one thing over many other options. Without having the opportunity to choose anything else, one can’t say that it was original, copyrightable work. Choice is always key.

Also of importance is the fact that those data are independent of each other. If the spreadsheet left out the mass of Jupiter, a reader would still know Jupiter’s size and distance from Earth. While nice to know, Jupiter’s mass isn’t required to understand its size and distance from Earth. Similarly, a phone book isn’t copyrightable because phone numbers are also independent of each other. A reader doesn’t need to know one person’s phone number to properly interpret another person’s phone number. Each phone number stands on its own.

This may seem unfair to someone who’s worked hard to collect and organize a database or phone book, but as previously stated, the purpose of copyright is to serve the public, not to reward the author. The reward is just a means to achieve that end. So, no matter how much work it took to create a collection, if each individual unit of the collection is not copyrightable and independent from the others, then the collection is not copyrightable.

Telling a Story

You may have detected a tension. Collections of uncopyrightable elements are not copyrightable. However, aren’t copyrightable sentences merely a collection of uncopyrightable single words? If the sentence isn’t copyrightable, then aren’t paragraphs merely a collection of uncopyrightable sentences? Aren’t single musical notes uncopyrightable, but stringing them together is a copyrightable piece of music? What’s the difference between these scenarios and that of phone numbers or stat blocks?

For a stat block to be copyrightable, it must include something beyond mere game mechanics, such as an expression of character backstory, biology, culture, ecology, or personality, and that expression must not come from mythology or literature, because that material is in the “public domain” (i.e., freely useable by everyone). So why isn’t the collection of stat blocks copyrightable (e.g., the stat blocks of the Monster Manual as a whole) just like a collection of words or musical notes? Because, for the most part, the stat blocks don’t tell a collective story. Placing a series of words together can form a coherent thought, so a written sentence is a “tangible expression” of an idea. The same can be said with a song, which represents a coherent musical theme. On the other hand, stat blocks remain independent of one another even if they appear within the same book. Just like one person’s phone number in a phone book tells the reader nothing about someone else’s phone number in that same book, a dragon’s stat block tells the reader nothing about a vampire’s stat block. If the reader truly couldn’t use the dragon’s stat block without also referencing the vampire’s stat block (and vice versa), then each of those stat blocks would be analogous to words forming a complete sentence, and the reader would have to perform the copyrightability analysis on both of them at the same time. Instead, WotC’s dragon stat block is self-contained, showing the reader exactly how it fits in the game system, so it’s copyrightability should be addressed individually without respect to any other stat block. Each stat block stands on its own.

Game Rules

Game rules aren’t copyrightable, so in the context of the prior discussion, game rules can be considered “facts.” On the other hand, the specific expression of a game rule can be copyrighted if it is sufficiently creative. There’s no clear test for whether a work is sufficiently creative. For example, it’s not creative to call a spell “Fly” because it allows a character to fly, but the paragraphs representing a complex discussion of flying rules could be copyrighted. Moreover, if there’s a discussion of how a spellcaster must act in order to cast the spell (e.g., somatic gestures, specific words that must be said aloud), or in how the magic manifests itself in sight or sound (e.g., “magic runes appear in the air before you”), then those elements of flavorful description (a.k.a., fluff) could be deemed creative as specifically expressed. If copied word for word, or even if it’s not exact but is “substantially similar,” there could be copyright infringement of the specific expression (provided the statements aren’t so simple as to prevent any other reasonable means to express the same idea).

Single Words

Single words aren’t copyrightable, as no single word, however fanciful (i.e., bizarre, made up), rises to the minimum level of creativity necessary to warrant protection. If a single word were copyrightable, then it would be removed from the native language. Once each word was copyrighted, no one would be permitted to say anything to anyone. This is why answering the question “Is it creative?” is insufficient. One must then ask, “But is it creative enough?”

Trademark protects single words, but that’s reasonable because the nature of the protection is different. Trademark doesn’t forbid using those words, but specifically from using them in a way that confuses the public as to the source of goods and services. For example, “Dungeons & Dragons” is a registered trademark of WotC. Writing out that phrase here isn’t infringement. Besides this post being commentary falling under fair use (q.v.), it’s clear from context that its use isn’t meant to suggest that WotC is endorsing this post. If the viewer, listener, or reader is fully aware that WotC doesn’t endorse a use of its trademark, then a third party may reference “Dungeons & Dragons” even for commercial purposes (see, e.g., beer commercials that ridicule their competitors). Printing the standard disclaimer helps prevent such confusion (i.e., “Dungeons & Dragons is a registered trademark of Wizards of the Coast.”). If using their artistic logos, it’s much harder to claim the public wouldn’t be confused, so they shouldn’t be used on third-party work without permission.

Fantasy Themes

“Fantasy themes” (defined here as characters, creatures, stories, or settings that appear in literature, folklore, or mythology) aren’t copyrightable. Some of them are so old that they predate the concept of copyright, but those that don’t may have expired. So, the expression of a dwarf that mirrors the dwarves of Norse mythology isn’t copyrightable. It’s so old that it must be in the public domain. In copyright terms, the traits and abilities of mythological dwarves are sometimes called “stock,” so even if an author gives one of those basic powers to an elf instead, that’s still not creative enough to say that the author has created its own type of elf. Stock characters aren’t protectable by copyright, nor are stock character abilities (e.g., flying), but even non-stock abilities aren’t protectable if they represent how a game is played.

“Even if the . . . abilities were not stock, they are still not expressive because they are essentially rules of game play. The . . . ability to strike opponents from a longer distance than other characters. is no more expressive than the ability of a rook in a chess game to take an opposing piece from all the way across the board, as opposed to a pawn that may attack only from the next square. The rook’s ability affects other characters or roles in the game because the attack range increases the queen’s and king’s exposure. But this special ability is neither literary nor artistic. It is an aspect of game play, a subset of the rules that make up the game system.”

Fair Use

This can of worms will not be opened too widely but note that in many cases the infringement of a copyright can be justified. Just like a homicide can be justified as self-defense, infringement of a valid copyright can sometimes be justified because the First Amendment’s Free Speech clause forbids copyright law from suppressing certain statements. Even if WotC is held by a court to have a copyright in a particular stat block, the matter is hardly settled. Depending on the facts of a specific case, it still may be copied, or even published for profit, as a fair use. In fact, it’s almost impossible to make any use whatsoever of, for example, the Forgotten Realms Campaign Setting without technically infringing WotC’s copyright. Once a “dungeon master” (“DM”) makes private notes for a campaign that use information from that book, the DM is technically infringing. It’s quite hard to believe that a court wouldn’t see that as a fair use. That said, relying on fair use is a risky proposition. It 1) admits infringement, and 2) places the burden of proof on you to prove that infringement is justified. As a general matter, don’t be quick to rely on fair use. Always consult an attorney before doing so.

For an more on fair use, here are a couple of posts that represent a good start: The Fair Use Factors and the cautionary tale of Fair Use as an Affirmative Defense.

Copyright Misuse

Copyright misuse is a hard concept. It’s not hard to understand its mechanism, but rather its value. In short, when a copyright holder attempts to expand the scope of its copyright beyond what the law allows, the copyright holder is said to be misusing that copyright, and the alleged infringer can raise copyright misuse as a defense. The reason the defense is important is that it’s usually impossible to know exactly what kind of a world we’d have if the copyright misuse never occurred. The public looks around and says, “Wow, this is a great world we’re living in. All this art, all these computers. It’s great!” Sure, but it could be a lot better, and it can be hard to convince people of that because you can’t point to nonexistent things as evidence. If art were never created, we can’t identify it as missing. The copyright misuse doctrine is one of the ways we make sure that things are better where “better” is hard to define.

For example, for copyrights arising on or after January 1, 1978, if the work was created as part of an employment contract, the copyright lasts for 95 years from first publication or 120 years from creation (whichever is shorter). Let’s say that a copyright is scheduled to expire in 75 years. If the copyright holder offers a license to that copyrighted work for 100 years, that would give them control of the work even after the copyright expired. That’s considered copyright misuse because it effectively extends the life of the copyright beyond the time Congress intended. If someone infringes the copyright, they can raise the defense of copyright misuse even if they aren’t a party to that license. See Lasercomb America, Inc. v. Reynolds, 911 F.2d 970 (4th Cir. 1990).

Copyright misuse can also occur where public data (i.e., material no one owns) is wrapped up within copyrighted material, and the copyright holder essentially takes it hostage. For example, let’s say the owner of copyrighted software licenses it to various governments to collect public real estate data. The public data is thus hidden within the software, and the only way to extract it is to technically infringe the copyright. If the license strictly forbids that extraction of data, the copyright holder has committed copyright misuse by leveraging its copyright to deny access to public domain data. When public material and copyrighted work are inseparable, the copyright holder can’t extend its valid copyright protection to restrict the public material. See Assessment Technologies of WI LLC v. Wiredata, 350 F.3d 640 (7th Cir. 2004).

The Courts of Appeal for the 3rd, 5th, and 9th Circuits have also expressly recognized the doctrine of copyright misuse as a defendant’s defense against a claim of copyright infringement, with the 3rd and 9th Circuits recognizing it as an affirmative cause of action available to a plaintiff.

In the case of stat blocks, if any copyrightable text in the Monster Manual is used to threaten or contract away the public’s ability to use uncopyrightable game mechanics or fantasy themes, then the creator of the copyrightable text is committing copyright misuse. But is there any copyrightable text in a stat block itself?

Stat Blocks

It’s indisputable that stat blocks are at least partly functional. They describe how a creature fits mechanically into the framework of the game system in a way that’s intuitive. If the structure were artistic, it wouldn’t even be readable. By forbidding republication of a stat block, WotC is leveraging their creative work to essentially protect game rules, fantasy themes, and principles of human psychology, effectively extending their copyright to uncopyrightable elements. That’s the definition of copyright misuse.

Stat Block Content

Here’s an example of a stat block of my own creation that shares many similarities with the one appearing in WotC’s Monster Manual.

A cyclops is a one-eyed giant first introduced in the Odyssey (based on prior oral tradition), which was written near the end of the 8th century B.C. The idea of a cyclops is clearly in the public domain, which also explains why WotC hasn’t sued Warner Brothers (among others) for including them in the movie, Wrath of the Titans. Most of the mechanical elements of the stat block – size, creature type (“giant”), alignment (“chaotic neutral”), ability scores, the Poor Depth Perception trait, its high strength but low intelligence – all reflect the nature of this creature as it appears in Greek and Roman mythology. With respect to, for example, the trait Poor Depth Perception, it would be creative to give the cyclops exceptional depth perception, but WotC didn’t do that probably because players want to face the mythological equivalent of a cyclops. That’s one of the reasons WotC is limited in how creative it can be practically speaking; it’s intentionally marketing a game where players can fight with creatures from literature and ancient legend, which are creatures WotC can’t own. Granted, they’ve created some of their own creatures, but frost giants and fire-breathing dragons are the real draw. Even the CR (“challenge rating”), which at first blush appears to be a completely arbitrary choice, roughly reflects the power level expected for a standard cyclops based on its mythological legend, but varying that CR isn’t creative anyway. It’s just a means to allow characters of different levels to face the same creature as provided in the game mechanic.

What does the presence of the action, Rock, say about cyclopes? It says they tend to keep boulders around for throwing at enemies. Besides being an intuitive and logical assumption about a cyclops, that’s also part of the culture presented in the Odyssey, so no one owns that cultural element. The cyclops is also given a greatclub as a weapon, which does bludgeoning damage, but as cyclopes are known as talented weaponsmiths, there’s no weapon that a cyclops could wield that could be considered a creative choice. Cyclopes wield all of them, including exotic ones not commonly used by Greek and Roman soldiers. Moreover, in 5th edition D&D, it wouldn’t even matter. If the cyclops had a longsword, the mechanics of the character wouldn’t differ; the attack expression would remain “+9,” and the damage expression would remain “22 (3d8+9).” The only change would be to the damage type of the weapon (slashing), which would be creatively insignificant, and overwhelmingly mechanical, impacting resistances, immunities, and vulnerabilities of the cyclops’s enemies.

What about synonyms? Is there an acceptable synonym for “neutral”? In this context, neutral describes where a creature falls along the two philosophical axes of good v. evil and lawful v. chaotic. Sometimes it means (more or less), “switching between the two extremes as circumstances dictate,” and at other times means, “having no regard for either of the two extremes.” There’s probably not a single word that can generically express either term, but even if there were, WotC wouldn’t own it. Any other interpretation of copyright law would render copyright completely unworkable. “Hit points” as a means to measure health is a bit stronger case for WotC. The term hit points is, to borrow from trademark law, suggestive of health rather than a direct identifier of health. By itself, “hit points” may not be creative enough to justify a copyright, but it is creative philosophically speaking. Similarly, armor class is suggestive because it’s actually a poor descriptor for what it represents. Armor class represents one’s ability to avoid harm; however, for many characters, Dexterity in particular, and other abilities on occasion, are more significant than their armor for determining their armor class. Some characters don’t even wear armor yet manage to boost their armor class noticeably even without magic. That makes “armor class” creative. However, despite these potential arguments in WotC’s favor, the abbreviations “HPs” and “AC” are not protectable, nor are more direct identifiers like “initiative,” “Strength,” etc. This explains why no other (non-OGL) game systems use “hit points,” but many use “Strength,” and some use “HP” for “health points.”

As to alignment, what if a third-party were required to use “nonaligned” (assuming that doesn’t violate WotC’s copyright in 4th edition for “unaligned”)? WotC uses neutral and unaligned, and the third-party uses nonaligned. What does the next person use? Eventually, the language runs out of words to describe the idea. The use of a single word or two to accurately express a complicated concept cannot fairly be deemed copyright infringement. Instead, copyright focuses on that “expression” of the complicated concept. When one person writes a few sentences explaining the concept of neutrality, then the specific way that paragraph is written may be protectable. Simply saying “neutral” isn’t. While personality is a component of copyrightable subject matter, and “chaotic neutral” certainly describes part of a character’s personality, it isn’t nearly enough to represent a meaningful personality. Too many characters in both the real and fantasy worlds are “chaotic neutral,” and the character’s alignment tells the reader nothing about the character’s ambitions, background, or even personality to any appreciable degree. “Chaotic neutral” in isolation is just a game mechanic, and in the case of a cyclops, it’s exactly as they’ve been portrayed for millennia. However, even if WotC had chosen to make them lawful good, there are far too many other lawful good characters to assume that a mere change of alignment will make a cyclops copyrightable. It’s simply not creative enough.

Stat Block Structure

The structure of a stat block is functional, based more on readability than artistry. WotC didn’t have to choose blood red as the color of their highlighted text. In the interests of staying as far from infringement as possible, the one-stop stat blocks use purple, though it wasn’t necessary to do so. The fact that some text is highlighted is similar to what WotC did, but that’s also a matter of function (i.e., readability), not artistry. WotC doesn’t have a claim to functional structure based on psychological principles governing human perception.

Nevertheless, there are several means to present gaming information in a format that’s readable, so does the law require third parties choose another way? The fact that every game designer’s goal is to make the information readable, and thus serves a functional purpose, suggests not. However, the argument is even stronger when considering how limited those means are, as well as how the notion of “substantial similarity” affects the analysis. Looking at stat blocks across game systems, all of them present the same mechanical information more or less, and every conceivable combination of presenting that information has been used (multiple times, in fact, without infringement lawsuits). The claim that every conceivable combination has been used rests on the fact that slight variations of those formats would be deemed “substantially similar,” and thus still infringing the stat blocks as presented in existing systems. There’s nothing new to create, which means that granting a copyright in stat block design would prevent any new game system from being marketable.

Unsurprisingly, I’m unaware of a single instance when any game designer issued a cease and desist letter based on the format of a stat block. This is important in light of the fact that there are so many well-known game designers that have published similar stat blocks for decades. If WotC’s argument becomes, “But you can’t use that particular stat block design with our specific game rule system,” then they’re using the uncopyrightable game system to pile on to a format (copyrightable or not) and claim copyright in the collection, which as discussed, they can’t do. Note, however, that WotC didn’t appear to be claiming stat block structure in their takedown request. In their email, they wrote (in pertinent part):

Wizards realizes that the Dungeons & Dragons books are more than just “rules” or “instructions.” The text is highly descriptive, and as such, is inherently copyrightable. Wizards requests that you remove your stat blocks, or create your own material under the Open Game License.

That is, they focused on the text’s “highly descriptive” nature (without justification, of course). They never mentioned the stat block structure. Their omission doesn’t prove one way or the other whether they can copyright that structure, but it suggests they know they can’t. If they felt they could protect the structure as well, they probably would have included that in order to make as strong a demand as possible.

Are we out of the Woods?

This isn’t to say that it’s impossible to create stat blocks that are protectable under copyright. A creative (and thus largely unreadable) stat block could be protectable. Also, sufficiently complex content could express a backstory, biology, culture, ecology, personality, or other protectable aspect of the creature or creature type that deviates from established literature or mythology. For example, frost giants and dark elves, as species, aren’t copyrightable; their existence in Norse mythology precedes the concept of copyright itself. Let’s say a game designer writes a stat block for a frost giant that includes the following characteristic: “Due to their allegiance with dark elves, when within 60’ of a dark elf, the frost giant is immune to fear effects.” This implies something beyond the mechanics of the game; to-wit: it says that, in the game world, the dark elves and the frost giants have formed some sort of pact. By itself, this shouldn’t be enough to rise to the level of copyright protection, and it’s probable that this characteristic exists for purely mechanical reasons, but at least it’s a start towards providing enough information about the culture of frost giants that has no apparent basis in mythology or literature.

Instead, let’s say a game designer places this characteristic in a vampire stat block: “If you sing to a vampire, it must follow any commands embedded in the lyrics.” Nothing in mythology or literature suggests that this is a characteristic of vampires (or any creature of which I’m aware), so that’s an original addition to the ecology of vampires. Yet again, by itself this may not be enough to warrant protection, but at least in theory it could be if accompanied by other cultural elements that collectively become copyrightable. Things get a little more complex with this characteristic: “If you say a vampire’s secret name, it’s banished to another plane.” As before, nothing in history or literature suggests this would work on vampires, but mythology states it would on demons/devils. Exactly how original of a concept is that then? It was borrowed from a concept applicable to a different legendary creature, so it wasn’t particularly creative, but the standard for copyrightable creativity is low. It’s a greyer area because it’s a stock ability, but it is an original addition to the vampire as a species. That said, as mentioned above, courts suggest this isn’t enough to warrant protection.

In summary, stat blocks potentially could be copyrightable, but they would have to contain content that very few (if any) contain. However, the second article discusses the difficulties of complex stat blocks.

Trait and Attack Titles

Single words aren’t copyrightable, but a group of words (i.e., a long sentence or paragraph) are. Exactly when does a string of words tell a story that rises to the level of copyrightability? There’s no hard and fast rule, but it’s clear that even two or three words wouldn’t do it. The less words that are used, the more difficult it is for those words to rise to a level of creativity sufficient for copyright. Any other approach would have absurd results. Trait and attack titles are a collection of just a few words, so they provide good examples as to why an author can’t receive a copyright in only a few words.

Look at the ghost stat block on page 147 of the Monster Manual. It includes a trait, Horrible Visage, which provides that merely looking at the ghost will frighten a character. WotC can’t own an idea, but assume for the moment that “Horrible Visage” is a copyrightable expression of that idea. If so, then one would have to rename the trait when reproducing the stat block. Pulling out the thesaurus, one could settle with Horrific Appearance, which is an apt title for the trait. Unfortunately, on page 179, the sea hag has a similar trait called, Horrific Appearance, disqualifying that for use. Combining the two (i.e., either “Horrifying Appearance” or “Horrific Visage”), would violate both copyrights, as both options are substantially similar to the two as they appear in the Monster Manual. By adding this trait to just a couple more monsters, WotC could copyright every combination of synonyms in English to prevent anyone from ever providing a title for this trait for any creature. This is why these titles absolutely cannot be copyrighted. There must remain a way for the public to title this trait.

Clearly, these titles, by themselves, most certainly do not justify copyright, nor should they. Combined with the descriptive content of the trait, the combination could be copyrightable, but as discussed above and as will be discussed in future posts, where the descriptive content is purely mechanical, no copyright will exist even with the combination.

Now Are We out of the Woods?

Again, not quite. Things get just a bit more complicated when the stat blocks in question contain spells and spell-like abilities. However, spell descriptions will be the subject of the next post in this series, so those stat blocks will be addressed at that time.

The Bottom Line

If stat blocks don’t go beyond the traditional description of the traits of a mythological creature, or how those traits are expressed properly within the context of 5th edition mechanics, then the game designers have no right, nor should they, to forbid them from being republished by a third party. Drawing that line can be difficult, but even if there’s an arbitrary choice being made in a stat block, it still may be safe to republish, as that choice must represent a modicum of creativity to warrant protection. A stick figure is creative in nature and thus copyrightable subject matter, but most of them aren’t creative enough in practice to warrant a copyright. Some are. For the vast majority of stat blocks, the analysis is easy, and you should be able to republish them. Just keep in mind that large companies are better able to finance a lawsuit than you are.

What’s Next?

The next post will address the copyrightability of spell descriptions, and then the third will expose the true nature of the Open Gaming License.