Legal question, regarding paid games using marketplace material

In the marketplace, I read that the license is for "personal use only".

That is, to be used personally, not for business purposes.
At the same time, there are plenty of examples of users that use this material professionally for business purposes.

I ask for a clarification. Are we allowed to use the purchased material for business purposes?

Speaking for myself as a marketplace creator, I don't mind at all. The monetization of paid games is typically small enough that it may as well be called a personal use. If you're worried about a particular artist, you can typically find contact information on their creator page (click on "author" when you're on a map pack's page) to reach out to them and ask, or give them additional support via Patreon or something similar.

The personal use clause is largely meant to stop people from using the maps in publications like adventure modules or other game projects sold publicly.

I am more interested in  what the rules actually say.

(Though it is nice that you as are flexible as a creator)

     I would like an official response to this question as well.

This is actually a fantastic point and I'd love clarification on this as well. I've previously had 5 games a week on this (all unpaid and homebrew, so I know this doesn't apply to me). However, if someone was getting paid, say, £5 (yes, I'm British) per player with an average of 4 players per game, that amounts to £100 per week. So, is that still personal use or has that moved into business use? Where do we draw the line? I think an official response to this is needed.

Considering Paid game DMs tend to buy more stuff from the marketplace than F2P DMs (having more cash to do so, improving their business model with better assets over simple fandom) I can't see any issues. Also I think this should be in another forum.

I agree with Munky and Commander Dulton that permitting this kind of use is a good thing because it produces more revenue for Marketplace Creators and Roll20. It also boosts the hobby overall by allowing for streaming and paid game sessions. My concern is that it does not seem clear that streaming or running paid game sessions that include content solely licensed through the Marketplace is permitted based on the current text of the Terms of Service and Privacy Policy and the Marketplace Asset EULA.

Commander Dulton, I've cross-posted the issue in what seems to be the most appropriate forum to raise this question.

If my campaigns were being used, I'd certainly like the credits file to remain visible to everyone as a minimum.
Where it was streamed, credit being included in the video notes you see on YouTube and Twitch, would also be great.

As a Marketplace Creator, my thought is that the paid DM/GM is being paid for their time and effort, and while they might be utilizing my product that they already paid for, they are not reselling it. Sort of like how an Uber driver can use a Ford Focus to conduct business without paying Ford, or me using a Logitech mouse to make content without needing to pay Logitech.

@ B Simon Smith

I would say that the key factor is how directly tied the product is to the service provided.
You can buy a Ford Focus to perform the job as an Uber driver, but any car would do the job.
Same goes for buying a mouse.

This is like using a certain tile for the dungeon floor….you can probably replace it with another without much difference to the game.

If the product is central to the service though.

If I buy the script for star wars in a book store for 20$ and start performing it on broadway. Well,  Lucasfilms probably want some money before I get to do that.

...and it really is not sufficient to say "well I paid for it in the book store".
No-one will, however, care if I read it aloud for friends and family

-Similarly, if I buy Hoard of the dragon queen, no-one cares if I play it with my friends, or even random people on the WWW.

But, if I start up a company, buy the same product and play with 4 groups for 10$/week/person.

To reflect back to the start. 
If I buy a copy of Harry Potter and the order of the phoenix, and use it as a prop in a theatre adaptation of  the neverending story, the author of the book probably cannot stop me. 

- The book isn't central to he product. I could probably replace it with Tolkien, or any other well known fantasy writer

Hello all, 

I have moved this thread to the Specific Use Questions & Macros forum. 

Additionally, I have passed this inquiry along to the devs. Once we have more information, we will let you know. 

Thanks.

"Orr Group is not responsible for your use of the assets in any way that violates the rights of the providers."

This sentence all but says that roll20 does not take responsibility for policing how people use marketplace content. If the person or persons putting forward the content, be it WotC or a smaller creator, feels the assets they created are being misused, they would be the ones who would need to initiate action. That action would then need to be against the offending party. 

That is how it reads to me anyway. Also, there isn't anything in any of the above that leads me to believe that either streaming or getting paid to DM is against any EULA as you are not reselling/reproducing the IP itself in full. As far as artistic license goes for those streaming video, again it defaults to the artist to take action at that point. 

Thank you for the update Dragon Dreamer.

Since the Devs are already informed of this thread, here's an example of another type of issue I am surprised is not addressed by the Terms of Service and Privacy Policy or Code of Conduct:

Is the consent of every player involved in a game necessary for a GM to stream the game?

Does the GM need to inform the players when streaming?

Is the consent of every player and GM in a game necessary for a player to stream a game?

Does a player need to inform the other players and GM when streaming?

I often wondered the same thing @skylar Dash. However, i don't think it falls under Roll20 to solve that problem, that would be a DM/Player issue, and i for one wouldn't want roll20 to come into play. The same reason i wouldn't want Twitch or Youtube to be involved.

Skylar Dash said:

Thank you for the update Dragon Dreamer.

Since the Devs are already informed of this thread, here's an example of another type of issue I am surprised is not addressed by the Terms of Service and Privacy Policy or Code of Conduct:

Is the consent of every player involved in a game necessary for a GM to stream the game?

Does the GM need to inform the players when streaming?

Is the consent of every player and GM in a game necessary for a player to stream a game?

Does a player need to inform the other players and GM when streaming?

Linking a duplicate thread here: 

https://app.roll20.net/forum/permalink/7695221/

The Narrator said:

"Orr Group is not responsible for your use of the assets in any way that violates the rights of the providers."

This sentence all but says that roll20 does not take responsibility for policing how people use marketplace content. If the person or persons putting forward the content, be it WotC or a smaller creator, feels the assets they created are being misused, they would be the ones who would need to initiate action. That action would then need to be against the offending party. 

That is how it reads to me anyway. Also, there isn't anything in any of the above that leads me to believe that either streaming or getting paid to DM is against any EULA as you are not reselling/reproducing the IP itself in full. As far as artistic license goes for those streaming video, again it defaults to the artist to take action at that point. 

I understand that Roll20 does not take responsibility for actively policing the use of third party intellectual property assets within the Roll20 platform.

I do think it is reasonable to expect a clarification of whether or not paid Roll20 GMing using marketplace content is within the scope of use permitted by the Marketplace EULA.

Currently, I'm not sure whether many community members are able to run paid campaigns using marketplace content because:

(1) Detecting intellectual property violations within private Roll20 game sessions is usually somewhere between extremely difficult and impossible for third-party intellectual property owners and it is not necessarily worth their time and resources to take action against small time operators when it is detectable (such as in LFG posts for paid campaigns using published modules),

or

(2) Paid GMing using marketplace content is acceptable use within the scope of the Marketplace EULA.

I think it is fair to say that, unless otherwise stated, you do not have the legal right.

If we look at other intellectual properties for performing arts:
Buying a script/CD/DVD  does not give you the rights to perform it professionally.

I am surprised that people, claiming to be professional, have not bothered to find out before charging for their games.

By doing so, they have risked the existence of a plattform where many of us have invested a good deal of money, by risking a lawsuit for enabling this.

Jens F. said:

I think it is fair to say that, unless otherwise stated, you do not have the legal right.

If we look at other intellectual properties for performing arts:
Buying a script/CD/DVD  does not give you the rights to perform it professionally.

I am surprised that people, claiming to be professional, have not bothered to find out before charging for their games.

By doing so, they have risked the existence of a plattform where many of us have invested a good deal of money, by risking a lawsuit for enabling this.

This is YOUR (meaning you, as in Jens F.) own personal speculation and you are making a blanket statement based on that.

There is NO legal risk to the platform's existence. At all.

IF there was any risk to anyone, it would be solely to the person or persons running the game. What it would take would be the creator or creators (of the marketplace content) to attempt to get the person or persons (Assuming the DM because they are the ones getting paid) to stop. Meaning the creator of the content would need to take the PROPER legal action against that person. 

In short, the ONLY one who would be at risk of lawsuit would be the individual person who would be running any kind of paid game. This is only IF the content creator/owner (i.e. WotC or other marketplace creator)  is upset that said individual is doing so and takes action. 

I could talk about the OGL and the SRD again but I won't. A simple google search around those should show you them, what they are and what they mean.

There is nothing that I am reading in any of the Roll20 EULA that makes me think that paid DMing or streaming of games violates it. There is no reproduction of the product, resale or mass distribution, etc... of any kind when you do either. But to be clear, (this prior sentence) is my OWN personal take on what I read.

Using a map in a Roll20 campaign as a paid DM is no different than printing that map out for use on your dining room table in your own home and charging players for running the game for them.

Here's the closest thing I've been able to find to an official position on paid DMing from WOTC:

“It’s a new trend, and we’re aware of it,” says Nathan Stewart, vice president of the Dungeons & Dragons franchise at Wizards of the Coast, which has published the game since it acquired the original publisher, TSR Inc., in 1997. “The idea that people are making a living being a professional dungeon master is cool and mind-blowing.”

I found this quote in multiple online articles. Here's one source: https://www.bloomberg.com/news/features/2019-07-08/how-to-be-a-professional-dungeons-dragons-master-hosting-games

Here's something interesting I found on intellectual property enforcement from a bar-certified lawyer specializing in intellectual property:

"

I’ve always wondered how some of the more popular D&D 5e podcasts have been permitted to continue. Are they limiting themselves to the SRD? Probably not in all cases. Things like beholders…those are unique D&D IP.

I think there has to be an element of “WOTC likes the publicity,” and that this “free advertising” causes a lack of enforcement by WOTC. But if that’s true, that would also have the effect of watering down their IP rights.

You’re essentially right. WotC wants to encourage people to buy their products, and these podcasts are a valuable (and free) marketing engine for them. There’s not much danger of WotC’s IP rights being “watered down.” As long as it’s clear to the general public that DUNGEONS & DRAGONS and related trademarks are owned by WotC and are not generic terms for categories of products, their trademark rights will remain strong. WotC does, from time to time, go after parties that it sees as infringing on their rights. They’re not obligated to shut down every podcast – even if it’s arguably infringing – in order to retain their IP."

So another possibility is that my use of the Baldur's Gate: Descent Into Avernus module for paid GMing would be a use that WOTC could technically take action on but would countenance because it furthers WOTC's business interests and the "vice president of the Dungeons & Dragons franchise at Wizards of the Coast" thinks "the idea that people are making a living being a professional dungeon master is cool and mind-blowing.”

Sorry to be a wet blanket, but unless you are a bar-certified lawyer specializing in copyright, this is all useless speculation. As laymen, we can only say what we think the law is or should be. Roll20 has been made aware of the of the question and is likely utilizing their legal counsel (which takes time). Until we hear an official answer, this is an idle endeavor.

keithcurtis said:

Sorry to be a wet blanket, but unless you are a bar-certified lawyer specializing in copyright, this is all useless speculation. As laymen, we can only say what we think the law is or should be. Roll20 has been made aware of the of the question and is likely utilizing their legal counsel (which takes time). Until we hear an official answer, this is an idle endeavor.

I think it is important to make sure all the related legal issues around use cases for marketplace content that are currently unclear to the community are clearly articulated since we have this opportunity to get official clarification from Roll20 and Roll20's legal counsel.

If nothing else, this discussion has not been idle because it has demonstrated that different community members have different interpretations of the the current legal documents provided to the community.

keithcurtis said:

Sorry to be a wet blanket, but unless you are a bar-certified lawyer specializing in copyright, this is all useless speculation. As laymen, we can only say what we think the law is or should be. Roll20 has been made aware of the of the question and is likely utilizing their legal counsel (which takes time). Until we hear an official answer, this is an idle endeavor.

Well, of we are comparing our qualifications. 

(Though it is a bit too add hominem for my taste)

I have a 3 year theatre education, where we often worked with the practical handling of intellectual property.

Apart from that, legalities are included in my university studies of e-service development. 

My true passion however is in the linguistics, so if anyone wants to run some legal-latin, it would make my day.

With this background, I feel comfortable making practical general statements., though I admittedly cannot speak more case-specificaly.

Please state your own qualifications before writing any further. 

Well, you're more qualified than most. I wasn't trying to shut down the questioning, though. Questions are important. It was armchair interpretation that I was saying was pretty pointless.

Ok, but what are your qualifications?

I',m sorry, Jens, but if you did have any real understanding of this issue, you wouldnt be blatantly fearmongering with statements like this:

I am surprised that people, claiming to be professional, have not bothered to find out before charging for their games.
By doing so, they have risked the existence of a plattform where many of us have invested a good deal of money, by risking a lawsuit for enabling this.

Setting aside this alarmism, lets look at the actual situation.

You should understand that from an IP owners POV, there is absolutely no difference between a streamer running a game of (say) D&D using free products, and running a game using marketplace products they have bought on  the marketplace. There is also no difference from the IP owners POV from a the streamer charging his players, and not charging his players: the thing that the IP owner cares about, is the transmission of the IP content. The streamer - whether charging his players or not - is 'performing' that product in public (and potentially making money through ads).

The whole Let's Play model is the potential issue for IP owners. Not what specific content they bought on the marketplace. Because lets face it, the streamers are always using some bought content: even if its only a D&D5e rulebook. 

You shouldnt be concerned about whether individual marketplace owners might sue, but whether Wizards would sue anyone running a D&D stream - because they are all using Wizards IP.

Now if this ever came to court (which just seems vanishingly unlikely, given how small the rpg industry is, and how rpg companies want people to be playing their games), I'd hope that the courts would recognise that roleplaying is not like theatre, and an rpg adventure supplement is not like a play being performed in the theatre. I think they would, but you never know.

Luckily, it seems very unlikely that this will ever happen. 

@gigs
Well I wouldn't actually argue against any of this in general.

There is (as you say) no difference in using paid/free product for streaming.

In some cases, e.g. streaming, wotc have stated that they accept it, as long as it is open to everyone without any payment.

If it would become a legal case:

I agree that a legal case is unlikely for the simple reason that it would be bad PR. 
It was tried (and pretty much failed) by the movie and music industries.

However...
In those cases, it was mainly the platform, rather than the individual users, that ended up in court. E.g. piratebay
-thus my statement about the risk.

More likely, if they perceive roll20 as a threat, they could withdraw their content from being sold here. 
-A competitive disadvantage that might kill the plattform in the long run.

Anyway

In the long run, I imagine that an entirely different model should be in place for DMs (paid or not). 
The optimal would be subscription-based, rather than  purchase-based.

Apart from being a more modern business model, it has the advantage that you can be sure that professionals use an updated product range.

This is good for marketing.

-For example, if wotc wants a focus on Baldurs Gate in their marketing, then they want you to mainly play those games and not the older material.

As it is now, it costs money to buy new material, so it is economically better for the DM to play older, already purchased, modules. 

Jens F. said:

Ok, but what are your qualifications?

None whatsoever. That's the whole point.

This post should be named "How to make a problem out of thin air"

Danny C. said:

This post should be named "How to make a problem out of thin air"

Now that i have qualifications for!

This is not specific legal advice.  As a bar certified attorney with a practice including intellectual property, I don't think Roll20 will be able to give you a definitive answer to the question.  It probably was not foreseen or taken into consideration when their original licensing agreements with content creators were entered into and thus most likely depends on interpreting each creator's original terms.

That said, from a Roll20 standpoint everything appears to hinge on this phrase: "We have licensed these assets to allow you to use them to create non-commercial works in a personal setting."

The big question is whether merely playing a game while using unmodified assets is creating anything.  If you use various assets to make a custom map, you've created something.  If you just run the Curse of Strahd module, have you created anything?  "Personal setting" also comes into play depending on how you parse the sentence.  Let's assume Roll20 counts as a personal setting since it would be awkward for them to sell you assets you couldn't use on their service.  Does the setting change because you charge a player to participate?  Does the setting change if you broadcast your game?

I can't give you an answer to any of those questions.  I'm not sure Roll20 can and I suspect even some publisher's licensing agreements don't cover this.  But keep in mind you've asked two very different questions in this thread.  The first is whether you can use marketplace content in games you charge players to participate in.  The second question is, regardless of whether you charge your players, is can you record, stream, or otherwise broadcast that content.  I would venture the second question is the more problematic one.  It involves redistributing those assets way beyond the Roll20 setting they were originally licensed for.

Keep in mind if you want to be certain, you can contact the creator directly and ask for permission to use the content in your particular application.  

Hello all,

As a friendly reminder, please keep in mind that all discussions on Roll20 should always maintain a tone of respect and civility.

As such, please feel free to discuss the original post. However, please keep it on that subject. 

Thanks!

I would point out that others have been running paid campaigns using WotC marketplace content for over a year now with no action from either Roll20 or WotC.  While that doesn't establish the legality of it, it gives you an indication of their tolerance for this sort of activity.  If they did suddenly decide to enforce any right they have to stop you, you would most likely just get a cease and desist letter.  Assuming you ended it then that would probably be the end of the matter.  No one here has pockets deep enough to make suing them worth the expense.

Given that streaming has been at least partially responsible for the resurgence of the TTRPG community (and thus sales), I don't see them taking action there either unless something particularly egregious or very profitable comes along.

If I had to guess, I'd say the official answer to both would be "No, the license agreement doesn't allow for it but we're not going to enforce it absent an unusual situation so have at it."

keithcurtis said:

Well, you're more qualified than most. I wasn't trying to shut down the questioning, though. Questions are important. It was armchair interpretation that I was saying was pretty pointless.

keithcurtis said:

Jens F. said:

Ok, but what are your qualifications?

None whatsoever. That's the whole point.

Sorry, your post slipped in between mine and Jesse's.I was responding to Jesse's qualifications, not yours. I'm not making any legal assertions, only trying to curtail armchair lawyering. I regularly deal with Intellectual Property issues as a freelance artist working on licensed properties (Babylon 5, Game of Thrones and others). That does not qualify me to make generalizations or draw conclusions on legality of this issue. This is not a contest to see who is more qualified.

Jesse said:

I would point out that others have been running paid campaigns using WotC marketplace content for over a year now with no action from either Roll20 or WotC.  While that doesn't establish the legality of it, it gives you an indication of their tolerance for this sort of activity.  If they did suddenly decide to enforce any right they have to stop you, you would most likely just get a cease and desist letter.  Assuming you ended it then that would probably be the end of the matter.  No one here has pockets deep enough to make suing them worth the expense.

Given that streaming has been at least partially responsible for the resurgence of the TTRPG community (and thus sales), I don't see them taking action there either unless something particularly egregious or very profitable comes along.

If I had to guess, I'd say the official answer to both would be "No, the license agreement doesn't allow for it but we're not going to enforce it absent an unusual situation so have at it."

Thank you for providing your perspective Jesse.

I've been cursed with a Lawful Good nature since birth, so for me this is more about personal ethics than trying to avoid being sued. I know it would be idiotic for WOTC to sue me over this because of economic and business considerations.

I posted this in another thread that was link to this topic, but must of somehow got lost in the process.

https://company.wizards.com/legal/terms
https://company.wizards.com/fancontentpolicy

In accordance to section 13 of the Terms and inconjunction with the Fan Content Policy. Simply put, streaming of WOTC products is perfectly fine as long as you are not in breach of Fan Content Policy section 3 and 4. "Don't put us in bad light, make sure you get permission to use any other content from 3rd parties (i.e music, art work). This extends to the use of Roll20 under their own licence agreement with WOTC.

Paid DM/GMing, is a service and is not distributation or sale of product. This means that what the person is charging for isn't "pay gating" content but it is asking for a tip or donation for their time, only when the person is using branding and selling or distributing the product is it considered a breach of Terms. This is why each paid game must include one of the three different tag lines supplied in the following link
https://app.roll20.net/forum/post/2086083/read-first-posting-to-lfg-and-paid-games.

I have spent some time (6 years to be exact) running paid games on roll20, at local game stores and as a small business as well as setting up multiple channels on twitch and podcasts. I have had extremely long back and forths between lawyers locally and internationally, which has always ended on the note of refer back to the WOTC Terms and Fan Content Policy. This is still a fresh new market of business and doesn't have a specific set of laws yet designed to govern it which makes most discussions speculative at best. 

In regards to using Marketplace content, you would need to contact each individual creator to gain permissions for use, which honestly is pretty simple and most of them are happy to allow use so long as you are not giving away their product. In most cases in which I have looked to use 3rd party content I have reached out the creator and asked of use and been met with a resounding positivity, so long as I give credit where due, have paid for the product and agree to not distribute. 

Vegemite, you left out a not in the second sentence here.

In regards to using Marketplace content, you would need to contact each individual creator to gain permissions for use, which honestly is pretty simple and most of them are happy to allow use so long as you are giving away their product.

so long as you are NOT giving away their product.

For what it is worth, I have been contacted by several people about streaming. I am 100% ok with people using my content in their streams and in their paid games. A small shout out or being given credit somewhere is all I ask. I think it's great that the demand for DM's has allowed them to offset the greater costs that DM's usually face.

I'd like to echo Devin's sentiments, especially as I've been contacted by folks previously regarding the use of my art in their live streams or videos that may be monetized via ad revenue on YouTube.

Speaking on my own behalf, so long as folks aren't repackaging my content and selling it directly, I am generally fine with the use of my art that they paid for in their own paid games and monetized video content.  I should probably look at my Profile page and see if I can provide some clear statement to make it easier for folks looking for express permission without having to wait on a response from me.

Ditto to what Devin and Lorien said.

Happy gaming everyone!

As a content creator, I have had to study some of the rules. 
The only thing I know for certain is that you will not get sued unless you have received a C&D (30-day cease and desist notice) and only if you fail to comply with the notice. 
Now the next part is somewhat speculative, but an educated guess based on past suits and current laws. Changing your use from personal to financial gain can be considered commercial use if someone really wanted to push the issue. Therefore, it could be in violation. However, a company will not usually enforce any violation if they find mutual benefit (such as free marketing) from it. And if they did, again, you would simply get a C&D at first.
My prediction is that they will leave it alone OR (if it continues to grow even bigger) they will add to their licensing stating that you must provide proper credits to the license holder (much like the current license does). As a content creator myself, I would not mind the free advertising. However, it would not be helpful if they never mentioned or displayed who created the content. 
For those interested, this is an blogger that is also an IP lawyer that received a C&D from WotC. He blogs about what is and is not legal: https://gsllc.wordpress.com/author/gsllc/

Also, see very early episodes of Critical Role. They originally posted "found art" and afterward discovered that they could not just do this. Early episodes have long blurred segments where the art used to be.

I’m fine with my content used for streaming sessions if they simply give me and my art a shoutout. It would be nice to see others enjoying my work.

Dragon Dreamer said:

Hello all, 

I have moved this thread to the Specific Use Questions & Macros forum. 

Additionally, I have passed this inquiry along to the devs. Once we have more information, we will let you know. 

Thanks.

Any word on whether an official response is still being formulated and/or whether this issue is on anyone in management's radar?

Skylar Dash said:

Any word on whether an official response is still being formulated and/or whether this issue is on anyone in management's radar?

Dean answered a similar discussion on the Pro forum like this:

Dean said:

^^

You've interpreted it well, Ragrook. Ultimately, Roll20 is here to help enforce creators rights. If streaming, I recommend always crediting work that isn't owned by you - it sets great precedent and the artists will generally love you for it  And if you're ever uncertain, just ask, as you have. Appreciate you taking the time to do so!