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How can Necromancer Games release 5E D&D material without a license?

Artwork mockups from Necromancer Games' new Kickstarter.
Artwork mockups from Necromancer Games' new Kickstarter.
Necromancer Games

Necromancer Games has returned with a Kickstarter to support 5th Edition Dungeons & Dragons, with plans to publish a monster book containing over 200 monsters, a series of adventures, and a book of hundreds of new spells. As of today the Kickstarter is currently at $31,298, well over its $15,000 goal with 54 days to go. But how can the newly resurrected Necromancer Games support 5th Edition when Wizards of the Coast has yet to release an Open Game License -- or any license at all -- that allows third party publishers to produce content compatible with the latest iteration of Dungeons & Dragons? Matt Finch explained how on his blog:

Amurayi, you're asking if this project is "legally approved by WotC." I could give the surface answer and say, "Yes, it's done under a license (the OGL) that WotC approved long ago." But I think your real question is whether WotC has taken a look at a specific proposal from us, and said, "Go for it. Pre-approved." The answer to that question is, "they haven’t, and we haven't asked them to, because to the best of my knowledge they haven't ever done specific project-approvals like that with third-party publishers." I think you're also asking what guarantees you have that the material will be compatible. Once again, the surface answer is: "No more guarantee than people got with similar (OGL) products during the old days of d20-style publishing." As then, you have to look at the people involved, their reputations, past products, etc., to figure out what kind of job they are likely to do. In this case, because there's not a specific license addressing our use of 5th Edition material, Steve Winter and I will make some changes to copyrightable names/labels when it’s required to identify an underlying rule.

Necromancer Games isn't the first Kickstarter to make the leap to support 5th Edition without any guidelines on how to proceed. Chris Dias' Kickstarter for a reboot and expansion of the sci-fi/fantasy mashup setting, Amethyst, brazenly committed to 5th Edition, listing D&D Next as one of the rules systems the game will support, including 4th Edition, 13th Age, Fate Core, Pathfinder, and Savage Worlds. In the FAQ, the answer to "How can you support D&D Next?" was:

DEM has been part of the alpha playtest and the original friends & family playtest earlier this year for D&D Next. We've been in contact with a core member of the D&D Next development team and we are certain that OGL and/or SRD support will be part of D&D Next's philosophy. We are more confident of third party support for D&D Next than we were for 4th Edition, and DEM was the first to sign onto the GSL back in 2008.

The legal argument from the Necromancer Games' side appears to be that thanks to the Open Game License, any company can essentially recreate a compatible D&D rules set. Or to put it another way, Wizards of the Coast can't make a legal claim to the game system itself, but rather trade dress. Finch explains:

One example being "witch bolt" to "witch-fire bolt." One benefit to working with lawyers on this is that it allows us not to "overdo" changes. If it needs to be changed, we'll change it, and do so as little as possible. That's one of the ways attorneys earn their money. Will it read exactly like it came from WotC? Nope, there will be a number of tweaks like the one above, which people have already seen in our free Wizards Amulet module. We are an intellectual property company; we absolutely respect intellectual property rights. But ultimately, this isn't an issue of "legal approval." There’s not a single rubber stamp that says, “Approved.” In actuality, there's a whole bundle of things that one can or can't do, depending on what you have licenses for and what you’ve produced yourself. In the case of the OGL, we can refer to material from the System Reference Document, but cannot indicate compatibility with a trademark (which is why we say the material will be compatible with "5th Edition"). We’re not hiding anything or being evasive with that, it’s simply what the license requires. There will be some slightly changed names of things, but we’re all smart enough to figure those out, even if they get a bit more changed than “witch bolt” to “witch-fire bolt.”

In the end, Finch understands that these compatible tweaks will not be for everybody:

If you need absolute one-to-one correspondence of all the game terms in order to enjoy the product, you will have to wait until WotC creates a third-party license to use 5th Edition terminology, or stick to WotC products exclusively. For some people, that’s absolutely an issue, and we understand and empathize with it. But WotC has the right to set the rules for most of this material, and we are following those rules. I hope this answers the question.

If the support for the Kickstarter is any indication, plenty of fans are confident in Necromancer Games' approach.