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Fair Use in the United States depends upon four factors:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

(17 U.S.C. § 107)

This question is focused primarily on point 4: suppose there is a Use of some copyrighted material that, on its own, clearly (we stipulate) could not possibly have any “effect upon the potential market for or value of the copyrighted work,” but which fills a gap in some other (legally-accessible) Use of the work such that the combination of the two could have substantial effect on the value of the work as a whole. Does the existence of the other Use affect whether or not the first Use qualifies as Fair Use?

The case for this has to do with the Dungeons & Dragons roleplaying game. A substantial portion of the rules for this game (in this specific case, its “third edition”) was released under the “Open Game License” (OGL) by the copyright holder, Wizards of the Coast, as what they called the “System Reference Document” (SRD). This document includes the majority of the text from several books that Wizards of the Coast held copyright for, and because of the licensing, those portions of those books became widely and freely available.

The question here is, given that this SRD exists, must all other Use of the copyrighted material be considered in that light as a result? As an example, a recent answer I wrote on the RPG Stack quotes a table from the Player’s Handbook for this game. On its own, it does not remotely impinge on the value of the Player’s Handbook; it’s literally just a list of numbers, with headers indicating that some of the numbers are “levels” and the others are quantities of “XP” with no indication of what either means or how they are used to play the game. However, most of the Player’s Handbook is available in the SRD—and one of the few things that isn’t, is this table. In theory, this answer fills a major “gap” in the SRD, in a way that could (in theory) have significant negative effect on the value of the Player’s Handbook.

(It’s debatable how important this table actually is—it’s not like it’s hard to make up your own table, or just ignore it altogether and handle the things it’s supposed to be used for in a different manner. Wizards of the Coast, however, indicated that they considered it crucial. For the purposes of this question, let’s stipulate that 1. this table actually is crucial and does provide a substantial value over the SRD, and 2. in the absence of the SRD, this quotation of the table would unambiguously be considered Fair Use.)

So the question is, does my quotation of this table—which is useless on its own—fall out of Fair Use because of the existence of the SRD? Or—since I know we can’t actually answer that question for real without a trial in front of an actual judge—would the existence of the SRD be considered at all in answering this question, or would it be categorically irrelevant? On the one hand, it seems absurd to pretend it doesn’t exist, or that the two might not be used in conjunction. But on the other, it seems even more absurd that, by virtue of deciding to publish substantial portions of their material for free, the copyright holder can limit my rights to quote other portions of it under Fair Use.

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  • I see the close vote for this as seeking specific legal advice. I can see why, but it is not; this is a particular example that prompted the interest, not something I am personally concerned about. The question, for me, is what principles of law are in play here, is there any existing guidance on whether this kind of “context” should, or should not, be a part of the question. I would gladly take feedback on how to ask that question, if any is available.
    – KRyan
    Mar 25 at 19:09

2 Answers 2

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Is it Fair when a Use might affect “the potential market for or value of the copyrighted work” only in conjunction with other material?

Questions in this form never have a clear answer.

"Fair use" in copyright is a multi-factor test that is answered on a case by case basis. No one factor is determinative. You have to take all of the factors together and consider them in a rich factual context. A decision-maker looks at the factors as relevant evidence when determining whether or not there is fair use.

But two different reasonable decision makers could come to different conclusions on exactly the same facts and both decisions would be upheld on appeal. Generally, applications of a multi-factor test like this is reviewed on appeal for an abuse of discretion and not de novo as pure questions of law.

would the existence of the SRD be considered at all in answering this question, or would it be categorically irrelevant?

It would probably be relevant evidence. Generally speaking, all of the facts and circumstances and context related to the creation of the allegedly infringing work is going to be admissible if the lawyers for either party want to present it. But the impact that this would have on the ultimate decision would be more a matter of logic and common sense, viewed in a wholistic "gestalt" fashion looking at the circumstances as a whole, rather than something that could be parsed out individually. Ultimately, "fair use" is an appeal to normative cultural understandings outside the realm of copyright law proper, that is colored by a decision-maker's view of the situation and the spin that the lawyer for each side successfully (or unsuccessfully) get a decision-maker to attach to those facts.

I can imagine circumstances when "a Use might affect “the potential market for or value of the copyrighted work” only in conjunction with other material". Indeed, there is a whole body of law at the intersection of copyright and antitrust laws involving copyrights for industry standards for various kinds of equipment and electronic and digital devices in which those kinds of issues are pivotal.

In the facts of this question, it is far less obvious. Someone who makes a game effectively grants an implied license to use the game rules to play the game, a theory distinct from fair use, because that is the intend purpose of selling rules to a game. The existence of further open source license material further muddies the waters. So there are a lot of interrelated context factors that make a "fair use" defense stronger and an infringement case weaker, in addition to the other factors. But there could be other circumstances that are a lot less muddy where the combination of public domain and copyrighted material could more strongly favor infringement.

Even in this hypothetical, a table from the "Player's Handbook" (I used to play D&D myself and have even been quoted by the New York Times discussing the subject) is going to be a lot more open to fair use treatment than an illustration on the same page, or the exact wording of a paragraph describing what a dungeon master does in narrative form, for example.

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  • OK, and I acknowledge that in the question, and end with “would the existence of [other material] be considered at all, or would it be categorically irrelevant?” I understand that this is just one factor of many, and that ruling on any one factor is not by itself dispositive, and that it’s possible for different people to come to the different conclusions from the same basis. But I want to know if it’s a consideration at all, regardless of how anyone might come down on it. Or if that’s also something that can vary, I’d kind of like to see that backed up somehow.
    – KRyan
    Mar 25 at 22:00
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It’s irrelevant for that factor

The SRD is licenced material. That is, it is fully protected by copyright but permission is given for you (or anyone else) to use it in accordance with the licence - that’s the consideration you provide to create the contract; that you promise to follow the rules.

The licence does not cover other copyright material so, assuming the table is under copyright (game mechanics are somewhat squidgy on that), your use is not covered by the licence. It also can’t be because it’s not part of the work that was licensed. In order to get that information legally, a person would need to purchase the Player’s Handbook so your publishing it does negatively affect the market.

I think your confusion is coming from the fact that your consideration doesn’t involve a monetary component, but that doesn’t matter. The SRD licence is just as binding as, say, a Microsoft 365 licence for which you pay actual cash. If my subscription does not include Access or Power BI, it obviously affects the market if I make a copy of those because Microsoft would have charged me for those. Similarly is the SRD doesn’t include a particular table, it obviously affects the market for the Player’s Handbook that contains it.

However, that is only one factor in the fair use analysis and all four must be considered simultaneously. While the SRD is irrelevant for that factor, it might be relevant for the “the amount and substantiality of the portion used” because, your publication needs to be considered in conjunction with the relevance of the licenced material. The two together might mean that there is a more substantial breach and that might have a greater impact on the market.

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  • The question is about the table having outsize “value” (potential impact on the market) because of the existence of the SRD without it. Without the SRD, the table’s impact on the value of the Player’s Handbook is negligible—real, but very very small, and unlikely to count strongly against an argument of Fair Use. With the SRD, the table’s impact may be greater—but does that matter? This doesn’t feel like it answers my question. I’m not sure why you think I have any confusion about consideration, monetary or otherwise, but I don’t think I do and I don’t think that paragraph clarifies.
    – KRyan
    Mar 25 at 20:57

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