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.

 

[occam]

The CC isn't a statute, and WotC can do whatever they want with their IP (subject to law). I'm trying to understand what falls within the scope of a reasonable request as to the manner of attribution, which is part of the terms on which WotC is offering to licence its material - in particular, can WotC's reasonable request be taken to extend to the preclusion of certain modes of attribution?

The fact that WotC is not offering to licence its trademarks doesn't affect this, and the only reference to "fair use"/"fair dealing" is in relation to the copyright licence, not any of the licensor's trademarks.

How one implements attribution is a trademark issue. If your attribution might cause confusion in the marketplace regarding who has produced a product, or whether it has some sort of official approval, then you're at the very least skating on thin ice.

Including a duplication of WotC's ampersand logo to indicate that your CC-licensed product is compatible with D&D will almost certainly get you into trouble. Does including some small print saying "Compatible with the 5th edition of the Dungeons & Dragons game", with no special logo treatment, cross the line? Do you want to take the risk to find out?

 

[occam]

Yuanti and Yuan-ti have no active trademarks when I searched the US trademark database. That means you are probably safe to use your own version of Yuanti, be they people with snake tails (as mentioned in the SRD) or your entirely new spin on them. This may seem small or pointless to some, but for some reason I've always like the name Yuanti a lot and the general vibe of them (serpent-people of various kinds being an ancient trope), so this is good news for me.

Trademarks don't need to be registered, merely used in commerce (which "yuan-ti" has been for over 40 years).

 

[occam]

Like, to me, it is 100% absolutely crystal clear that they did that exactly on purpose. They aren't...okay, they aren't the kind of idiot that doesn't know what's in the document they're referencing. I can't imagine any actual reasoning that leads to "oops they messed up someone is gonna get fired", in this case.

I agree with most of what you have to say in this post, but...

You can do plenty with the names. Especially since stat blocks almost certainly can't be copyrighted, anyway.

Yes, they absolutely can be. I don't know where this comes from. Stat blocks are specific creative expressions, eligible for copyright protection just like any other piece of text or music or film. I don't see how that's in any way debatable; there are lots of specific creative choices that need to be made in the development of a creature's stat block.

Yep, and your mindflayer statblock just needs to not reference Illithid, or other stuff that isn't CC, but can otherwise pretty much just duplicate the stat-block.

I think it's just the opposite. Duplicating a stat block is almost certainly copyright infringement. But you can probably mention illithids, the Raven Queen, or any other trademarks (assuming for the moment that these things have trademark protection), as long as there's no chance of creating confusion in the marketplace about the source of those ideas. What you can't do is reproduce any text or artwork to which you don't have a license (like the CC or OGL).

By using the Creative Commons license, you free yourself from the OGL's restrictions on referencing Product Identity, which are trademarks given extra protection over-and-above usual trademark protection. By using CC, you can reference trademarks like normal, just as we do on this very message board.

 

[Alzrius]

Trademarks don't need to be registered, merely used in commerce (which "yuan-ti" has been for over 40 years).

I don't think that making up a term that you then use in a commercial product makes that term into a trademark, at least from a quick review of this page, since "yuan-ti" isn't used to identify D&D in any capacity that I'm aware of:

What is a trademark?

A trademark can be any word, phrase, symbol, design, or a combination of these things that identifies your goods or services.

www.uspto.gov

 

[doctorbadwolf]

I agree with most of what you have to say in this post, but...


Yes, they absolutely can be. I don't know where this comes from. Stat blocks are specific creative expressions, eligible for copyright protection just like any other piece of text or music or film. I don't see how that's in any way debatable; there are lots of specific creative choices that need to be made in the development of a creature's stat block.


I think it's just the opposite. Duplicating a stat block is almost certainly copyright infringement. But you can probably mention illithids, the Raven Queen, or any other trademarks (assuming for the moment that these things have trademark protection), as long as there's no chance of creating confusion in the marketplace about the source of those ideas. What you can't do is reproduce any text or artwork to which you don't have a license (like the CC or OGL).

By using the Creative Commons license, you free yourself from the OGL's restrictions on referencing Product Identity, which are trademarks given extra protection over-and-above usual trademark protection. By using CC, you can reference trademarks like normal, just as we do on this very message board.

I mean I guess it depends on what you mean by “pretty much duplicate”.

To me, that means “do all the same things, without doing a copy-paste”. Because a copy-paste would be “duplicate verbatim”.

But I could have been more clear.

Yes, you can copyright a specific exact statblock. You can’t copyright what the mechanics of the statblock do, even in combination.

“Hit=grapple. Mineflayer can attempt to feed on a grappled target as an action. Target makes [appropriate saving throw], and on a failure takes XYZ damage, reduces Int score by XdY, and the mindflayer regains HP equal to half the damage dealt.”

Is a unique expression of a non-protected idea, and is distinct from the ability in the MM, assuming different damage numbers, give or take the Int damage, etc.

You can make a tentacled humanoid shaped monster with psychic powers and aberrant nature, that eats brains, and wotc has no recourse. Now, you can even call it a mindflayer.

 

[S'mon]

Trademarks don't need to be registered, merely used in commerce (which "yuan-ti" has been for over 40 years).

It's only a trade mark if it's used as a badge of origin. I'm pretty certain Yuan-Ti has never been used as a trade mark.

 

[S'mon]

I don't think that making up a term that you then use in a commercial product makes that term into a trademark, at least from a quick review of this page, since "yuan-ti" isn't used to identify D&D in any capacity that I'm aware of:

What is a trademark?

A trademark can be any word, phrase, symbol, design, or a combination of these things that identifies your goods or services.

www.uspto.gov

That's correct.

 

[S'mon]

You can make a tentacled humanoid shaped monster with psychic powers and aberrant nature, that eats brains, and wotc has no recourse. Now, you can even call it a mindflayer.

It's not necessarily safe to do so. A court might say that the WoTC mindflayer is copyright protected, and that you've reproduced enough to infringe on that copyright. In MGM v Honda, just having James Bond type character & villains appearing in a car ad was held (likely) to infringe MGM's copyright. https://www.copyright.gov/fair-use/summaries/mgm-amhonda-cdcal1995.pdf

Edit: That was in California, which obviously is very friendly to movie studios. It might go differently elsewhere.

 

[pemerton]

It's only a trade mark if it's used as a badge of origin. I'm pretty certain Yuan-Ti has never been used as a trade mark.

Just to riff on this a little bit:

The category of Product Identity - as I understand it - is designed not only to take certain trademarks outside of the licence granted by the OGL, but also to take certain story elements (whether or not trademarks, and whether or not protected by copyright) outside of that licence.

In the context of the CC licensing of the SRD, WotC has agreed to licence (inter alia) the word "yuan-ti". Also the phrases "a yuan-ti with a snakelike tail instead of legs" and "the product of terrible curses (including minotaurs and yuan-ti)". The licence permits reproducing and transforming this material. So presumably an otherwise original story about yuan-ti, human-like beings who as a result of a terrible curse have snakelike tails instead of legs is covered by the licence. This seems to be a difference from the previous (OGL-based) licensing regime.

But if that story drew upon elements from WotC-owned works that haven't been licensed (eg, and just looking at my AD&D MMII, that the yuan-ti live in tropical jungles, and worship demons, and come in three varieties reflecting the degree to which they are snakelike) then presumably there is some risk of infringement as per the James Bond example.

 

[S'mon]

But if that story drew upon elements from WotC-owned works that haven't been licensed (eg, and just looking at my AD&D MMII, that the yuan-ti live in tropical jungles, and worship demons, and come in three varieties reflecting the degree to which they are snakelike) then presumably there is some risk of infringement as per the James Bond example.

Yes, the more you take, the more the risk of infringement. I don't think "live in tropical jungles, and worship demons" would be enough, but the detailed three-race breakdown in the MM2 might be. Maybe.