Much to the delight of Dungeons & Dragons (“D&D”) fans, a new animated fantasy show was released on Amazon Prime in late January and has taken the internet by storm. The Legend of Vox Machina is based on the popular web-series Critical Role, which featured renowned voice actor Matt Mercer guiding his troupe of talented voice actor friends through a live-play D&D campaign in the fantasy world of Exandria.
Vox Machina’s story of success highlights how properly leveraging copyright law, through derivative works, licensing, and fair use, can truly be the “rising tide that raises all ships” in stimulating creativity and innovation in board game entertainment. As a general matter, copyright protects original works of authorship that are fixed in a tangible medium of expression. As applied to tabletop games like D&D, a game’s mechanics and rules – the “heart” of a game – are not copyrightable.
However, other aspects may qualify for copyright protection, such as the artwork on the box, cards, and other components. Role-playing games (“RPGs”) like D&D generally have extensive text describing various classes, items, spells, and other elements, and this text can be protectable as a literary work under the Copyright Act. Hasbro, which currently owns the D&D franchise, owns registered copyrights in hundreds of books, modules, guides, maps, and other materials. Fictional characters in D&D are also copyrightable if they have “distinctive character traits and attributes” and are “sufficiently delineated to be recognizable as the same character whenever it appears.”
A game’s copyright protection prohibits others from copying the game’s protected elements, which extends to both literal copying and reproductions that are substantially similar. It also grants the rights to distribute and sell the game, prepare derivative works, and publicly perform/display certain aspects of the game. Many mass-market publishers have created game expansions, new editions, or revised editions of classic games that fall within the derivative work right.
One defense to copyright infringement is the “fair use” doctrine, which “permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Section 107 of the Copyright Act lists four factors to be considered in “determining whether the use made of a work in any particular case is a fair use:
(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.”
Although not expressly listed as a factor, courts also consider whether an alleged fair use is “transformative” in nature.
Fair use is what allows online content creators to create content – such as YouTube videos, podcasts, etc. – that is centered around various copyrighted works, much like Matt Mercer and his Critical Role cast. Additionally, the Vice President of Wizards of the Coast (“Wizards”), owner of the D&D IP and now a subsidiary of Hasbro, saw the commercial potential early on in allowing their customers and competitors to license their works and create licensed products that are compatible with the D&D game system. In fact, D&D’s Open Game License (“OGL”), originally released in 2000, allowed third parties to create, modify, and publish content based on the basic rules and system of D&D royalty-free, provided that a copy of the license is included with the content. RPG historian, Shannon Appelcline, cites this event as a catalyst in the RPG industry, as it led to a boom in numerous publishers producing their own D&D-compatible supplements in the early 2000s. Indeed, Pathfinder, a massively popular RPG that grew to become one of D&D’s greatest competitors, was based on Version 3.5 of D&D under the OGL.
Today, Wizards lists its fan-content policy prominently on its website, which has allowed many content creators, including the cast of Critical Role, to create YouTube videos, podcasts, etc. within the scope of this policy. Additionally, there is a vibrant community of fans who “homebrew” their own D&D-based content. Wizards not only implicitly allows “homebrewing,” but also sometimes puts its seal of approval on content through the Dungeon Masters Guild program, making it part of the official D&D canon. One need look no further than Matt Mercer, whose world of Exandria was officially incorporated into the D&D canon in The Explorer’s Guide to Wildemount, solidifying his status within the D&D mythos.
Today, D&D’s influence in popular culture continues to expand, due in large part to Wizard’s leveraging of copyright law to elevate its intellectual property. Other game manufacturers should consider doing the same.
 17 U.S.C. § 102(a).
 Kevin P. Hales, A Trivial Pursuit: Scrabbling for a Board Game Copyright Rationale, 22 Seton Hall J. Sports & Entmt. L. 241, 242 (2012).
 See Tetris Holding v. Xio Interactive, Inc., 863 F. Supp. 2d 394, 404 (D.N.J. 2012).
 See Copyright Office Compendium at § 714.
 Hasbro, Inc. v. Sweetpea Entmt., Inc., No. 13-CV-3406, 2014 WL 12586021, at *1 (C.D. Cal. Feb. 25, 2014).
 D.C. Comics v. Towle, 802 F.3d 1012, 1019-21 (9th Cir. 2015).
 17 U.S.C. 106(1).
 Daniel J. Schaeffer, Not Playing Around: Board Games and Intellectual Property Law, Landslide 40, 43 (Mar./Apr. 215).
 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.05 (2020).
 17 U.S.C. § 107.
 See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994)
 Wizards of the Coast, Open Gaming License v1.0a, available at http://media.wizards.com/2016/downloads/DND/SRD-OGL_V5.1.pdf
 Wizards of the Coast, Fan Content Policy, available at https://company.wizards.com/en/legal/fancontentpolicy.
 Wizards of the Coast, Product Overview – Explorer’s Guide to Wildemount, available at https://dnd.wizards.com/products/explorers_guide_wildemount.