Monday, May 25, 2009

About Branding and Printing - Notes About Three Publishers

(rampant speculation ahoy!)

I received GS1 Sanctum of the Stone Giant Lord and F1 The Fane of Poisoned Prophecies in the mail today. I haven't had a chance to read through them thoroughly, and this should in no way be considered a review of their contents or game worthiness. Rather, I am going to speak to their branding and how they are printed.


Sanctum of the Stone Giant Lord by RC Pinnell (aka Thorkhammer in various places) is not done using the OGL and brands itself as "Advanced Fantasy Adventure." It's obviously intended to be a continuation of the G1-2-3 series, and was previously labeled G4 instead of GS1 (back when it was an ad-hoc off-the-home-printer offering rather than a Lulu pay project). The stats inside are pure AD&D 1e, down to spell lists, magic items, etc. No euphemisms here.

One thing I will say is that having it available on Lulu is probably a great detriment to the product. It is only 12 pages, plus cover, and the cover isn't even in color. The dungeon map is on the back cover (Lulu doesn't print on the inside of the cover), which I think would negatively impact its actual-play usability (I know I stand up a lot when running games and pick up my adventure notes when I do...). Yes, the back cover is the classic blue shaded dungeon map, but surely it would make zero difference if the thing was not in color.

For this he's charging $7.05 (plus shipping which usually isn't too kind on Lulu). It's not a ripoff or anything since product details are plainly given and so any buyer makes an informed decision before laying out his money, but I will guess that he could have printed this product locally and made it available for that same $7.05 including (domestic) postage, and still be making the same money per copy as he is now. All it would take is a small upfront investment to print out a number of these (not a huge investment for a product of this size and he's active enough in the community that I'd bet a toe that he would have recouped his investment almost instantaneously upon release) in advance, if not completely sold out of his print run - note how the 20 bundles of this and The Fane sold out in just a few hours.

(And since writing this - I had the foresight to do some fact checking before posting what I'd written this morning - I have discovered that the copies offered as part of the package deal were not produced by Lulu. I was wondering how they could offer both at that insane price considering Lulu's base price... and the answer... they didn't, even though it looks like they used the same formatting that Lulu requires. Now the product is still up on Lulu so this isn't - yet? - the new way the Sanctum is being produced, but it gives hope that more people are at least investigating whether other venues than Lulu will work for them.)

Guy Fullerton's The Fane of the Poisoned Prophecy is an interesting case. It also does not use the OGL, but it does claim compatibility by name with "1st Edition AD&D" (and "1st Edition Advanced Dungeons and Dragons"). Within, he uses lots of spells by name, and uses monsters certainly unique to AD&D 1e with full statblocks in encounters. This even has a TSR-like cover design. Pregenerated characters are fully detailed within as well. It's a fairly high-profile release for our scene, being available at a number of online vendors and Guy is making an effort to get in-store distribution.

The printing is totally pro, with a color cover, (black and white) maps on the inside covers, and artwork liberally scattered throughout. It retails for $11.99, so Guy should making enough to pay his artists, make it worth the while of his distributors to carry the product, and presumably keep a few pennies for himself at that price.

Then we have the case of Brave Halfling Publishing. They've recently decided that they'd print their new products themselves instead of going through Lulu and have an ambitious release schedule planned. One of their future projects is a Holmes clone. They announced a "Name That Game" contest all over the relevant portions of the net, featuring this Kevin Mayle piece as the announced cover. Look familiar?

And here is where I believe our actions are not under the radar, that Certain People are aware of us (even beyond facts like several blogs of common interest are linked off of Mike Mearls' blog): In a short period of time (I can't remember whether it was within "a few hours" or "a few days") all of the publicity for the Holmes game had the artwork (and the Holmes name, replaced with "a 1977 basic rpg") scrubbed off of it. I don't know, but have the impression, that it was because BHP was notified that such close cover art, and I guess the name, crossed the line. The announcements are still up, the game is still planned, but that artwork seems to no longer be associated with the project.

The Sanctum's "module code" used to be G4, but is now GS1 (see here, where the author states "Simply put, the G4, which I presume you purchased, was replaced (for legal reasons) by the GS1.").

So assuming are we being watched (or perhaps it's better to say, "Certain trademark holders are indeed aware of our activities"), if these changes imply that certain details about certain projects did indeed cross a line, does that mean that other things that have been released and publicized and talked about in the exact same places and by much the same manner are indeed deemed OK and have not crossed a line?

I realize none of this has been legally tested and we're all operating under goodwill here. To make my position clear: I do not want to challenge Wizards' ownership of any trademarked or copywritten items with my releases and don't suggest anyone else do that either, but at the same time I would want us all to go as far as possible to plainly and without euphemism communicate what it is that we are doing without challenging them. As these releases show, the OGL is a tool but is obviously not the only tool to accomplish this, and if that's established then "What is the best way?" becomes a fair question. Realizing, of course, that most on this side of the question are not going to be able to afford a lawyer, and even if one was consulted, the "safe" answers could possibly be very different from the "legally accurate" answers anyway.

Argh.

The reason I talk about all of this is not only do I have a personal interest in printing and branding methods, but a lot of us are putting stuff up for sale in various places and by various means. I don't think there should be a "backroom" where publishers have their own secret club or worse yet each publisher hoarding their knowledge. And we shouldn't all be fumbling around in the dark, either. We should talk about these things out in the open, all benefiting from each others' experiences and methods. If we're doing something wrong, let's talk about it instead of trying to bury it. If we run into a hurdle, we should be open about it so the next guy doesn't stumble over the same darn thing. If somebody is doing something right, let them share and let the competition for the "Old School Dollar" be based on effort and content, not hidden procedures and secret formulas for success. We're rebuilding and supporting and celebrating our favorite game(s), and we have the opportunity to do it right this time.

13 comments:

  1. Excellent and much-needed post.

    I 100% agree that we old-schooler writers need to openly, honestly, and in a friendly manner share our knowledge and experiences with each other. We need to avoid what I was subjected to by a certain d20 publisher who used to publish old-school flavored products. On his forum I noted what his company had done in its modules, and he essentially told me that he was a Special Sparkly Snowflake and that I needed to consult a lawyer rather than assume that it was OK to do the same sort of thing as he was doing in his modules. Good grief.

    I think (but am not sure) that Thorkhammer changed the G4 to GS1 because of mere nervousness. He started a thread on it in dragonsfoot. I strongly doubt that he was contacted by WotC.

    I'm confident that the G4 designation is perfectly safe. Matt Finch, for example, wrote a d20 module entitled S1: The Goblin Fair. As we all know, S1 was used by TSR for its Tomb of Horrors module.

    Same with BHP. There is a thread (on Fin's OD&D boards, I think) on which a poster said he thought the cover image was too close to be legally comfortable, and BHP said they would change it. Again, I don't think BHP was ever contacted by WotC.

    Besides, look at the back cover of Fight On! #4. That is an almost EXACT copy of Erol Otus's drawing of Cthulhu in the AD&D Deities & Demigods Cyclopedia. Thus, I'm confident that BHP's original cover art for the Holmes clone would be safe.

    To me, Guy Fullerton is thus far the hero of this aspect of old-school publishing. His boldness has cleared the way for all the rest of us to stop publishing using winky-winks.

    One last point: I originally considered publishing CARCOSA through lulu. It is MUCH cheaper to publish it from home.

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  2. I see my stuff (er ... my one thing ... so far) as not really breaking any new ground. It just builds on and/or combines things that other publishers did before me: Use a particular sort of trade dress, indicate compatibility with AD&D by name (with appropriate trademark credit, of course), skip the OGL & GLS entirely, and do it in a for-profit product.

    In terms of publishing without the OGL or GSL, I took a lot of my inspiration from Kenzer & Company's Kindom of Kalamar setting for 4e.

    Putting the publishing pieces together isn't too hard, really. A couple hours of phone calls and emails led me to a local print house who is willing to churn out about 100 copies of a 24 page "booklet" (their term for 8.5 x 11 saddle stitched modules and such) for a reasonable rate: About $2 per unit.

    Keeping it local meant I got faster turnaround on the proofing process, and avoided shipping charges for the final product.

    The only tricky thing was finding a distributor, and on that account I got lucky. I happened to already know the guy who runs War Path Games, but I didn't realize it at the time. Not that you'd need to know the War Path folks in order to get a foot in the door there, though; if you have a product you'd like to sell from them, I highly recommend dropping them an email.

    I'd like to say I've broken even on F1 so far, but sadly I haven't. I get at least 40% of MSRP for every copy sold through the distributor (which includes all sold through FRP Games & Noble Knight). I made about the same rate on the F1 + GS1 combos, but there are devils in those details based on how I account for my production cost on the combos.

    On the bright side, F1 has sold better than I originally expected, but I probably need to sell another 30-40 copies for it to break even on its own. (I've sold around 80 copies so far.)

    But really, I have other more creative plans for how to recoup my F1 expenses. I'm going to keep those plans under my hat right now, though, but not for any kind of competitive advantage; I just don't have full confidence that a strongly-related arrangement will work out. I don't want to make promises that I am not in full control over.

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  3. James, anytime you have a question about what Brave Halfling Publishing is doing, just send me an email.

    No, I have never been contacted by WOTC. I commissioned Kevin to create a cover that would be similar to the game-of-origin's cover. Kevin is very good at what he does and he created a cover that is wonderfully inspired by the original. I rushed to begin the "Name the Game" contest because I knew that the main editor of this work, Dave (Greyharp) was going to have some pretty serious surgery soon and that he might be in the hospital recovering for a long time. Indeed, I have not heard from Dave since he entered the hospital back on May 5.

    Within hours of posting the contest and the piece of art, I was contacted by prominent OLD SCHOOL ARTISTS that I have worked with and respect. They explained to me in detail why the piece COULD be considered unethical, so I removed it. There is no back-room talks, no lawyers or corporations threatening me. I could have kept the cover, but I want BHP to do the right thing. And I would never want BHP to do anything that might possibly cause problems for other publishers and the OSR as a whole.

    About publishing, it is my opinion that WOTC have given us a gift in the OGL that allows us to publish material for classic rpgs. I intend to do my best to honor that gift. Not everyone sees it that way and I would NEVER tell another publisher that they MUST use the OGL. However, that hasn't stopped some folks in the OSR (but not any OSR publishers) from calling BHP "chicken" (and things far worse) because we refuse to use WOTC's trademarks and IP in our products.

    So there you have it - no behind the scenes secret talks. But we OSR publishers DO talk with each other, but we never tell each other what to do. No conspiracy. I stopped using the art piece out of respect for artists - nothing more, nothing less.

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  4. If neither Thorkhammer nor BHP were contacted by WotC, I'm actually disappointed by that. I wasn't thinking of it as "being threatened by a corporation," I was hoping that it was some sort of real guideline or boundary for our activities.

    As for the OGL... certainly my rant in the front of the original printing of the Creature Generator was a result of unclear thinking. The OGL is not the devil or anything evil or encroaching. I don't think it's necessarily a gift, either. As I said in the post here, it's a tool. I can believe it's the only tool if making a clone rule set... but for adventures? Obviously the jury is still out on that one.

    The issue of declaring direct compatibility (which you can't do if using the OGL due to section 7)... to me it's quite simple.

    If one is within one's legal rights to declare direct compatibility by name, as Guy does with F1, then doing so is in no way discourteous to the trademark holder. It is merely exercising one's rights. But I don't think choosing not to do so makes one "chicken."

    Since I have no intention of using the TSR-ish cover formats, to me, there are just two big questions that need to be answered:

    Is declaring direct and explicit compatibility, as Guy does, really OK? (so far so good, right?)

    If so, is there any real advantage in the end to declaring compatibility with AD&D 1E, for example, instead of OSRIC? I mean, does that really reach any more people? One would think so, but I think this might just be creator preference that "D&D" feels better to him than "OSRIC" or "Labyrinth Lord," while the potential consumer base for small press stuff doesn't really care.

    But there isn't any way to answer these questions than to stick our necks out there and try, is there?

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  5. FWIW, I've spoken with attorneys regarding the direct, explicit, and properly-credited use of others' trademarks, and I believe F1 does so in a legal way. (And I also believe Kenzer & Company's unlicensed 4e product also does so in a legal way.) Regardless of my belief, however, it's still possible a court could rule against me on the issue.


    Tangent: In the scant few months I've been doing this, I've answered a wide variety of publishing questions from several people looking to do similar things. Certainly I had a bunch of questions when I started, and researching the answers was not always easy. I'm sure John has had a similar experience. Perhaps there is a real need for a publishing-specific subforum on one of the old-school forums?

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  6. Using another person's trademark with a disclaimer is pretty safe. I don't think it's been tested in any way that would create clear common law for RPGs specifically, but the crux of trademark law is about WHO produced something. You could potentially run afoul of it by using tons and tons of material similar to trademarked graphics and words, but it's fairly safe.

    The risk for someone who's not using the OGL is located in copyright law, not trademark law. By using monsters that are only found in gaming (eg, "stirge"), you're potentially violating a copyright - because without the OGL no one has granted permission to use this sort of material. It's in the same realm as fan fiction, which has been tested under US law and didn't fare well. The OGL allows you to use made up words equivalent to the "Hogwarts" and "Harry Potter" that submarine fan fiction. Without the OGL, you don't have that right.

    BUT, using the OGL prevents you under CONTRACT from using trademarks - you'd be allowed to under trademark law, but this isn't trademark law - it's contract law. By getting the right to use "stirge," you lose the right to use "D&D." There's a trade-off.

    The major publisher (Kenzer) using AD&D material without the OGL (and choosing to state compatibility as his reward) is a lawyer. He might be the sparkly snowflake; I don't know. But the bottom line is that each and every product created without using the OGL has to be scrupulously checked for copyright violations. That's not an effort most publishers can really make except by the seat of the pants, because there are grey areas. But if it goes as far as fan fiction, that might very well be the measure of the test. And it's a scary benchmark if that is indeed the benchmark.

    Hence OSRIC and Swords & Wizardry and BFRPG and LL. In the case of OSRIC and Swords & Wizardry at least (I can't speak to the others) there has been significant legal review, equivalent to what Kenzer has done for his own product. But since these are rule sets, they can be used as a legal buffer for a publisher who can use those rules to publish, and has a legal rules-referent to point to as the source of derivative material. The downside: that publisher is under the same secret-code-word problem as the underlying retro-clone.

    Kenzer's initiative on this is dangerous to anyone who thinks that the strategy can be used as a general rule on all writing for out-of-print rule sets. It's highly specific to the contents of the material. A campaign world, such as Kenzer produced, is particularly easy to scrub free of violations. That's not true of everything.

    Anyway, that's an overview of the legal landscape - just a general overview; not legal advice tailored to a client, but enough to point out why things are being done in two different ways and why Kenzer is indeed something of a sparkly snowflake - people experienced in IP law are much safer than a layman if taking the Kenzer approach because each project has to be analyzed on its own copyright law merits.

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  7. Matt, Kenzer isn't the Special Sparkly Snowflake. Kenzer has always seemed pretty cool to me. :)

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  8. Don't get me wrong regarding the unlicensed 4e Kalamar book. Although it helped inspire how I did F1, it certainly wasn't the only inspiration, and I certainly wouldn't use it as legal proof that F1 is okay.

    When explaining my layman's view of the legal landscape to friends & relatives, I primarily point to the Kalamar book as a, "yes there are other more visible companies that legally use properly-credited WotC trademarks" talking point.

    And although it's a setting book and can therefore minimize the amount of potential for risk, it does a few things that surprised me in terms of risk. For example, I seem to recall the existence of several WotC-originated feats and/or powers within its pages, along with the usual mechanical descriptions. (At the same time, it's been several months since I did my research, so I reserve the right to be wrong, lol!)

    Not that that's any sort of proof that Kalamar 4e is legal.

    Matt can correct me if I'm wrong, but IIRC a company is not required to enforce its copyright. So regardless of how WotC feels about the product, and regardless of how a court might rule, WotC might simply be choosing to let Kalamar 4e slide.

    The way I understand it, there is not *necessarily* any precedent which would apply here. The fan fiction situation could be relevant. (And I would anticipate WotC's attorneys bringing that up in a court case.) But the RADGames vs Hasbro situation could also be relevant. One attorney I spoke with also made reference to some potentially-relevant computer game situations, but I don't have even the vaguest of recollections of those details/companies.

    I don't think we'll really find out what's legal and what's not in terms of this third-party unlicensed module/supplement situation until somebody goes to court over it.

    The OGL & GSL give WotC quite a bit of leverage/power in an ambiguous legal landscape. I bet WotC values that power too much to test the legal waters on a product like mine. Especially when the product is (IMO) done in such a way that the courts would deem acceptable.

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  9. Matt can correct me if I'm wrong, but IIRC a company is not required to enforce its copyright. So regardless of how WotC feels about the product, and regardless of how a court might rule, WotC might simply be choosing to let Kalamar 4e slide. That's right. You have to enforce trademarks, but not copyrights. Basically.

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  10. I do have a blog where I post my observations and learning experiences with rpg publishing and I have always made it point to share what little I know with everyone who asks me. :)

    http://carpgp.blogspot.com/

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  11. Whilst I appreciate the significance of the 4e Kalamar product, is it not more pertinent to look at their pre WotC AD&D compatible material? Kenzer & Company was publishing short modules for AD&D in 1999 and 2000 without a license, eight of them altogether. I have copies of most of them, and what they include and what they omit is pretty interesting!

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  12. I didn't include those in my research. I'll see if I can get copies for a reasonable price on the secondhand market to better understand what K&C did.

    But I'm not sure it's *more* pertinent to consider those sources. Unless I'm mistaken, those AD&D compatible modules didn't list themselves as such, and actually used a slightly different set of stats. Plus, I'm personally more curious what WotC does regarding a *recent* unlicensed supplement than what they did 8-10 years ago.

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  13. They are listed as compatible with AD&D, Role Master and Hack Master. Seems more pertinent to me than a book released as compatible with 4e.

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