Evil Genius Games Announces Path Forward—Beyond OGL
In light of recent developments in the gaming industry, many of our Evil Minions have asked us to share our plans concerning the anticipated retraction of the Open Gaming License (OGL) 1.0(a) by Wizards of the Coast, their potential new OGL 2.0 license, and how these ongoing changes might affect our current and forthcoming products.
These questions have been no light matter, and we respect how they affect the gaming community and our fans in particular. At Evil Genius Games, we desired to make a game that honors d20 Modern but would be familiar to 5e players. We have other influences too, of course, including a love for big action films and RPGs of all kinds, as well as a commitment to creative game design that is uniquely our own.
Given the questions around OGL, we have spent several days consulting with our legal counsel, Brian Lewis, Managing Director of Azora Law, to understand how it affects our products and what our best path forward should be. You may recognize Brian’s name from the recent flurry of news, as he was an integral party to the original writing of the OGL 1.0(a) while serving as chief legal counsel at Wizards of the Coast. He is also currently spearheading the new Open RPG Creative License movement, which has already gained the support of respected game publishers such as Paizo, Green Ronin, Kobold Press, and Legendary Games.
As Brian Lewis points out, “At the inception of the OGL, Wizards widely represented (see e.g. OGL FAQ v 1.0 or the dialogue on the non-confidential Open Gaming License listserv used at the inception of the OGL) that OGL 1.0a was an irrevocable contract with obligations for both Wizards and participating publishers. Kit Walsh argued here very persuasively that, viewed externally, this position has clear support under Washington law which holds that, unlike a license without consideration, an offer to contract cannot be revoked unilaterally once it has been accepted. To hold otherwise would create an illusory contract that would be rendered unenforceable.” Brian Lewis goes on to explain how Kit Walsh’s analysis affects gaming publishers like Evil Genius Games and others in our industry: “Wizards offered the license and publishers manifested acceptance by publishing OGL 1.0a in their product.” Lewis continues. “Wizards said the agreement was irrevocable because the moment a publisher did that, Wizards could neither revoke nor de-authorize that which had been offered and accepted. In short, she reasoned that publishers that held up their end of the bargain under the OGL 1.0a are entitled to the benefit Wizards promised them under that contract. She wasn’t saying that Wizards can’t revoke the offer of the OGL 1.0a as to new publishers or new versions of D&D that have not been placed in an SRD, but regarding Wizards’ content dedicated to OGL 1.0a pursuant to an SRD, once accepted the die is cast.”
Upon careful consultation and review of OGL 1.0(a), and relying on the analysis of the issues at hand by the Electronic Frontier Foundation, which has been shared widely online, we are confident that we do not need to use or rely upon any Wizards of the Coast OGLs, of any kind, in order to produce our games and products. We don’t believe there is any substantive intellectual property that we get from the OGL for our products to work as designed. For that reason, we are taking the position that we can publish our core rulebook—as-is, free and clear of the OGL.
Here were the considerations that we made to arrive at this conclusion:
First: Core Rulebooks
Our design approach has always been to craft our own writing. Therefore, at no time during the development of our books have we used language taken directly from the 5e SRD. While our game designers familiarized themselves with 5e SRD and other systems, they acted with foresight and initiative to write all of the language within our core rulebook in their own voice, so that it is thoroughly customized and specific to Evil Genius Games.
As a result of this thoughtful creative approach, we at Evil Genius Games have produced a completely unique product. In fact, much of our rulebook is entirely new (i.e., Genius Points) to the gaming industry. This is something we’re proud of, and that is unrelated to anything made by other game publishers.
Second: Rule Mechanics and Terminology
When it comes to games and mechanics, the fact is that the vast majority of familiar terms used in RPGs, such as “dexterity,” “advantage,” and “feats” are not unique to any specific game. These terms are not capable of being protected by copyright because they are too short and because they have a utility function protected under the scenes a faire doctrine. Nor are they capable of being protected by trademark protection, because no one party has policed the words sufficiently to indicate they are the sole source of goods using that indicator.
In other words, these gaming terms that allow us to spell out rules in our books do not and cannot belong to any single gaming company. Therefore, we feel comfortable incorporating these terms for use in explaining the rules mechanics of our book.
Third: Cinematic Adventures
With regard to our Cinematic Adventures, we are even more confident that all of the language we have used in these properties is unique, as are all the mechanics for gameplay that we have created. Our stance, therefore, is that our Cinematic Adventures do not require the OGL license in order to be published.
What Comes Next
In light of these conclusions, Evil Genius Games will be removing the OGL license from all of our products from this point forward. For those who may have already obtained or ordered our core rulebook or our first two Cinematic Adventures, we simply encourage disregarding any OGL-related language. These books were printed prior to the WotC announcement. Going forward, all future printings of our rulebooks and related products will be revised so as not to include any OGL language whatsoever.
We are grateful to have been among the first gaming publishers invited to help build the new ORC license through the newly founded ORC Foundation. The owner of Evil Genius Games has been asked to serve on the ORC Foundation's Board of Directors, and we look forward to building this independently run organization and participating in its completely free, irrevocable, perpetual, open gaming license.
That said, our team remains incredibly appreciative of all that Dungeons & Dragons has meant to us personally, and of the work that Wizards of the Coast has done. Without their efforts to promote role-playing games and the courage to publish the OGL in the first place, we would have never had the vision to contribute in this industry that we love. We’ll continue to cherish that history and the place that D&D has in the minds and hearts of our entire staff. We sincerely hope that Wizards of the Coast comes to a decision that supports the entire industry going forward, and we look forward to that day.
In the meantime, we are happy to announce that the production of Evil Genius Games products is proceeding right on schedule. The most recent printing of our books is completed and are already in their shipping containers and en route to our warehouses, and we don’t anticipate any delay in deliveries to our customers.
We look forward to a future of creative, inventive gaming adventures for you, our Evil Minions, and we appreciate your support.
How to Support the ORC
If you would like to be involved in supporting the ORC Foundation as it moves forward to help gaming publishers and game players create and enjoy their favorite RPGs, here’s one way you can do so. The Diana Jones Foundation is taking donations toward the ORC Foundation, and 100% of your donations go straight to the foundation. You can find the donation page here.