The licensing and legal challenges facing third-party tabletop RPGs

At the turn of the millennium, premiere tabletop publisher Wizards of the Coast purchased the rights to Dungeons & Dragons from a struggling TSR. Ryan Dancey, one of Wizards’ vice presidents at the time, marked his stewardship of the popular tabletop RPG with the creation of the Open Gaming License. This collection of legal copyright permissions opened the doors to third-party publishers who wanted to create their own books for the new 3rd edition of D&D, or the d20 system more broadly.

D&D’s publisher dropped a surprise announcement of the 3.5 edition three years later, though, efficiently sweeping would-be third-party competition into obsolescence. Disillusioned, designers snatched the OGL’s system reference document (SRD) — a legally irrevocable breakdown of D&D’s rules with all the names and numbers filed off — and ran. This period of experimentation would eventually germinate forum culture in the late aughts, leading to a blooming of indie RPG designers and their now seminal games: D. Vincent and Meguey Baker’sVineyard dogsAnd Apocalypse World, John Harper’s Lady Blackbird, Jason Morningstar and Steve Segedy’s Fiasco, and Emily Care Boss’ Romance Trilogy.

Fast forward 16 years and two editions, and Wizards of the Coast complemented the launch of the new D&D 5th edition by introducing a digital marketplace where anyone could create and sell their own games and supplements. Having learned from brand-conscious parent company Hasbro, Wizards positioned the Dungeon Masters Guild agreement not to protect the mechanical identity of the game but that of its IP — Forgotten Realms, Beholders, Drizzt Do’Urden and Planechase could only be used inside this new walled garden.

Skip forward another six years, and tabletop RPGs have enjoyed the largest period of growth and popularity in the relatively young medium’s lifespan, even accounting for COVID-19 pandemic disruption. Other companies have followed in Wizards of the Coast’s wake by building fences around their own gardens, many of which are studded with huge media licenses. Instead, indie music has shifted to permissible SRDs as well as open spaces for collaboration. Dancey’s legacy has created two diametrically opposed paths tabletop RPGs might walk, and we are fast approaching the fork in the road.

Image by Raluca Marinescu/Quill And Cauldron

Life inside the garden’s walls

Matthew Whitby has spent nearly all of his career inside the Dungeon Masters Guild, a digital storefront owned by Wizards of the Coast where creators play in the company’s officially sanctioned fantasy sandboxes. Designer behind popular RPG supplement Doomed Forgotten Realms: Sword Coast GazetteerHe speaks highly of his past experiences but also says that he admires the work of independent designers. While he would like to make his own RPGs but admits that the idea of leaving Guild makes him nervous.

Throughout his interview, Whitby was astonished by this contrast. Whitby first claims relinquishing creative freedom isn’t so tough a pill to swallow. He finds the community within the Dungeon Masters Guild kind and supportive of fellow creators, providing helpful tools and information — including pointing out legal pitfalls. While he acknowledges that RPG material beyond their garden walls is not being sold by the same community, he also says that it’s more enjoyable to have that kind of support than what he feels is a mercenary environment on DriveThruRPG.

The creators of adventure modules and campaign settings can make more money by publishing them on DriveThrueRPG. This site cuts 30% off the exclusive listings, 35% off the rest, and the Guild has a large number of members. D&DThe player base. In the Guild, you don’t have to contend with Mörk Borg supplements, Cyberpunk Red missions, and the content cheekily advertised for “the world’s biggest tabletop game.” Instead, you can sell directly to people for whom “D&D” and “tabletop RPG” are synonymous.

Whitby says he doesn’t think Wizards of the Coast is interested in actively cultivating its garden, though. He mentions the Guild’s sporadic promotion of titles on social media catching creators by surprise, even though the act can turn a middling launch into a breakout success via spotlight alone. The Guild’s license also prohibits creators from using certain properties, forcing them to choose from among an approved list. Popular alternate settings, such as Spelljammer (or Planescape), were not included in the list after Wizards of the Coast released its official books.

“A lot of people say, ‘I’m developing this thing. I want it to go on the DMs Guild.’ But if it doesn’t become one of the approved settings, we immediately have to file off the edges or give it a quick paint job for DriveThruRPG instead,” Whitby says. “I imagine the official announcement [of Spelljammer’s return] brought a lot of sighs of relief from project managers.”

Chris Bissette is the creator of solo journaling, a game that has become wildly popular The WeepingRarely, someone comes from the Guild garden but leaves to start their own game. Because they know that it is possible for Wizards of the Coast to endanger the community of Guild founders trying to create one, they are supportive of their efforts to support them.

“What happens to the stuff that people have written and published on it? What happens to the people whose careers depend on the DMs Guild?” they ask. “It’s like being a developer whose apps are only available in the Apple store. If Apple shuts down its Apple store tomorrow, what happens? You’re fucked.”

Bissette expects the launch of D&D’s next iteration — codenamed “One D&D” — to sound the death knell for Dungeon Masters Guild as Hasbro consolidates digital toolset D&D Beyond and other assets closer to the corporate chest. They point to the shuttering of first the WotC forums and then the online content subscription service D&D Insider as proof that the company has a history of leaving scorched earth and marooned creators in the wake of D&D’s iterations.

Polygon reached Wizards of the Coast several times in an effort to get involved in the story. However, the company did not respond to our request.

Whitby agrees with Bissette’s prediction with an odd bit of optimism in his voice, saying “it was good while it lasted” and that the resulting wave of creative talent will find new homes and fresh success beyond the garden walls, whether that’s on Itch.io or any of the growing number of crowdfunding platforms. He’s leaving design for now to finish a Ph.D., but Whitby talks excitedly about one day venturing into indie design — a prospect that was once an “overbearing fear.” When peering into the future, Whitby sees an open gate, wide fields stretching beyond.

Image: Modiphius Entertainment

Green-thumbed publishers

Chris Birch discusses Modiphius’ future plans with an eager cast to his eyes. Co-founder and chief creative officer of the tabletop publisher responsible for the Fallout, Star Trek, and Conan RPGs, along with the 2d20 system, he is on the cusp of launching the World Builders program in hopes of stewarding fledgling designers towards his company’s license and system.

Modiphius issued two licenses and an SRD, just like Cortex and Fandom did in 2020. These were for commercial and community projects that it created through its system and related properties. Anybody interested in creating adventures Achtung! Cthulhu or any other first-party RPG will be able to list it on Modiphius’ World Builders hub, ostensibly for other fans to enjoy. Those looking to profit from their art can list their creations anywhere but aren’t able to directly reference any of the company’s worlds or settings. As Cortex did, systems that are new become part of a common resource the whole community has access to.

“The World Builders is the same as the Dungeon Masters Guild,” Birch says before explaining additional plans for those who choose the commercial route. Modiphius will host seminars that aim to teach young game designers how to be successful in exchange for 10% royalties on major sales. Modiphius will provide guidelines consultation throughout development, as well as marketing and promotion support after launch.

“If you want to stand outAnd do something a bit different, and you happen to like our system, we’re going to earn our keep in the cut that we take by really helping you become more successful. We hope so, anyway,” Birch says.

The prospect is sure to entice more than a few designers hoping to become the next Free League — the Swedish publisher that recently lifted up Mörk Borg and Space Death stretched its own wings under Modiphius’ guidance. Birch considers that having a direct influence on shaping the next class of tabletop designers is the most important thing he can do in his current position. He understands that many will be turned off by the system alone due largely to the granularity of its mechanics and strong franchise media ties — “We’re very Marmite: people both love 2d20 and hate it” — but hopes the success builds a thriving community around the company’s redoubled dedication to its own settings and game worlds.

“I would fully expect someone to drop us at some point, once we do too good of a job helping them. But that’s the whole point,” Birch says. “That’s why companies want to build these programs so that they’re the linchpin between that community. They want the community to come to them, not doing it on their own.”

Unfenced future

Smaller designers are active in building community around these systems, as anyone who is familiar with the Indie Tabletop Scene will confirm. The Bakers’ Apocalypse WorldThere have been many Powered by the Apocalypse video games. The pair did not attempt to license their iconic creation. SRDs are often found in independent games and read as political statements on capitalism’s art and creation. For example, Monkey’s Paw Games ends all of its SRDs with “Be cool: I don’t have lawyers,” while many others have adopted a broad “bigots and Nazis can’t use my game” edict.

Developers of Mörk BorgThe launch of the fan-creation magazine, curated by a group called “Fan Creation Zine”, arguably put the permissible licence in a greater public spotlight Mörk Borg Cult soon after the game’s 2019 publication. Creators Stockholm Kartell, Ockult Örtmästare Games, and Free League accepted RPG supplements from — and paid a flat rate to — zealous fans who were already creating their own supplemental material. Johan Nohr claims that the open license resulted in over 1000 related titles just within one year.

“The easiest way was to just open it up completely and say, ‘The game is yours. Do whatever you want with it.’ As long as it’s not bigoted bullshit (or NFTs), go for it,” Nohr tells Polygon via email. “It’s almost like we invited people to play the game with us. Co-own it. It’s like playing. [Mörk Borg] together. Although there isn’t one who can control the outcome, it creates a terrible, beautiful mixture that we couldn’t have imagined. If two people could make a neat game, imagine what a thousand could do.”

Image by The Bakers

All of the independent designers who spoke for this story said they prefer artistic freedom to collaboration over IP protection and legal safeguards. According to them, the industry should be like an amalgam of atoms that bounce off each other, and trade mechanics, ideas, and then transform into new compounds. This is what they see. Mörk BorgRecent developments Mothership have shown, this hands-off method of fomenting a community can be as viable as Modiphius and Cortex’s dreams of the next Dungeon Masters Guild.

“If you’re not going to follow in the slipstream of D&D, you need to create your own slipstream,” says Chris McDowall, creator of Into the Odd. He is optimistic and cautiously hopeful about the future. There is a wide gap between them, and the way they approach licensing may be indicative of this split.

“D&D is almost a lifestyle brand at this point,” Bissette says. “It is a subset of tabletop role-playing, but it’s separate from tabletop role-playing and, by and large, the people who play 5th edition D&D want to play it only.”

Spencer Campbell is an artist who has led the latest wave of tabletop design experimentation using his LUMEN System. It draws heavily from looter-shooter videos games such Destiny. Warframe. He calls D&D “orthogonal to the RPG concept” because Wizards of the Coast has corporatized the art of play and collaborative storytelling to the point of prioritizing brand sanctity over anything else.

“I can’t imagine that suddenly we all just decide,In fact, it is essential that we defend both our assets as well as our games,” Campbell says. He ridicules the idea that people stealing games is enough of a threat — or even a real one — to cut up the creative commons with litigious walls and privacy fences. “The more we pool our knowledge and our resources together, the more likely we are going to succeed.”

Bissette thinks Modiphius and Cortex’s model, inspired so heavily by the Dungeon Masters Guild, misses the point of community building. They can’t see licensed games, which lie at the heart of all of these newer walled gardens, creating the same loyalty and respect as Harper’s Blades in Dark or Melsonian Arts Council’s Troika!

Independent designers are looking toward a future divested from the weight of D&D. The independent designers believe that the massive tabletop RPG and lifestyle brand will continue to roll under their own inertia. They are able to stop comparing themselves with Hasbro’s continued success and worrying about how they will capture a part of the fan base. It will make their job easier. SRDs and whatever form they take may offer fledgling artists a path through the open field, rather than fences around private property.