Thanks to Reddit, I was able to get my hands on the “plain English” version of OGL 1.1 today. Before I dig into what I found out, I need to make an important update/correction to my previous article.
On 01/07/2023, I gave my first reaction to the leaked Open Gaming License information. When writing about the royalties required under the new OGL, I said that for a creator making $750,000 in gross revenue they would have to pay WotC $187,500 in royalties.
That is incorrect.
Per the version of OGL 1.1 that I received today, royalties are to be charged on gross revenue in excess of $750,000. In other words, you don’t owe WotC until you get to $750,001. At that point, you owe them $0.25 on the dollar. This is still not great, but it does take the edge off the doomsday scenario I have seen floated where a very successful Kickstarter ends up over a hundred thousand dollars in the hole because they crossed the royalty threshold.
I also implied that royalties would be due almost immediately once OGL 1.1 goes into effect. That is also incorrect. Per the version I received, “no royalties will be due on any income earned before January 1, 2024.”
Income tiers in OGL 1.1
As others have reported, OGL 1.1 divides commercial content creators into three tiers, each based upon the amount of gross revenue earned in a single year. And yes, your Patreon probably counts as revenue. These are some of the examples the plain language version of the OGL lists of what they consider revenue, but WotC is clear that the list is not exclusive. You can be sure that Hasbro will argue for every last dime they can get, regardless of whether it’s a listed example or not.
- Crowdfunding (eg. Kickstarter);
- Subscription or membership fees;
- Patreons with licensed content as perks, if that content is not also made available for free;
- Selling the content outright.
The three (plus one) tiers are as follows:
- Initiate: Gross single-year revenue less than $50,000 from licensed content.
- Intermediate: Gross single-year revenue greater than $50,000 but less than $750,000 from licensed content.
- Expert: Gross single year revenue in excess of $750,000 from licensed content.
- Expert+: Commercial OGL1.1 hints strongly that very successful creators will “level up” into custom agreements that are more mutually agreeable.
Only creators at the expert tier are required to pay royalties.
What is covered by OGL1.1?
There has been a lot of discussion about how this creator or that platform will be ruined by D&D’s update to OGL 1.1. It bears repeating that the new Open Gaming License only applies to materials created for “in or as roleplaying games and as game supplements and only as
printed media and static electronic files such as epubs or pdfs.” It does not apply to video games, podcasts, livestreams, movies, music, or anything else that is not strictly printed media or static electronic files.
Why is this a problem? Because OGL 1.0a does not explicitly state the kind of content it applies to. It just says that the License applies to any open content that has the License attached to it. Certain virtual table tops and character builders include information from the SRD, and they have been allowed to because of OGL 1.0a. OGL 1.1 de-authorizes all previous licensing agreements, which means that those tools will no longer be under any licensing agreement. In other words, they’ll be illegal.
The leaked OGL 1.1 document makes mention of the Fan Content Policy, which you can read here. Essentially, WotC wants all non-print content to either follow that policy or be covered by a unique, independently-negotiated license. The Fan Content Policy, like the new OGL, prohibits you from charging for access, but does allow you to accept tips and ad revenue. It is important to note that the Fan Content Policy dates back to 2017, and I would not be surprised if that is the next document Hasbro gives a corporate facelift.
OGL 1.1 takes away a LOT of creator rights.
Overall, the worst part of OGL 1.1 for me is the sheer amount of rights it asks creators to give up. We knew from the initial leak that commercial creators would have to grant WotC perpetual, irrevocable licensing rights to their original content. It gets much nastier than that. Under OGL 1.1 both commercial and non-commercial creators grant sublicensable forever-permissions to Wizards of the Coast to do whatever they want with their stuff. Non-commercial creators are additionally required to provide “share-alike” privileges. That is, they are expected to give others the same open license to their original content that WotC gave them. Wizards even knows this has the chance to be problematic, because they further state that “[i]f you want to better protect your ownership, You may register under the OGL: Commercial.”
Oh. And if you end up having a legal issue related to OGL 1.1, you must forfeit your right to a jury trial. The document laughs this off, saying “[i]f a dispute ever occurs, We hope You agree with Us that it’s best all-around if it is handled quickly, efficiently, and with the least expense possible.” Most US courts will throw out clauses like this, but it bothers me that they included it to begin with. I suppose I should be happy that there isn’t a mandatory binding arbitration clause somewhere in there. With that said, I’ve only seen the leaked version, and we’ve yet to see the final document.
I just want to note in closing that some of the more sensational quotes from OGL 1.1 are taken from “comments” and not from the actual license itself. That part about being able to be convinced they’re wrong? When they say, “nobody gets to use the threat of a lawsuit as part of an attempt to convince Us”? Those are just snappy commentary from whatever intern was tasked with putting it in laymen’s terms.
I would love to hear your thoughts on the developing OGL 1.1 situation. Are you ready to jump ship on D&D? Making your own game rather than developing D&D supplements? Hit me up on Twitter and let me know what you think!