The Genealogy of D&D Terms, Part II

In which Hasbro fails to save against prior use.

Feb 22, 2023

Since Wizard of the Coast’s perfidious treachery, I have been researching the genealogy of Dungeons & Dragons with the able assistance of Autarch’s intern Homer. Last week, I presented our findings on armor class. Today we will examine the term saving throw.

DISCLAIMER: I’m a lawyer in the New York State Bar, but retired from the practice of law since 2001. Moreover, I was never an IP lawyer at any time. This essay is not legal advice to you. Please treat this as simply a summary of the discoveries we’ve made and the justification for Autarch’s own business decisions!

The Genealogy of Saving Throw

The first use of the term “saving throw” seems to have been in Tony Bath's 1966 Rules for Medieval Wargames. "City militia may only attack heavy infantry if they can throw a 5 or 6. If attacked by them they must throw a 4, 5, 6 to stand, otherwise break and are diced for… If fighting takes place, one throw per 5 men, militia lose half total, no saving throw, cavalry lose one-quarter, saving throw of six." Although not formally defined, saving throw is implicitly offered up as the term for a roll of the dice to avoid something bad happening

The term “saving throw” appears again in Rules for 1750 Period Wargames (Including North America) by Tony Bath and Donald Featherstone, published January 1, 1971 under Wargames Research Group. The term was mentioned twice in the rulebook, again without explicit definition but implicitly a roll made to avoid a bad outcome:

“10. All troops will have a saving throw of 5 to 6.”

“20. There are no saving throws from artillery fire.”

In March later that year, Gary Gygax and Jeff Perren published Chainmail, the progenitor of Dungeons & Dragons. On p. 31, Gygax and Perren offer up a “save” mechanic for certain units to avoid spells, but they do not call them saving throws:

On p. 36, under the Dragon entry, they wrote “Dragon fire will kill any opponent it touches, except another Dragon, Super Hero, or a Wizard, who is saved on a two dice roll of 7 or better.”

On p. 36, under the Basilisk entry, Gygax and Perren note “These horrible beasts will turn to stone anyone, except a magic user or a Super Hero (can be saved by a two dice roll of 6 or better) who looks at their face. Any figure that touches or is touched by them must throw to be saved: Hobbits, Dwarves, Gnomes, Goblins, Kobolds, Orcs, Ents, and Giants need 10 or better; all others need 7 or better to be saved.”

So the Chainmail rules makes use of a concept similar to saving throws but they do not use the actual term. The closest they come is the Basilisk entry, “throw to be saved.”

It is not until 1974’s Dungeons & Dragons that saving throw finally appears. On page 40, Gygax presents the “saving throw matrix,” explaining “Failure to make the total indicated above results in the weapon having full effect. Scoring the total indicated above [or scoring higher]” means the weapon has no effect or one-half effect…”

Dungeons & Dragons retained a variant of the table above through Holmes Basic, Moldvay Basic, Mentzer Basic, and Rules Cyclopedia, while Advanced Dungeons & Dragons used a slightly modified variant for its First and Second Editions. In Third Edition, saving throws were entirely revised. Instead of being a throw against a fixed value, characters had saving throw modifiers for Fortitude, Reflexes, and Will, applied against variable difficulties. Finally, in Fourth and Fifth Edition, saving throws simply became ability checks based on the six attributes.

The majority of #OpenDnD games use either some variant of the Original Dungeons & Dragons saving throw matrix or the 3.5E three saving throw system, with some more recent entries following the 5E model. Assuming the designers of these systems want to stop using the Open Game License and SRD, do they need to get rid of the term and concept of saving throws? Do they risk copyright infringement if their game features saving throws?

The concept that a character in a game can avoid an effect by rolling a die is certainly open to anyone to use. Game mechanics cannot be copyrighted, only their expression - of this, there is no question whatsoever. But of course game mechanics do need to be expressed to be useful. So what about the expression “saving throw”?

It seems to me believe that the use of the term “saving throw” in wargames for the10 years prior to its use in Dungeons & Dragons, for exactly the same mechanical reason, precludes Hasbro from asserting that D&D can claim a copyright over the term. If anyone, Tony Bath would have the claim!

I don’t think that Tony Bath has a claim, either.1 Within copyright law, the "merger doctrine" holds that certain expressions or terms are so integral to the expression of an idea that it would be unreasonable to prohibit others from using them. For example, imaging trying to write about baseball without being able to use the terms batter, home run, and so on. In such cases, the use of these necessary terms would not be considered a copyright infringement, even if they are the same as those used by others. The merger doctrine is designed to prevent copyright owners from monopolizing common or essential terms and expressions. It recognizes that some terms may be so intrinsic to an idea that prohibiting their use would essentially grant a monopoly over that idea.

I believe that’s the case with saving throws. Once Tony Bath coined the term, it become the common expression for the concept it denoted. The exact phrase “saving throw” has by now appeared in countless other games, but two of the biggest games it appears in are Warhammer Fantasy Battles and Warhammer 40K. In both games, models can make saving throws to avoid certain effects, using a mechanic that is extremely similar to that used by Bath. “Saving throw”, the term, has merged with the idea of rolling to avoid an effect, and every game designer is free to use it, just as they are free to use the term “armor class.”

Hasbro has, I think, a stronger case if a would-be competitor uses the exact same terms for each of the saving throws. A saving throw matrix that copies, word for word, “Death Ray & Poison,” “Staves & Spells” and so on, would likely be infringement, as would using “Fortitude, Reflex, and Will save”.

Accordingly, my next game, Adventurer Conqueror King System Imperial Imprint (ACKS II) will be retaining the term “saving throws” but it will not be using the same words for the throws as were found in D&D. ACKS II’s saving throws will be Paralysis, Death, Blast, Implements, and Spells.

Speaking of new games…

Don’t Miss My Upcoming Kickstarter on February 28!

Autarch’s eleventh Kickstarter project, Ascendant: Platinum Edition™, will launch on February 28th at noon eastern.

Ascendant™ is Autarch’s superpowered role-playing game of infinite possibilities. Crowdfunded in April 2020 and launching in January 2022 on DriveThruRPG, Ascendant became a #1 bestseller and hit Platinum tier within weeks. The first printing of Ascendant sold out within a month of release. Now, with Ascendant: Platinum Edition, we’re debuting a revised second printing of the core rules, the game’s first official sourcebook, and the Ascendant Universe’s premiere graphic novel.

The game’s first official sourcebook is the showpiece of the Kickstarter. It’s called the Rogues Gallery and it is crammed with dozens of heroes and villains for use in superhero campaigns. Every villain has a complete backstory, a story hook, full game stats, and of course a lavish illustration. Here’s a few examples of the amazing artwork in the book:

Remember, February 28th is the day! Check out the links below for ways to get involved in the Autarch community. If you’re a fan, be kind and spread the word!

Except for being the creator of the world’s first mega-player fantasy wargame campaign. His Hyborian campaign remains a masterpiece almost unequalled in wargame annals.

Arbiter of Worlds

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