Sure, I can understand game companies wanting to maintain control of official material. I don't want to publish official material. I'm perfectly willing to say that my material is unofficial.
Though I don't care for D&D, I do respect their marketing strategy. They're sort of like the Microsoft of RPG publishers. They don't have to be good, they just have to sell. They do this by making it easy and profitable for others to sell compatible product, without any of this compatible product being considered official, or threatening the D&D trademark. They do this, of course, by specifying exactly what game designers can and can't do, and publish this as the D20 SRD. Maybe T&T needs an SRD, that spells out exactly what game designers can and can't do if they want to publish their own T&T materials. That would be certainly acceptable to me.
In the mean time, I don't want to spend days or weeks creating something and then selling basically all my rights to it for $100. If that's the starting point for negotiations, I don't see it getting a whole lot better after any amount of discussion. Hopefully I'm wrong, and one of you will prove it to me...
From the Lost and Found archives (missed this one initially, so it's slightly out of sequence):
If anyone is seriously considering publishing T&T materials, just be aware that FBI is going to want you to submit your work to them. I asked about publishing T&T material on my own, and Rick at FBI was dead set against it. My conversations about this with Rick and Ken have left me feeling deflated.
So I probably won't be writing any T&T modules. I can do other things where I can remain in charge of my own creation and don't have to worry about legal consequences. I've seen how Ken has lost some control over T&T because he doesn't own the trademark, and I don't want the same thing happening to me with stuff that I create.
I mean, come on, the real creative parts of a module are the characters and the plot, not which gaming system it uses. Writing a module for a game system, IMHO, is doing the owners of the gaming system a favor. For them to try to exercise control over your creative work when you're trying to help them out and promote their game by writing modules for it is utterly egotistical.
Sorry for such a negative post, and smite me if you want, but all you creative types out there have been warned.
Mahrundl, Rick indicated to me that he was worried about control of the trademark. He added that every time he's given someone casual permission to do something, he soon regretted it.
There's trademark law and copyright law both to be considered here. Rick is primarily concerned with the trademark law, I believe.
OK, I'm NOT a lawyer, but I have read quite a bit about both trademark and copyright law, so here's my take on this whole matter, and you can at least see where I'm coming from.
My understanding of U.S. copyright law is that it does not protect ideas, methods, processes, or much of anything other than presentation. It doesn't protect specific details, like the name "Batman" or the word "Hobbit", for instance. Copyright law gives no protection to titles of works. If someone titles their work "The Dark Knight", copyright law does not prevent someone else from titling their work "The Dark Knight" as well. Copyright protects an author primarily from having chunks of text from the body of their work lifted verbatim (or very closely paraphrased) and used elsewhere by someone else without permission.
Trademark law, on the other hand, protects certain phrases that identify products as belonging to a particular entity. Using a trademarked phrase without permission can get you in trouble. Any company that bothers with a trademark would want to protect that trademark, naturally. If just anyone uses your trademark, then it really isn't serving it's purpose, is it? For example, Aspirin used to be a trademark. It isn't now, because people kept referring to a variety of pain relievers from various manufacturers as aspirin. It was wrong to do so, but once the term aspirin became widely used to refer to pain relievers that weren't entitled to the trademark, it ceased to serve its purpose as an identifier of the source of a particular brand of pain reliever.
So I understand Rick's concern about his trademark. However, I do not want to use the phrase Tunnels and Trolls as a trademark identifying the source of my gaming materials. I merely want to say that my materials are for use with another product that does bear that trademark. But to say that means I have to use the phrase in its role as a trademark. So it's questionable as to whether or not I would be violating Rick's rights. I could certainly say something like "This game is for use with a certain RPG system created by Ken St. Andre." That would not violate trademark. If I want to say "This game is for use with the Tunnels and Trolls RPG system", it would be best to have permission from the holder of the trademark. Even then permission might not be necessary, if you had a good lawyer. After all, you aren't actually trying to apply the trademark to your game, you're just trying to say that your product is compatible with someone else's product, and that someone else is identified by this particular trademark. After all, it's the use of the phrase as an identifier that is protected. If you are careful in your wording, you should be able to make it clear that the phrase is not being used to identify the source of your product, but of the compatible product. But if you aren't really careful and if the case goes to court... well, you never know what the outcome will be. As I said above, you better have a good lawyer.
Even if you avoid any conflicts with trademark, you still have to worry about copyright. In the case of Tunnels and Trolls, it may be Rick that owns the trademark, but it's Ken that owns the copyright. As mentioned above, copyright protects the presentation of the material. You can say the same thing as someone else, as long as you don't copy their words, or paraphrase too closely.
You can't copyright ideas. The idea of rolling 3d6 for stats can't be copyrighted. The idea of using STR and CON and INT, etc., for stat names can't be copyrighted. What can be copyrighted is how you describe the use of the dice and how you describe the use of the stats.
The longer a particular copied phrase, the more likely the copyright owner would win if a case went to court. It's debatable as to whether a phrase such as "Take That, You Fiend!" would be considered long enough to be protected by copyright. I doubt it. But it's handled on a case-by-case basis, and just because one copyright owner wins a case doesn't mean the next one will win a similar case. The justice system can be very fickle. If it weren't, you wouldn't see any cases being appealed... (and overturned...)
So... to be safe, the best thing to do if you want to write some T&T game material is to get permission from the trademark owner (Rick) and the copyright owner (Ken). You might be safe without permission, but I'm not one for setting myself up for a big hassle later. So... I want to publish my own game materials. I asked for permission to do so. I was not given permission. I respect Rick's right to his trademark, and I'm not going to try to finagle some way to get around it. T&T was my first RPG, and I like it the best, and I would like to write materials for it, to help promote it, but I really, really want to publish my own stuff. My desire to publish my own stuff overrides my desire to write T&T materials. Since I can only do one or the other, I have to decide which is more important to me. I'm upset that I can't do both, but it's not always fun and games; sometimes it's business. Real Life gets in the way of fun sometimes, and we just have to deal with it.
Rick could decide to create a secondary trademark for T&T, like D20 is for D&D. He could then allow people to publish their own materials using the secondary trademark. This would not dilute the Tunnels and Trolls trademark, yet make it clear to the buying public that these unofficial products are intended to be compatible with products published using the official trademark. But this might be considered too much competition for official products...? But it was Ken, not Rick, that voiced concerns to me about competition, rather than trademark rights.
Anyway, if it ever comes to pass that I get permission to publish T&T materials on my own, then I will consider it. Until then, I only have a certain amount of free time, and I am not going to spend it writing T&T modules that may or may not be published. And I want to retain control of my creations, not give them away for other people to profit from. I already tried to write something for T&T that I didn't care if I gave away the rights to, but anything of quality that low doesn't deserve to be published.
So, that leaves me writing D20 games or making up my own system. I'm not about to write D20 games (I can't stand that system, of which I have played my share). So I guess I know what I have to do. If you don't see me around much, then you'll know what I'm up to.
The Tunnels and Trolls game bears a trademark. The trademark is the phrase "Tunnels and Trolls". Thus, you can't distribute a game (even for free) that uses the phrase "Tunnels and Trolls" to identify the source of the game, since the source of your game is you, and the trademark "Tunnels and Trolls" identifies a source that is not you, but rather Flying Buffalo, Inc.
Here are some excerpts from a U.S. Department of Commerce pamphlet about trademarks:
Trademark rights arise from either (1) actual use of the mark, or (2) the filing of a proper application to register a mark in the Patent and Trademark Office (PTO) stating tht the applicant has a bona fide intention to use the mark in commerce regulated by the U.S. Congress. Federal registration is not required to establish rights in a mark, nor is it required to begin use of a mark. However, federal registration can secure benefits beyond the rights acquired by merely using a mark.
There are two related but distinct types of rights in a mark: the right to register and the right to use. Generally, the first party who either uses a mark in commerce or files an application in the PTO has the ultimate right to register that mark. The PTO's authority is limited to determining the right to register. The right to use a mark can be more complicated to determine. Only a court can render a decision about the right to use, such as issuing an injunction or awarding damages for infringement.
Unlike copyrights or patents, trademark rights can last indefinitely if the owner continues to use the mark to identify its goods or services.
A United States registration provides protection only in the United States and its territories. If the owner of a mark wishes to protect a mark in other countries, the owner must seek protection in each country separately under the relevant laws.
The application must be filed in the name of the owner of the mark. The owner of a mark controls the nature and quality of the goods or services identified by a mark.
Anyone who claims rights in a mark may use the TM (trademark) or SM (service mark) designation with the mark to alert the public to the claim. It is not necessary to have a registration, or even a pending application, to use these designations. The claim may or may not be valid. The registration symbol, ®, may only be used when the mark is registered in the PTO. It is improper to use this symbol at any point before the registration issues.
Now, if you look on the cover of the T&T 5.5 rules, you'll see the TM. This indicates that FBI claims rights to the mark. It doesn't have to be registered for them to have protection under U.S. law.
All decisions about who is allowed to use a mark can only be determined in court. I hate courts. I also like T&T too much to want to cause any trouble for its author or publishers. So I'm not about to contest FBI's right to the mark. It just means that I won't be writing any T&T materials until conditions change to something I am willing to accept personally. I do look forward to seeing T&T materials from the rest of you that either work out something with Rick or decide to ignore U.S. law (easy enough for those of you that are not U.S. citizens, eh?). (However, there may be laws in your country that give FBI certain legal protections concerning his mark.)
Rubbish? Hey, most laws are. Until you're forced to abide by them whether you like it or not, at which time it will most likely be a very unpleasant situation for you.
The trademark is not abandoned. It has been used as recently as edition 5.5 (I don't see the TM on the 7th edition book). It doesn't have to be registered to give protection.
Moreover, according to the pamphlet I have from the U.S. Department of Commerce, a trademark can be a word, phrase, symbol, design, or any combination thereof. In this case, it's the phrase "Tunnels and Trolls", not the orange bits. It doesn't matter what color it is, or what font was used, or what graphic embellishments are made to the phrase. The phrase is the trademark. At least, that's what I would expect FBI to argue if it went to court. And going to court is the only way to determine the full protection of the phrase "Tunnels and Trolls" as a trademark. I have no interest in going to court to make this determination.
Just because FBI has never taken anyone to court over improper use of their trademark doesn't mean they won't ever...
Hi ! What we really want is new quality material for T & T. "that guy" has been able to release lots of products under the "that company" banner and it seems he has obtained permission both from Flying Buffalo and from Ken St Andre to do so. (Andy Holmes also released quite a few quality products without being annoyed.) It therefore seems that to have some T&T thing published, you can contact "that company" and/or Flying Buffalo. T&T products don't sell very well so chances are FBI will turn you down while ""that guy"" probably won't (as long as your product is good). Having said that, I'd love to see a new Michael Stackpole solo with illustrations by Liz Danforth. I'd even go as far as paying FBI to manage the whole project.
Post by apeloverage on Aug 6, 2008 15:02:11 GMT -5
Since someone else has revived this thread:
en.wikipedia.org/wiki/Nominative_use - you can put out a product and describe it as (eg) "compatible with Tunnels & Trolls", or "uses the Tunnels & Trolls rules" as long as (quoting from the Wikipedia article):
The product or service cannot be readily identified without using the trademark (e.g. trademark is descriptive of a person, place, or product attribute).
The user only uses so much of the mark as is necessary for the identification (e.g. the words but not the font or symbol).
The user does nothing to suggest sponsorship or endorsement by the trademark holder. This applies even if the nominative use is commercial, and the same test applies for metatags.
Receive one exalt, apeloverage, for your research proficiency. This "nominative fair use" doctrine seems reasonable. It has now been ascertained that one actually can publish for example a T & T solo indicating that it "must be played using the Tunnels & Trolls game rulebook". There are several drawbacks, however. First, the use of the T & T trademark is restricted to what is necessary to identify the solo (you can't use the same font or graphical form as FBI). It won't look as nice as a solo carrying the troll head and the official T & T logo, although it won't affect the quality (or lack of quality) of the content. Besides, obviously, the statement "must be played using the Tunnels & Trolls game rulebook" does not suggest sponsorship or endorsement by Flying Buffalo but it's not very "sexy" or attractive. In addition, maybe I'm being over-sentimental, but as a T & T player, I prefer to know that the people who created/produced T & T support (at least morally) a solo. They have expertise, experience, flair, they have quality standards and certainly would not endorse a product that sucks. That being said, I bought almost all solos available from Andy Holmes (a talented author) and "that company" (most of their products are fine, some are very good) even before there was a statement on it that it's been "officially approved by Flying Buffalo". I think many of us actually wanted Flying Buffalo to publish those products. It is obly because FBI dragged their feet (to say the least) that ways were found to publish new T & T stuff without Flying Buffalo. I'd love to see a resurrection of Blade with Michael Stackpole, Liz Danforth, Ken St Andre et al.