I promised everyone the full rundown of what happened, and now that everything is finally signed and settled, here it is:

So what happened?

On Friday evening, November 30th, 2012, I received a cease and desist email from a lawyer representing Wizards of the Coast. Their lawyer claimed my Rusty the Rust Monster plush Kickstarter and the RustyAndCo.com webcomic itself infringed on their copyrights. As they considered the comic and plush to be “illegal derivative works,” they asked me to shut down the (already completed) Kickstarter, to refrain from distributing any rust monster plushes, and to remove the entire comic from the web.

My name was spelled wrong quite a few times.

The email gave me ten days (five business days) to comply. They also sent a similar letter directly to Kickstarter, who immediately made the Rusty Kickstarter page hidden.


Now, some of you are already forming the counter-arguments in your head. Over the hiatus, lots of helpful fans pointed out the following:

  • Rust Monsters are part of the SRD and aren’t one of WOTC’s “Product Identity” creatures.
  • RustyAndCo.com is a work of parody and is therefore protected.
  • “Rusty the Rust Monster” is a unique character and creation, recognizably different from any rust monster in any sourcebook, and therefore is copyright to me.

In my opinion, I think those are all really strong arguments in my favor. However, in order to use them, I would need to defend myself in court against WOTC. Win or lose, it would have been a incredibly costly and very time-consuming process. Instead of the site and Kickstarter being down for weeks, it could have been months, or years. That meant I needed to reach an agreement with WOTC without being taken to court.

I also knew it would be a bad idea to deal with WOTC myself, so I began looking for an attorney. I contacted quite a few firms but hadn’t managed to sign one when the ten day limit was up, so to avoid litigation, I took the site down on December 10th, 2012.

I had gotten a lot of advice from the lawyers I’d contacted, and the one thing they all agreed on was that I shouldn’t publicly talk about my plans or about the cease-and-desist. More than one lawyer said if I gave the impression of just “playing possum” instead of genuinely complying while working things out, they might start real litigation. Specific examples of things I was told to avoid were posting things like “Temporarily down” or “Be back soon” or “Don’t worry, I’m going to win this!” or anything like that.

This meant I couldn’t keep anyone updated, or do anything that looked like I was trying to get around their demands. I couldn’t even tell the Kickstarter backers the details, or post any tweets about the ongoing developments. I’d like to take this moment to apologize for the silence, but I simply couldn’t discuss it publicly without risking litigation.

Several wonderful fans offered to re-host the comics for me elsewhere, but I felt that was the exact sort of thing they could use to say I was trying to get around their cease-and-desist. I hope everyone understands why I asked those fans not to distribute the comic while things settled.

So how’d you get the comic back?

Around this time — fortunately for me — I was contacted by an attorney named Augustus Golden. Mr. Golden has a wealth of experience in intellectual property disputes, and he explained the various ways we could respond to WOTC’s demands. He began negotiating with WOTC’s lawyer, and over several weeks, they worked out an amicable settlement that both sides could agree to.

The tone of the negotiations were generally civil, and WOTC was willing to work with Mr. Golden towards a settlement that left the comic up and Kickstarter fulfilled, but in a way WOTC would be comfortable with.

Why did it take so long?

WOTC’s lawyer would frequently take days or weeks in responding to us, and Mr. Golden often had to leave several phone messages and emails in order to get a reply. As an example: the final version of the settlement had to be sent back to WOTC for a last minute revision as, once again, WOTC’s lawyer misspelled my name several times. It took over a week until a corrected version was delivered to us.

So what does this mean for the comic?

The comic is back up, and will continue to update on its regular schedule for the foreseeable future. As per WOTC’s requests, I had to make several changes to the comic and site:

  • I’ve added a disclaimer to the footer of the site, as provided by WOTC’s lawyer.
  • Some entries have been removed from the Cast Page and Monster List.
  • Some bits of dialog in the comic have been changed.
  • The green-skinned, Texan snake-girl character has been retconned into a lamia.
  • Some characters can’t be used in future strips, but they do not need to be removed from already-published strips.
  • I can’t produce a print version of Rusty & Co. strips, regardless if it’s for profit or not.
  • I can’t add more advertisements to the site, beyond the three I already have. If I turned down linking your site on my main page, this is why, as I can’t prove I didn’t accept money to promote you. Sorry.
  • The original Kickstarter page has to remain down.

There will still be rust monsters.

So what does this mean for the Kickstarter?

The Kickstarter rewards will go out in full. Everyone will get the plushes they donated for. Once the dust settles from shipping those out, I’ll set up a store on the website and continue to sell the remainder. As per WOTC’s request, the original Kickstarter page will remain down.

Everyone who donated for a cameo will be getting those too. The hiatus of the site pushed the timetable back a few months, so by way of balancing it out I will be expanding each cameo to considerably more than the “three panels plus dialog” I had promised. I’ve already spoken with some of the backers regarding these expanded roles, and I think in the end, everyone will be pretty happy with the results.

So who do we thank?

If you’re a fan of the comic, please take a moment to say thanks to Mr. Golden. I can say, without doubt and without hyperbole, that if it wasn’t for his patience and expertise, the comic would still be down today.

I’d also like to thank Rich Burlew, who had some encouraging words to say at the start of the whole dispute.

I’d also like to thank my mom and dad, who are helping me get literally dozens of Rusty plushes out the door and on their way to my backers as soon as we can.

And of course, thanks to all my readers for their patience and well-wishes during the past few months. I really appreciate it.

— Mike