Thoughts on Numenera Licensing

Published October 9, 2013 by in For Gamemasters, For Players

I’ll admit it, I was a little bit surprised by the amount of negativity I heard surrounding the Numenera Limited License after it was recently posted, especially after there was so much positive said about the Fan Use Policy. After thinking on it last night, I decided I should speak up and share some thoughts and info as a happy gamer, content seller, marketing guy, and amateur IP law enthusiast. That said, I am not a lawyer, and I most certainly do not represent Monte Cook Games in any way, so keep that in mind. Also, Rob Donoghue started this discussion rather well, and rather than retread his points, I encourage you to go read his article first, then come back here when you’re done. Don’t worry, I’m not going anywhere.

(NOTE: I’ve posted some updates to this issue at the bottom of the page, too. Be sure to skim them as well, especially as the discussion evolves.)

Let me start off by saying that in the past few months, I’ve learned one thing about Monte Cook: a lot of people love and respect him, and then there’s a group that… doesn’t. That’s fine. You can’t ring everyone’s bell. Me, personally, I’ve had exactly one brief email exchange with him during the Kickstarter campaign, and he was nothing but pleasant. I invested in the Kickstarter campaign not because I was part of the following, but because Numenera sounded like a cool game, and I have a loyalty to cool games. Everything I knew about Cook literally came from the Kickstarter description. I don’t know why that’s important, but I feel I need to say it.

What I guess surprises me is the amount of grief I’ve read on Twitter and various posts about how “horrible” or “terrible” or “restrictive” the limited license is. Specifically, I’ve seen a lot of complaints from other game designers, which I also find really surprising. Mostly because I would expect them to understand exactly why the license was offered up. It’s about brand protection, most specifically. And Cook, due to his notoriety, has a particular stake in protecting that brand, and balancing that with fostering community growth. Not easy to do – sort of like trying to create enterprise open source software. But one of the most important parts has to do with trademarks. As a brand, if you don’t protect and defend your trademark, you can risk losing said trademark. As such, MCG has an obligation to at least set up certain criteria regarding the usage of its name.

Which brings us to the license. Let me just start with this: there’s nothing unusual about this process. Gamers seem to be hating on this because MCG is charging for the limited license and setting “unreasonable” restrictions. That’s how brand licensing works though. If you are going to make money by leveraging the name someone else built, you pay them a royalty. Period. But more to the point…

  1. Why would they charge me for making my own creatures or cyphers? – They won’t. That’s all covered under the Fan Use Policy. Just like the very site you’re reading this on. All the fan creations we share here are covered by that. Write all the blog posts, tutorials, articles, or creations you want. 99% of you won’t have a single thing to worry about. But for instance, with us, I want to create a sort of “living sourcebook” from the best content submitted here, and give that away. Because I’m making a tangible – even if digital – good, I’ll probably need to kick off the $50 to them. And I’ll do it. That gives me the added benefit of being able to legitimately use the Numenera name on my product, and it makes me “officially licensed.”
  2. Where is the line drawn? Why should I pay for a license on something I’m giving away? – The simple answer is because whether or not you charge for your product has nothing to do with your right to have access to their trademark. We are actually a really great example, because of the above referenced “living sourcebook.” I have no intention of charging. And all the content is available per the fan use policy individually. But when I build that into a collection, a new sort of creation is made. The reality is, MCG probably won’t bother chasing down every small PDF type thing folks release. It’ll mostly depend on the “substantiality” of it. Basically, ask yourself this: If you wanted to sell what you made, could you put it on Amazon in the state it’s in. If yes, then you should probably get a license. If no, then you’re probably under the fan use policy.
  3. Elder Sign, following H.P. Lovecraft, as appended in a letter to Clark Ashton Smith, 7 November 1930. CC-BY 3.0 Waerloeg
    Elder Sign, following H.P. Lovecraft, as appended in a letter to Clark Ashton Smith, 7 November 1930. CC-BY 3.0 Waerloeg

    Why would MCG disallow crowdfunding when they themselves exist because of it? – They aren’t. It’s just not covered by the Limited License. If you want to do a crowdfunded project, you need to negotiate a full license. The reasons are pretty straightforward. For one, most crowdfunded projects that succeed will blow past the $2000 limited barrier anyway. Two, we go back to brand protection. Do you know of Chaosium? These are the guys behind the RPG Call of Cthulhu. Cthulhu stuff is literally ALL OVER Kickstarter, and they have, on more than one occasion, had to enforce their trademark. “But Cthulhu is in the public domain!” Yes and no. Lovecraft’s work is, but certain things, like the usage of the name “Call of Cthulhu” and the star shaped Elder Sign, are trademarks of Chaosium. The reason I say this is because if a bunch of people jumped on Kickstarter to run Numenera based projects, and they fail, or don’t deliver, or turn out crappy – no one will ever remember the name of the person that ran the project. All they will remember is “that failed Numenera project,” or “how I got screwed by that Numenera stuff.”

    Also, as I write this, I see they’ve actually amended the text on the license to be more clear about crowdfunded projects, too.

  4. What if I go over $2000? How will they monitor it? Am I going to get hit with a big bill? How do I know my sales in advance? etc, etc – Part of the license means that they can request a sales report from you. If you are making and selling a product, you should have that no matter what (remember, you still need to pay taxes on the income, if nothing else). So if they’re at a con, and they see tons of people walking around with your $50 sourcebook, they’ll be able to do the math and suspect you might be way over the limit. But I like to think that most people creating and selling content are good natured enough to respect the source they are standing on. If you’re going to be shady about your numbers, I have no sympathy for you. BULLETPOINTS!
    • As someone that has created, sold, and was fairly successful with his own book in a niche market, I can tell you right now that if you think it’s easy to make $2000 on your creation, odds are that you’re wrong.
    • Every interaction I’ve had with MCG, be it on Twitter, email, or whatever, has been great. They totally respect the fan community and want to help it out. They aren’t laying in wait for you to hit $2001 so they can sue you.
    • If they had said the limit was $5000, or $10,000, or $7,346, everyone would be asking the exact same question. It’s not about the number. As a business, they need some kind of line drawn in the sand, and then it’s up to them how strict they are about how that is enforced.
    • Don’t be a dick. If you do really well with your product, awesome. High five! Now send an email, pick up the phone, whatever, and let MCG know and negotiate a full license. You’ll likely end up paying a royalty on each item sold. Odds are that it will actually be pretty minimal, in reality (I would estimate between 1%-6%, but that’s just an educated guess on my part). And that’s how this sort of thing works. If you don’t already know that, then right now is probably a good time to learn it, and the MCG folks are probably good ones to learn the lesson with, because they’ll likely be a lot kinder than folks at bigger companies like Wizards of the Coast or Fantasy Flight Games.
  5. Why does MCG hate X? – The release of the limited license isn’t about punishing gamers. In fact, quite the opposite. Here’s a challenge. Imagine you want to sell a Warhammer FRP adventure you wrote. I dare you to go and find the rules about how to license the name so that you can do so. Here’s the thing, let’s say you get a limited license, and five years down the road you’ve forgotten about it. You’re selling some Numenera book you made on, and have been getting your quarterly check, not even thinking about it. But you’ve made $5000! In a situation where you might end up in court over license violations, if you at least started with the limited license, you’re going to be in much better shape than having no license at all. No license = 100% screwed. Period. Limited license = you might still be a bit screwed, but not nearly as bad if you can demonstrate a “good faith” effort and a willingness to resolve the remaining royalties. In the end, it’s a helpful way to protect yourself.
  6. What about X, Y, or Z? – That is to say, why is the license so vague? It’s not. It’s human readable. Go compare this CC license to this one, for instance. Those are two different means of describing the same thing. If the time comes that you need to get a limited license, you’re probably going to get a much denser, but also much more specific, legally binding document to sign. It’ll say basically the same thing as what’s on the website, but in legal terms, with all those little conditions and situations outlined. It’s just that posting that full on legal document on the website isn’t really helpful, because it’ll be hard for the common man to read and understand. That’s just the world of contract law though.

At the end of the day, I know some of the most vocal complaints come from folks that – in my advancing age – I would describe as kids who don’t have a clue how business works yet. To them, my words are likely lost no matter what. Most of them probably wouldn’t create anything that would need a license anyway, on top of it. But there is a group out there that I’ve seen complaints from that definitely should know better. To you, I say: Suck it up.

Update: 13.10.10 10:05AM

Wanted to attach a really good counterpoint from Justin Jacobson, who provides some thoughts on the specific legal impacts of way the license is constructed. You should go read it, especially if you disagree with me, and even if you don’t.

Update: 13.10.09 2:13PM

A lot of discussion going on in the comments. I wanted to pull some of that up for those not interested in digging through them.

  1. I understand my writing style may come across somewhat abrasively at times. I tend to be pretty blunt in my writing. I do know that, but it’s just the voice I have when write on topics like this. Trust me, it goes back long before this article, and has gotten me into exactly this situation before. If that style offends you, well, I’m not sure what I can do about that except don’t let the style get in the way of the message.
  2. On the market: Keep in mind, this game has created a market that is just as new to MCG as it is to us players. Just because it’s another RPG doesn’t mean there aren’t trails to be blazed building it. There is a lot of learning to be done as more products are released, and more people come into the fold. We are all literally at the bleeding edge, and are seeing a lot of rough edges that will undoubtedly get polished smooth over time. Whatever the case, MCG has a financial incentive to foster the community in the best way they can. They think the NLL helps that. Some of you disagree. Regardless, MCG isn’t setting out to sabotage the game they made. It’s fully possible that they made a mistake with the license, and if so, you can expect them to move quickly to fix that. There’s no business value in hanging by your own neck. This is why I don’t understand the immediate reaction some people have that it’s [insert negative adjective here]. MCG has every reason to want it to be a good license, that facilitates the market as much as possible, while providing adequate brand protection.
  3. The quality of the NLL: I just saw another tweet that qualified the NLL as a “poor license.” Of course, with no actual reason why. Irrelevant. The fact of the matter is that the NLL isn’t going to be a perfect license for everybody. It’s not that it’s better than the OGL, or that the OGL is better than it. They are different licenses, that’s it. And I have no doubt that it will get better over time. As with the last point, MCG will certainly revise the NLL as the market matures and they get a better feel for how to foster the community – but that takes time. Heck, they might decide to change it entirely. The best thing you can do is email them and explain exactly how the NLL is keeping you from doing something that you think is really reasonable. It’s possible you’re mistaken and you actually can do it. And if not, it’s possible they’ll adjust the license to fix the issue. Feedback is very important to the process though.
  4. So what’s right? The truth in the matter is that there are a lot of voices at each end of the spectrum. It’s perfectly valid to think that the NLL will harm growth, or make it not worth it to make 3rd party supplements. It’s also entirely fair to think that MCG is 100% in the right with their approach, and that it’s actually good for helping ensure quality. And I’ve seen very experienced folks (i.e. people that make a living making games) on each side of that, as well. There’s not a right or wrong answer, just differences of interpretation, many of which we’ll need time to see which is more “right.” There’s also a huge valley between what is “legally right” versus what is “reasonably fair.” MCG could give everyone the finger and go after any third party creations at all that don’t constitute fair use. Legally right, but pretty unfair and bad for business. My hope goes back to the previous bulletpoint, which is if you disagree – especially if you’re a game designer – let MCG know and help them make a better license. In the end, we’re all vested in seeing a great gaming community made, and the license should be read with that color in mind.

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