Beholders, Mind Flayers, and Strahd von Zarovich Released Into Creative Commons (Kinda)

In the 5.1 SRD that just got released into the Creative Commons is a bunch of IP including Count Strahd von Zarovich, the Feywild, the Shadowfell, the City of Brass, Palace of Dispater, Street of Steel, Gate of Ashes, and the Sea of Fire. The beholder is also specifically referenced by name in the Deck of Illusions, and Mind Flayers and Slaad are also referenced--at least by name--repeatedly in the document.

Here's a link to the content released to CC.

WotC Backs Down: Original OGL To Be Left Untouched; Whole 5E Rules Released as Creative Commons

Hundreds of game publishers sigh in relief as, after extensive pressure exerted by the entire open gaming community, WotC has agreed to leave the original Open Gaming License untouched and put the whole of the 5E rules into Creative Commons. So, what's happened? The Open Gaming Licence v1.0a...

www.enworld.org

What does that mean? Under OGL v1.0a terms like this were generally designated as ‘Product Identity’ and were unavailable for use. The CC license has no such provision. This means that those using the OGL cannot (still) use terms designated as PI, but those using the CC can use the full content of the document released under it.

Only the names of these creatures and places are contained in the document--so you can't use Strahd's image or stat block or description, nor can you use those of the beholder, etc. But it does appear that you can refer to these items.

 

[Dannyalcatraz]

Mod Note:

Remember to keep it civil in here, everyone.

 

[Jadeite]

Thank you! That's another one I was about to rename and disguise up a bit; now I don't have to.

On that note, Eyes of the Deep are also Open Content.
There's also The Iconic Bestiary: Classics of Fantasy by Ari Marmell (who did some official work for 3.5, 4e and 5e) which includes:
Eirisai (chaos outsider)
Evil Eye (floating eye)
Greymalkin (morphing cat)
Ophiduan (snake humanoid)
Phrenic Scourge (aberration)
Scavenger Worm (insect)
Tunnel Brute (umber hulk/scorpion)
Phrenic Scourges, for example, were used by Dreamscarred Press for their Pathfinder Psionics.

 

[S'mon]

Which is all to say that even with "not endorsed by WotC" language I would avoid directly referencing D&D or Wizards of the Coast anywhere on the outside of a product, because WotC has a case that the rational reason to do so is to try to free ride off their brand in some way, and that's the thing that trademark protections exist to prevent.

That's not accurate. The primary function of trade mark law is to prevent point of origin confusion by the customer. The customer needs to know that D&D brand product comes from the D&D brand owner. But indications of compatibility without confusion as to origin are normally fine - even when they increase sales.

 

[Branduil]

At last, I can finally release my my masterpiece of erotic fiction, "10 Rays to Say I Love You," the story of a forbidden and drama-charged polycule between a Beholder, Mind Flayer, Count Strahd, and there's nothing WotC can do to stop me!

 

[Benjamin Olson]

That's not accurate. The primary function of trade mark law is to prevent point of origin confusion by the customer. The customer needs to know that D&D brand product comes from the D&D brand owner. But indications of compatibility without confusion as to origin are normally fine - even when they increase sales.

That is another purpose of trademark law, and I did oversimplify. But now you are oversimplifying in the much more dangerous direction. Yes you can reference a trademark to indicate compatibility, but if the trademark owner picks a fight with you it becomes an issue for a court to decide whether that was the actual intent.

No court would allow a tiny "compatible with" followed by a giant "DUNGEONS AND DRAGONS" that looked like the title of the book, followed by tiny "not endorsed by WotC" disclaimer. And I'm dubious that you would get away with your proposed "Compatible with Dungeons & Dragons, published by Wizards of the Coast. Trade Mark used without permission" because, having failed to indicate an actual edition, you have actually not informed anyone of what game it is compatible with. And my original point was precisely that as variations on "5e compatible" become increasingly standard on a wide variety of products actually compatible with 5.1 SRD derived products, the justification to reference WotC or their trademarks becomes more tenuous.

WotC has asked to not give them or their D&D brand free advertising on 5e compatible products, and I believe everyone benefits from following that request. They are just another producer of 5.1 SRD derived products as far as I'm concerned.

 

[Plokman]

That is another purpose of trademark law, and I did oversimplify. But now you are oversimplifying in the much more dangerous direction. Yes you can reference a trademark to indicate compatibility, but if the trademark owner picks a fight with you it becomes an issue for a court to decide whether that was the actual intent.

No court would allow a tiny "compatible with" followed by a giant "DUNGEONS AND DRAGONS" that looked like the title of the book, followed by tiny "not endorsed by WotC" disclaimer. And I'm dubious that you would get away with your proposed "Compatible with Dungeons & Dragons, published by Wizards of the Coast. Trade Mark used without permission" because, having failed to indicate an actual edition, you have actually not informed anyone of what game it is compatible with. And my original point was precisely that as variations on "5e compatible" become increasingly standard on a wide variety of products actually compatible with 5.1 SRD derived products, the justification to reference WotC or their trademarks becomes more tenuous.

WotC has asked to not give them or their D&D brand free advertising on 5e compatible products, and I believe everyone benefits from following that request. They are just another producer of 5.1 SRD derived products as far as I'm concerned.

So in theory your book would need the 5E stamp, like Dobbers, Sands of Doom and most stuff on the DMs guild/Drive-through RPGs and it would be acceptable?

 

[Ruin Explorer]

But it might be a long time before we're able to say with real confidence "ah ha, it was THAT person who caused this and THAT other person won a power struggle."

If ever.

One of the sad things with corporate life is that NDAs and severance contingent on non-disclosure is that an awful lot of this stuff just never comes out at all. There loads of companies I'd absolutely pay for a book about what exactly was happening during some event, even if I had to wait 20 years for it to come out, but they mostly just don't.

I'm not sure activist investors have ever improved things for anyone but other investors.

Yup.

I remember when I was younger, even like, 10-15 years younger, I thought activist investors were sometimes there to do good, or to look out for the real goals of the company, but in reality they're usually just as short-term-ist and greedy as the other investors, they just have a different idea of how the business should be run (sometimes smarter, often not).

 

[S'mon]

That is another purpose of trademark law, and I did oversimplify. But now you are oversimplifying in the much more dangerous direction.

Not really. I talked accurately about the primary purpose of TM Law as being to indicate orign. Taking the UK 1994 Trade Marks Act section 10 on Infringement, 10(1) and 10(2) infringement both* involve origin confusion by the customer. Famous marks do get extended protection under 10(3) against taking unfair advantage, tarnishing and dilution, but the application of 10(3) is fairly limited by the 'without due cause' requirement. Indicating compatibility would be a due cause.

I said nothing about companies sending C&Ds or having to go to court, etc etc, just about the primary aim of TM law. You said incorrectly that it was about preventing others taking advantage of your mark. That is not the main aim of TM law. You were wrong.

*Assumed in 10(1) identical mark/identical goods & services, must be demonstrated in 10(2) similar marks & goods/services.

(TM Law is the same throughout the EU. US law has a similar emphasis on origin confusion - 15 U.S. Code § 1114 - Remedies; infringement; innocent infringement by printers and publishers )

 

[Grazzt]

However, the City of Brass described in One Thousand and One Nights is pretty distinct from that of the D&D multiverse, being a ruined North African city visited by a group of Arabic adventurers seeking to discover bound Ifrits.

The one Necromancer Games released for 3.x way back (that Casey Christofferson and I wrote; and like 99% of that book is open content) is way closer to the "official" D&D version (sits on a fiery plane, inhabited by efreet, etc). I believe Frog God Games updated it and released it under 5e as well.

 

[S'mon]

No court would allow a tiny "compatible with" followed by a giant "DUNGEONS AND DRAGONS" that looked like the title of the book, followed by tiny "not endorsed by WotC" disclaimer.

They would not allow it because of the risk of origin confusion.

 

[Prime_Evil]

The term MInd Flayer is trademarked in the US and Europe....but not by WoTC. Someone named Lu Guoping from Jiangxi Province in China trademarked the term in August 2021 in connection with:

"Dice; Action figure toys; Action skill games; Board games; Card games; Dice games; Fantasy character toys; Gaming paper, namely, paper printed with regular grid and hexagon patterns for use in playing war games, role playing games and miniature games; Playing card game accessories, namely, playing card cases, playing card holders, mats for use in connection with playing card games, playing card shuffling devices and dice; Playing pieces in the nature of miniature action figures and toy model vehicles for use with table top hobby battle games in the nature of battle, war and skirmish games, and fantasy games; Plush toys; Tabletop games; Video game interactive control floor pads or mats"

The trademark was approved in the US on 14 June 2022.

 

[FrogReaver]

The term MInd Flayer is trademarked in the US and Europe....but not by WoTC. Someone named Lu Guoping from Jiangxi Province in China trademarked the term in August 2021 in connection with:

The trademark was approved in the US on 14 June 2022.

That's hilarious.

 

[S'mon]

The term MInd Flayer is trademarked in the US and Europe....but not by WoTC. Someone named Lu Guoping from Jiangxi Province in China trademarked the term in August 2021 in connection with:

The trademark was approved in the US on 14 June 2022.

Here's the link Trademark Electronic Search System (TESS)

 

[S'mon]

I like this "Eye of Da Beholder" mark

Trademark Electronic Search System (TESS)

 

[R_J_K75]

Didn't read the article but I'm going to infer from its title that WotC are seeing things in a brighter light as far as change is concerned.

 

[S'mon]

Here's a Beholder mark for computer games & toys - Trademark Electronic Search System (TESS)
Can't see any WoTC/Hasbro registered mark.

 

[R_J_K75]

So I can commercially publish my Mickey/Strahd gay erotica finally?

As long as it doesnt reference "my pretty pony"

 

[pemerton]

It's great for OSR folks especially, I think, as they don't have to work around the 'Product Identity' restrictions any more, and can even have simple OD&D style 1 line stats for mind flayers in their dungeons.

WotC say "Please do not include any other attribution regarding Wizards other than that provided above. You may, however,
include a statement on your work that it is “compatible with fifth edition” or “5E compatible.”"

The funny thing is this does not appear to be a legal requirement, so it seems you could now put "Compatible with Dungeons & Dragons, published by Wizards of the Coast. Trade Mark used without permission" on your work that uses CC material. It would be a bit rude though. (And of course being legal doesn't necessarily prevent nasty C&D letters).

I think the "please do not include any other attribution" may be a legal requirement, as per CC-BY section 3.a.1.A.i:

If You Share the Licensed Material (including in modified form), You must retain the following if it is supplied by the Licensor with the Licensed Material: identification of the creator(s) of the Licensed Material and any others designated to receive attribution, in any reasonable manner requested by the Licensor (including by pseudonym if designated)​

The absence of other attribution seems like it may be a component of a reasonable request by the Licensor as to the mode of attribution.

With the mind flayers et al, and someone has already probably mentioned this upthread, the licence doesn't extend to trademarks (section 2.b.2) and so that may limit the way that some of those terms that WotC asserts are its trademarks are used. But it has definitely moved the field of analysis from the contractual terrain of Product Identity to the terrain of pure IP law.

{EDITed just to fix a couple of typos.)

 

[S'mon]

I think the "please do not include any other attribution" may be a legal requirement, as per CC-BY section 3.a.1.A.i:

If You Share the Licensed Material (including in modified form), You must retain the following if it is supplied by the Licensor with the Licensed Material: identification of the creator(s) of the Licensed Material and any others designated to receive attribution, in any reasonable manner requested by the Licensor (including by pseudonym if designated)​

The absence of other attribution seems like it may be a component of a reasonable request by the Licensor as to the mode of attribution.

That appears to be a requirement to show the origin of the SRD material, as per WoTC's required licence notice:

This work includes material taken from the System Reference Document 5.1 (“SRD 5.1”) by Wizards of
the Coast LLC and available at Systems Reference Document | Dungeons & Dragons. The
SRD 5.1 is licensed under the Creative Commons Attribution 4.0 International License available at

https://creativecommons.org/licenses/by/4.0/legalcode.

It does not appear to impose any restriction on indicating compatibility with the D&D game, AFAICs. That issue of indicating compatibility is a different question from the question of who originated the CC material (the contents of the SRD), and I don't think can be reasonably taken to be covered by the CC licencing terms. Probably why the 'request' is not part of the licence terms.

 

[pemerton]

That appears to be a requirement to show the origin of the SRD material, as per WoTC's required licence notice:

This work includes material taken from the System Reference Document 5.1 (“SRD 5.1”) by Wizards of
the Coast LLC and available at Systems Reference Document | Dungeons & Dragons. The
SRD 5.1 is licensed under the Creative Commons Attribution 4.0 International License available at

https://creativecommons.org/licenses/by/4.0/legalcode.

It does not appear to impose any restriction on indicating compatibility with the D&D game, AFAICs. That issue of indicating compatibility is a different question from the question of who originated the CC material (the contents of the SRD), and I don't think can be reasonably taken to be covered by the CC licencing terms. Probably why the 'request' is not part of the licence terms.

I think the "Please do not include any other attribution regarding Wizards other than that provided above" is part of the reasonable request the licence incorporates into its terms.

Which perhaps rules out "Compatible with D&D - D&D is a trademark of Wizards of the Coast used without permission". As I think there is at least an argument that that might constitute an attribution to Wizards. That argument probably wouldn't be knockdown, but I wouldn't necessarily want to be the first person to defend against it!

"Compatible with D&D", without the rest, doesn't look like any sort of attribution to Wizards. But perhaps raises its own risks around trademark use.