Are Actual Plays Infringing on Copyright?

Actual Play podcasts like Critical Role, Dimension 20, and The Adventure Zone are the bread and butter of this hobby. Not only do they help expose new players to the hobby, but they also provide long-form stories that other platforms can’t tell.

According to a new article from Vanderbilt University, they may also break copyright law.

Vanderbilt’s Journal of Entertainment and Technology Law, a peer-reviewed student-run publication from the university’s law school, published Roll for Lawsuit: Are Actual-Play Series Copyright Infringers? by Mark Mehochko. Mehochko makes a case for how actual play content made for Dungeons and Dragons may violate the Copyright Act of 1976, specifically the part defining the company’s right ''to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of owner- ship, or by rental, lease, or lending.”

(Important to note that this discussion only applies to D&D, and other TTRPGs may be susceptible to different discussions around copyright.)

Copyright and TTRPGs

Copyright law can get a bit wonky, so I’ll do my best to explain the article’s argument.

First, let’s establish some basics about copyright and games in U.S. law. Game publishers like Wizards of the Coast can’t claim copyright on things like dice or the idea of a wizard, according to previous court rulings. They also can’t claim copyright over basic ideas like “roleplaying games.”

What they can make a copyright claim over are “game components,” such as the unique ruleset in the Standard Rule Document. While anyone can create D&D-related content, the SRD’s licensing rules require that the creators reference D&D and the regulations in a manner that matches the license requirements. In other words, I can’t pick up the SRD and go, “I made this all by myself.”

According to the Copyright Act, WOTC has the right to control content distribution, including how D&D’s rules and stories are distributed. That includes controlling “public performances,” such as playing a game on a public stage or recording and publishing it on social media. The same rules dictate why community theatres and stages must acquire licenses to perform plays.

Wizards has stated that actual plays are okay if they operate within the confines of its Fan Content Policy, Terms of Service, and Code of Conduct, all of which can be easily found online. The FCP is a “limited license,” meaning it grants users specific rights to use the IP or assets within a set number of restrictions. WOTC sets the rules, and you have to agree to them.

Here’s where things get weird. Most D&D fans and creators will never read the FCP, but they’ve agreed to it through a “browsewrap agreement.” A browsewrap is when a user agrees to abide by a deal through general actions such as “browsing” a website or reading a book. They were never asked to sign anything confirming the agreement, and never clicked a button saying they agree.

This approach to an agreement can sometimes complicate enforcement, since you can’t prove that I went to WOTC’s website and agreed to the deal. Enforceability specifically discusses how a company or creator might uphold a license and often requires some documentation confirming that there was an agreement set in place. If I sign a document stating that I sold my car or house to you, that’s a clear, enforceable agreement and transaction. If I only agreed to sell you my vehicle through verbal agreement, that’s a lot harder.

This all culminates in the big loopholes that the FCP presents.

“The [Fan Content Policy] allows for limited use of WotC’s intellectual property; thus, whether the Policy is enforceable as a binding agreement carries strong implications for whether actual-play series creators are at risk of copyright infringement,” the author argues. “If the Policy is enforceable, then actual-play series can use WotC’s copyrighted material without threat of liability, so long as they act within the scope of the license. If the Policy is not enforceable, however, then actual-play series are likely infringing on WotC’s IP, because without the limited use provision, use of WotC’s IP by actual-play series is unauthorized.”

Does the Fan Content Policy even Work?

The article discusses many speculative legal questions about unauthorized performance.

Some of those speculative questions include:

• Whether the Fan Content Policy is enforceable. While the FCP is a general document available to the public, a player’s written consent isn’t required to abide by it. That leaves a lot of grey around whether the FCP protects an actual play since the “browsewrap” approach to its consent is vague and might not be enforceable.

• Does the “limited use” license of the FCP apply as fair use? For example, let’s say I run Curse of Strahd in my actual play. Fair Use law requires using another’s content to be “limited” and “transformative.” How much of CoS can I run before I run into copyright issues? How many changes do I have to make before I am unethically reproducing Curse? How often can I quote the book before it exits the realm of fair use?

• Is a live performance of an actual play more like a board game or a video game? This question could have outstanding implications for how copyright rulings apply to current copyright laws and public performances. A video game would be more regulated since every person will experience a more controlled experience during their playthrough.

• Do actual plays hinder or increase the sales of WOTC books? Do they have a substantial economic impact on the bottom line of the TTRPGs in question? This is often a key question in Fair Use cases and helps determine the downstream harm of appropriate legal questions.

These questions culminate in the author noting that Congress could address the legal grey areas. The legislative branch could “make an exception that entitles the owner of a lawfully purchased game, including D&D modules, to play the game and create audiovisual derivative works.” in the same way that some arcades could own arcade game consoles without having a direct license from the publisher.

Why This Matters

I want to clarify that there’s no evidence that WOTC is seeking legal action against actual play creators. I suspect that the article author aimed to explore the depths of copyright and note how they apply to newer forms of media.

So why should we care about this article? I found the piece illustrative of some very unique parts of copyright law around what it means to transform a work. Whenever we play a prewritten module like Lost Mines of Phandelver or Curse of Strahd, we create unique and transformative works of art, building upon the blocks provided by Wizards, Paizo, or any other game-maker. Even if I ran Curse word for word like the book, the player responses and my subsequent adaptations to those responses transform the work into something new that resembles Curse but is entirely different for every table.

The law hasn’t figured out how to process that, especially when we capture those experiences and turn them into recordings and broadcasts. And I don’t think Wizards imagined that when they created the FCP in 2017 (way before actual plays were as popular as they are today). The document has not received an update since then and is likely due for another review in the near term alongside the recently revised SRD.

What do you think? Are there other copyright issues that actual play creators should be worried about? What will the future of this industry look like? Let us know! I’d also love to know the thoughts of AP creators on this legal article.

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