Analysis: with the popularity of role playing games on the rise, how does a classic like Dungeons & Dragons protect its intellectual property?
By Liam Sunner, Queen's University Belfast
Over the last years, there has been significant growth in the interest in table-top role-playing games. This has stemmed from many factors such as nostalgia, increased accessibility through structured events, lets plays, and of course, Stranger Things.
The primary beneficiary of this rise in popularity is Dungeons & Dragons (D&D or DnD), the largest and most well-known of these games. But with this rise in popularity, the broader public has often conflated all forms of role-playing games with Dungeons & Dragons, so it has become shorthand for an entire medium.
What does this mean for the actual Dungeons & Dragons as a unit of intellectual property (IP) across various media formats?
"By aggressively protecting the prestige and value of the name, Dungeons & Dragons is not likely to become a generic term"
Firstly, there's the question of gentrification of the IP. This is where the protected trademarked term (the branding and brand name) becomes synonymous with the industry or service it provides. However, D&D publisher Wizards of the Coasts (WotC) are quite active in their protection against this, often ensuring it's genuinely Dungeons & Dragons and not some generic dice-rolling game when broader media uses Dungeons & Dragons.
By aggressively protecting the prestige and value of the name, Dungeons & Dragons is not likely to become a generic term.
However, it can still be used outside the protections afforded to WotC, though this is subject to specific fair use requirements and limitations and significantly depends on the legal jurisdiction. It has led to some clever parodies or homages.
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Secondly, the player base and community's use of the protected material is an important element to discuss. This is significant as the use of the IP by unauthorised users can lead to the termination of the right and has led to some highly aggressive attempts to protect an IP right in the past.
This is a more complex line to walk where there is a significant community engagement. A clear example of this is the various live play shows or podcasts, where the game players use Dungeons & Dragons as a basis for their performance. Critical Role is the most prominent, using the D&D system and IP to run long-form narrative productions. From a strictly legal perspective, WotC could issue a legal warning to cease using and commercialising their IP. But when companies have done this in the past, the player community has viewed it quite negatively.
Additionally, the live plays and podcasts can generate a sizeable viewership and this serves as free advertising for D&D and acts as an inroad or entry point. The IP holder will often allow such fan-driven work to continue on the condition that it does not risk the IP either through inappropriate content, a substantial divergence in tone, or attempts to claim ownership of the fan-created work. Such fan-driven work can often lead to partnerships, as Wizards of the Coast have done with Critical Role.
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Finally, it is important to briefly look at the IP behind the game itself. Other role-playing games, both past and present, can use similar mechanics, such as skills, or have the players attacked by Orcs. Often this relates to the copyrighted material, but that would only protect the expression of an idea and not the idea itself, i.e. it would protect how Dungeons & Dragons have written about the Orcs in their setting but not the basic concept of Orcs.
Additionally, such fantasy elements are considered within the public domain or free to use, subject to certain restrictions. As such, we can have Orcs within Dungeons & Dragons and a myriad of other games and settings without conflict.
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From a game mechanic sense, WotC permits the use of the D20 system by third-party developers through the Open Game License. This allows other companies, subject to a license from WotC, to design and sell additional material for games and indicate compatibility with the core Dungeons & Dragons rules.
Examples of this often alter the setting from fantasy to sci-fi or historical settings. Such a license has given rise to many alternative game options, including Pathfinder, which some viewed as a return to more traditional role-playing game elements following unfavorable changes from Wizards of the Coast.
Dr Liam Sunner is a lecturer in the School of Law at Queen's University Belfast
The views expressed here are those of the author and do not represent or reflect the views of RTÉ
