Under United States law, compatible supplements are even less restricted by copyright than rules are. Anyone can make a supplement or add-on for any game. No permission is needed for this, because supplements are original works. They are neither copies of the game rulebook nor are they derivative of it. The ability of third parties to use copyrighted works and trademarks to create competitive products is one of the underlying purposes of copyright and trademark in the United States.

Terminology cannot be restricted by copyright. At best it can be restricted by trademark, but only in the sense that it is used as a term of trade. Something that only appears on the inside of a book is not likely to be a mark of trade. And trademarks only restrict trade using that term. They do not restrict talking about the things that term represents.

Trademark and compatible works

According to the Harvard Law School’s Berkman Center, “The basic idea is that use of a trademark is sometimes necessary to identify and talk about another party’s products and services. When the above conditions are met, such a use will be privileged.”

The United States privileges competition in a free market. Neither the copyright monopoly nor trademark can undermine the free market in compatible products such as supplemental materials. Games are the same as motorcycles, kitchen appliances, and computers in this regard. The manufacturers of these compatible products reference what they are compatible with and they do not need a license to so reference, nor do they need a license to create their products.

An interesting case involving this principle came about when Sega tried to use trademark to control who could make Genesis III game cartridges. They designed the Genesis III so that any cartridge, in order to work, would have to trigger a logo that made it look like Sega approved the game. They called this their “trademark security system” which the court, in Sega v. Accolade, abbreviated “TMSS”. There was no known way to make a game work with the Genesis III unless that trademark popped up, making it look as though Sega approved that unlicensed game.

The ninth circuit wrote that this was an invalid means of restricting competition:

Because the TMSS has the effect of regulating access to the Genesis III console, and because there is no indication in the record of any public or industry awareness of any feasible alternate method of gaining access to the Genesis III, we hold that Sega is primarily responsible for any resultant confusion.

What the court was saying is that supplemental materials must be allowed. If the only way to make a compatible product is to violate trademark, then responsibility for that violation is on the original company for making it necessary.

The question is whether the computer manufacturer may enjoin competing cartridge manufacturers from gaining access to its computers through the use of the code on the ground that such use will result in the display of a “false” trademark… We hold that when there is no other method of access to the computer that is known or readily available to rival cartridge manufacturers, the use of the initialization code by a rival does not violate the [Lanham] Act even though that use triggers a misleading trademark display.

Accolade’s objective of making game cartridges for the Genesis III console “was a legitimate and a lawful one”. Allowing Sega’s trademark trick to work would have adversely affected consumers by blocking aftermarket providers. It would have undermined the free market that, in other fields, allows consumers to buy tires for their Ford cars that are less expensive than the tires at their Ford dealer, printer cartridges for their Lexmark printers that are less expensive than those made by Lexmark, and inexpensive batteries or power adapters for their electronic devices.

Competitors also reference their competition. Pepsi compares their product to Coca-Cola. Advil compares themselves to Tylenol. The Federal Trade Commission encourages comparative advertising, as long as it is not deceptive.

Copyright and compatible works

Some gamers worry that compatible add-ons are derivative works of the game rules they are compatible with. But as we’ve already seen in Copyright and Game Rules, game rules cannot be copyrighted. If game rules cannot be copyrighted, there can be no derivative works based solely on compatibility with a game’s rules.

This also shows a misunderstanding of what derivative works are. A derivative work is a “transformation” of a copyrighted work. A movie version of a book is a “version” of that book. It is transformative. It has been adapted. When a book is translated into a new language, that is transformative as well: it is the same work, but it has been “recast, transformed, or adapted”.

Derivative works, also known as “new versions,” include such works as translations, musical arrangements, dramatizations, fictionalizations, art reproductions, and condensations.

A game supplement is not traditionally a transformation of the game it is made for. It is a separate entity that is compatible with the game it is made for. Most aftermarket supplements do not include any of the copyrighted portion of the games they were made for, and “the infringing work must incorporate a portion of the copyrighted work in some form.” (Galoob v. Nintendo)

Short terms, including a game’s terminology, can’t be restricted by copyright either. From the Copyright Office’s web site,

Names, titles, and short phrases or expressions are not subject to copyright protection. Even if a name, title, or short phrase is novel or distinctive or if it lends itself to a play on words, it cannot be protected by copyright. The Copyright Office cannot register claims to exclusive rights in brief combinations of words such as catchwords, catchphrases, mottoes, slogans, or short advertising expressions.

Open content and compatible works

There are two areas where open content can benefit gamers when it comes to compatible products. Gamers who create and distribute compatible supplements benefit from open content games because a good open content license allows them to copy text directly from the game and it allows them to focus on worlds and characters without fear of running afoul of character copyright, something I’ll talk more about in the next installment.

Traditionally, game supplements have been drop-in replacements or supplemental material. They might offer a new combat system, or a new character type, for example. Game supplements have not traditionally rewritten a section of the rules, improving or expanding upon it. Depending on how much of the original’s “substantial literary expression” remains in the rewrite, such a new version could be a copyright violation under a closed content system.

Under an open content system, such improvements are encouraged. Open content means—or can mean—a better game in the long run.

And just as for game rulebooks, if the compatible product itself is released as open content gamers see the same benefits using that product as they see using the game itself. They can improve on the supplement, customize it for their game group, and distribute new copies with those improvements and customizations.

For example, an open content adventure can essentially be playtested forever. Those using the adventure, if they spot difficulties or improvements, can improve the adventure and then redistribute the game with their improvements. Every time someone plays that adventure the adventure has the potential to become even better for the next people who play it.