Writing for Roleplaying Games: Copyright

There are horror stories in every writing profession about people stealing your work and calling it their own; the roleplaying market is no different. So the question is, how prevalent is such nefarious activity, and what can and should you do to protect yourself from it?

Disclaimer: I am not a member of the legal profession and I have no legal training. What I say here I say from my own experiences and readings, and is not intended to be legal advice. Always check with a real live lawyer before acting on anything.

Freelancing vs. Independent Game Design

There are two categories of things that people who write for the gaming industry are likely to want to submit to companies, and it’s important to know the difference and which one you’re talking about. First, some people write or design an original game and then approach an existing company about the possibility of producing the game. Second, and more commonly, people approach a company about writing freelance for an existing property. They might submit a proposal for a supplement during this phase. For the most part I’ll be discussing the latter situation, since I know more about it.

Does It Happen?

Of course it happens. There are creeps and cheats in every industry. Anyone who tells you otherwise is probably either optimistic, naive or hiding something. (I like to think that the majority fall into the first two categories, but then I’m an optimist.)

Is It Likely to Happen to You?

No.

Does that surprise you? Have you heard lots of tales of ideas being stolen, and this answer doesn’t jibe with that? Well, I’ll explain — both why it’s unlikely to happen, and why so many people think it does. For the moment I’ll talk about proposals for supplements to an existing game.

#1. RPG companies often have their game supplements planned out years in advance. There’s work I turned in last year that isn’t even on White Wolf’s public release schedule yet, and it was contracted for well before that, and planned out well before that. Thus, if you send in a proposal and see what you believe are your ideas showing up a year or less later, it’s highly unlikely that your material was copied simply because the manuscript had probably already been written (or at least outlined and sent off to the writer) by the time you sent in your proposal. Note: The advent of the d20 phenomenon has changed this slightly. Now that lots of companies are putting out teeny-tiny modules, production time can sometimes be much faster.

#2. RPG companies typically have many, many books in the pipeline. Imagine that the RPG company has anywhere from ten to fifty books already in various stages of planning and production when you send them your proposal. You think your ideas are pretty cutting-edge for the game. But with that many books already in the works, what are the odds that someone has already come up with your idea? Surprisingly high, believe it or not. This also makes the odds pretty high that something that resembles your ideas will come out in print, making it very easy (and understandable) for you to come to the conclusion that your work was stolen, even though it probably wasn’t.

#3. Your unique ideas probably aren’t as unique as you think. Your ideas make sense for the game line whose developer you’re approaching, right? Well, if they make sense to you, then isn’t there a decent chance that the developer has thought of them too? Everyone wants to think that they’ve thought of the new, unique twist on a game world. It’s a wonderful fantasy, but highly unlikely. There are people who are paid to brainstorm about all the amazing things that could happen in that game world. You think about these things in your spare time, but they think about them professionally. They probably thought of it first. Harsh, but true. Again, this increases the odds that something resembling your ideas will appear in print, and thus, that you’ll think your work was stolen.

#4. Developers are people too. Say you send in your proposal, and the developer decides at that time that he isn’t interested. Two years later, when he’s forgotten all about your proposal, he thinks of the same (or a similar) idea. You could argue (perhaps entirely correctly) that he wouldn’t have thought of it if you hadn’t sent him your proposal, but that doesn’t mean he intentionally stole your idea. It’s impossible for anyone to totally police where he gets his ideas. Even you got your inspiration somewhere.

#5. Beginning writers are cheaper for RPG companies to hire. Many companies base their pay rates on your experience level. This means that it is cheaper for them to hire new authors. Everyone thinks that somehow a company is saving money if they “steal” your ideas and have a more experienced author write them. They aren’t. It costs them more. So if the company doesn’t hire you, it’s probably because they have reason to think that you won’t or can’t do the job they want done. I know, it sucks to come to this realization. Instead of getting angry, go improve your writing and your understanding of the industry. Come back in a few months or a year and show them that you can do the job.

#6. Parallel development is a very common phenomenon. It’s an odd fact of reality that “parallel development” happens all the time. This is the phenomenon in which multiple people develop the same idea completely independently at approximately the same time. No one really knows why this happens, but it does. Maybe it just means that it’s an idea whose time has come. I’ve certainly had the experience before of introducing something fairly weird into a campaign, and later seeing a revision of the game line include that concept even though I know there’s no way they could have heard about my ideas. They didn’t magically steal my idea; they simply came up with the same thing on their own.

What Constitutes Theft of Your Work, and How Can You Tell?

You cannot copyright or trademark an idea. Have I surprised you again? A lot of writers who haven’t done much writing make the mistake of confusing their ideas with their writing. As many professional writers will tell you, ideas are a dime a dozen. Ideas are everywhere. Ideas are easy. Everyone has ideas.

What sells writing is not the idea behind it but the execution. (In terms of copyright, it works like this: you can’t copyright an idea, but you can copyright the expression of an idea.) For example, the vampire story is an overused and fairly trite idea. There are many editors who won’t touch one with a ten-foot pole. Yet there are writers who can still execute their vampire stories in such unique and fresh ways that people gobble them up, even after reading another hundred vampire stories. By and large it’s the writing that sells RPG supplements, not the plot outline in the proposal.

Ideas might not be copyrightable, but writing is. And you don’t need to fill out copyright forms to be considered the copyright holder of your work. Unless you have in some way signed over the rights to your writing, you own the copyright automatically. (However, registered copyright does make legal enforcement of your copyright much easier!) So if you see your writing verbatim in print without your permission, you presumably have a legal case. Talk to a lawyer.

Full original games are a different matter, of course. This is because some games might be patentable, and because you’re sending the company much more than just a plot idea or an outline. Actually, this is a really good reason to write up a first draft of that game you thought up (and register your copyright) before you present it to the company. That way you have an actual work that is considered copyrighted and which belongs to you, and that is legally defensible.

So by now you’re probably thinking that if you wrote copyright law it would be possible to copyright ideas. Then consider the truism that all of the plots in the world boil down to something like six or seven basic plots (I don’t remember the exact number). You’d never be able to specify exactly how complex a plot would have to be before you could copyright it. So it would take, oh, maybe two months (I’m being very generous) before it would be legally impossible for anyone to write any sort of fiction.

There goes your writing career.

Should You Copyright Your Work?

If you’ve written an entirely original game then I’d say yes, copyright it. It’s just smart. Later if you want to sign over copyright as part of a deal, you still can; the fact that you copyrighted it won’t stop that.

If you’re sending in a proposal for a supplement to an existing property, then no. Don’t copyright it. First of all, it’ll be seen as very unprofessional by those editors and developers who are actually trustworthy. Why? Because it shows a naivete about how the industry works. It shows a lack of understanding of the relevant copyright issues — what you own vs. what they own. They’ll have every reason to think that if you’re copyrighting your proposal, then you’ll balk at signing a work-for-hire contract, which means for most companies that they wouldn’t be able to hire you.

Second, that proposal probably contains a lot of trademarked terms that belong to the company, right? Which might well mean that the company could try to make a case for your copyright infringing on their property. Bad news. (Not that this is likely to happen, but it does nicely demonstrate the fact that copyrighting a proposal makes you look unprofessional and uninformed.) Third, unless that proposal is awfully thorough, or contains sample chapters, then it probably still falls under the heading of an idea — which as I mentioned, isn’t copyrightable. Even if you do copyright the proposal, it doesn’t legally prevent the company from using some of your ideas; it just copyrights the actual proposal. And I doubt you’ll find your proposal verbatim in published form.

Note that it is also considered unprofessional in mainstream writing industries for you to put a copyright notice on a manuscript sent to an editor. Since your work is automatically considered yours, it’s clear that the copyright notice is only there as a warning to the editor. This very clearly tells him “I don’t trust you,” and no one wants to work with someone who doesn’t trust them. So this isn’t a case of the roleplaying industry being unreasonable; this is a writing industry standard.

Keep in mind that the majority of RPG companies do their supplement contracts as “work for hire.” This means that they’re going to own the copyright to the finished product anyway. This doesn’t mean that it’s okay for them to steal your work, but it does mean that you aren’t going to “own” that finished supplement. They are. This might put things in a little bit of perspective. (See part 6 of this series of articles, “Contracts,” on why it’s appropriate for much RPG material to be contracted as work-for-hire material.)

The Non-Disclosure Agreement

Most companies will require you to sign a non-disclosure agreement or something similar before you submit a proposal to them. Usually the wording of this agreement gives them the right to use your ideas, regardless of whether they hire you. This seems draconian, but it does prevent people from gratuitously submitting “proposals” for books they’re pretty sure the game company is going to produce anyway, and then claiming that the company stole their work. It also prevents the company from getting screwed over by cases of parallel development. After all, if every time someone sent in a proposal the company had to stop production on any book that seemed similar to the proposal, companies would never put any books out!

If you aren’t willing to abide by the terms of this agreement, then don’t sign it. Don’t send material to the company. Live with the fact that you’ll just have to find some other kind of work. Never sign something that you aren’t willing to abide by; to sign over your ideas and then cry foul is pretty silly.

If you don’t sign this paper and you send things in anyway, be advised that most companies will throw out your submission without reading it. They have to do this due to the remote possibility of legal liability or the appearance of impropriety.

What Can You Do to Protect Yourself?

Despite all of the reasons I’ve provided for why it’s unlikely that someone will steal your work, and why most cases of “theft” really aren’t, I will say again: theft of intellectual property does happen, in this or any other industry. But there are some things you can do to protect yourself.

Original Games of Your Design

A game that you fully designed is much more arguably your property than is an idea for a supplement. It’s also something that you should get much greater monetary returns and recognition out of, assuming it does well. Thus, you have a much greater stake in protecting it.

Make a Demo Copy: As I suggested earlier, put together a first draft or a demonstration copy, even if you expect that the company will re-work everything. This gives you something to copyright, and it makes your case for theft much more defensible if someone takes your work. Never hand over your only copy of the work to the company.

Keep a written journal that details what you wrote when. Every now and then get someone else to sign and date the most recent page. If you’re feeling particularly paranoid, get the signature notarized. (Engineers in some technology industries use this method. There’s no reason you can’t use it too.)

Research: Before approaching a company read industry news boards; check out web sites that post gossip, rumor, and news about the RPG industry. Read newsgroups devoted to a company’s games. Pay attention to any news that a company is being sued or accused of theft. For that matter, get to know the industry! The more industry people you get to know, the easier it is to find out which companies are cheats.

Do anything you can to research the company, the industry, other games like yours, etc. The more you sound like you know what you’re talking about when you approach the company, the less tempted they’ll be to try to take advantage of you. Don’t make it worth their while. It’ll also make it easier for you to tell when someone is trying to scam you. See whether the company will tell you the details of what sort of deal they typically offer before you send them the demo copy. If they use boilerplate contracts then see if they’ll let you and your lawyer look at one.

Talk to a lawyer before you approach a company. Find out what your rights are or aren’t, what you might choose to sign over and how, and so on. This will make you much more knowledgeable about what you’re doing, and thus much better able to spot someone who’s being sleazy. Also, any reasonable company will be perfectly happy to let your lawyer go over any contracts or paperwork, so be sure to insist on this. The simple knowledge that you have a lawyer and aren’t afraid to use him might also keep a company from trying to screw you over. If they balk at letting your lawyer see the paperwork, then find another company.

Pay attention to your contract: Some companies are willing to negotiate clauses in contracts. If you see something you don’t like, ask about getting it changed. If the company agrees to change it, then very carefully read over the “revised” contract they send you. Some sleazy companies will send you a second contract but not actually change the terms you disliked, in the hopes that you won’t read it carefully and will sign it anyway. If this happens, find a different company.

Research more: If possible, talk to someone else who has recently produced a game with the company you want to approach. Ask whether they had any problems. Pay attention to whether or not they seem to beat around the bush or give a lukewarm response; they might be loath to badmouth the company due to legal concerns even if they got screwed over, particularly since they presumably don’t know who you are.

Which brings me to my next point: when approaching these people be polite, ask nicely, and don’t be pushy. They don’t have to help you, so you need to convince them that they want to help you. Being rude or demanding won’t do the job.

Freelancing

Try to work for well-established companies. This doesn’t guarantee good treatment by any means, but it helps. If possible, track down a few recent authors and ask them whether the company is good to work for. Keep in mind all of the hints from the last section on being polite and paying attention to tone. Do your research, read your contracts carefully, and don’t sign anything you aren’t comfortable with. Preferably don’t send the company large full manuscripts without a contract–stick to proposals or, at most, sample chapters, so there’s less to get stolen.

Why It Might Not Be Worth Worrying About

As I mentioned before, it’s largely writing that sells, not ideas. Has the company so verbatim and directly stolen your work that you can’t show them up by writing your own, unique version of it? If not, why develop an ulcer over it? Go write your own work. Go develop your own version, as long as it doesn’t use trademarked terms, characters, etc. that belong to the company.

How completely does the printed work put out by the company match what you sent them? Does it match a loose one-paragraph plot idea that you sent them? You probably don’t have a leg to stand on then; it’s too likely that someone else could have come up with the idea, and again, you can’t copyright a plot or idea. Does it match the subject headings and chapter titles that you sent, but the actual content is all someone else’s? You probably still don’t have much of a case. If it really bugs you though, ask a lawyer. Did they reprint actual verbatim writing? Now that’s different. Go talk to a lawyer.

Keep This in Mind

Remember that even when writers do send in proposals and the company does decide to hire them, they often won’t be hired to work on that particular book. (This varies from company to company, however; the advent of the d20 phenomenon has changed this somewhat.) You’ll be assigned to work on whatever book the company has coming up, with whatever co-authors the company wants you to work with. This means that you probably aren’t going to be writing about that spiffy and “unique” idea that you had anyway. So if you’re going into this counting on writing about that one idea, then you’re already in the wrong market.

Please don’t interpret this as a recommendation to ignore it when a company really does steal your written work. By all means pursue such a case with the legal means at your disposal. Teaching companies that it doesn’t pay to steal is a good thing. Just take a step back first. Make sure you’ve really been stolen from. Make sure you know what’s copyrightable and what isn’t. Given the small paychecks in the RPG industry, make sure you won’t be spending more on legal fees than you’re likely to recover. And make sure there isn’t any chance that the company might have just thought of the same thing. I heard a story recently of someone flying off the handle because they saw an article in an RPG magazine that closely matched ideas the person had posted to a public message board. It turned out that the article had been turned in to the magazine before the ideas had been posted. So remember: parallel development does happen.

Honestly, very few of the RPG companies out there steal material. Most of them are reasonably professional. You can see from the above points why it’s easy for someone to believe that they’ve been stolen from when they haven’t necessarily, but it does occasionally happen. Protect yourself, and be careful. Try not to go nuts if someone does use a couple of your ideas, though. It isn’t the end of the world. Find a new idea and keep on writing. The best revenge against a company that really and truly steals your copyrighted work is to approach the problem legally, and then go ahead and show them up by writing something better.

A few links relevant to copyright issues:

A couple of books that include copyright and legal information:

This article arose out of a conversation with Kym Alishahi. Thank you for the questions! Jeffrey Howard fixed a few of my facts and did editing detail.

Posted in Gaming, Writing

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