Copyrights(sp?), Patents, Trademarks, etc....

[Tuzenbach]

I'm not sure if this is the right forum for this, but I'm sure the Mods will put it where it goes. Anyway.....


Some questions:

I know that there are about 12 or so monsters that WoTC retains exclusive rights to. Which are they? I know that the Beholder, Githyanki, Yaun-ti, and Displacer Beast are among them, but what are the others?

Under what category do these rights fall? That is, are they trademarks, copywritten materials, or do they merely fall under the umbrella of "intellectual property"?

Is it the NAME of these creatures which is rights protected, or the CONCEPT, or both? For instance, assume I wanted to publish a module with a creature whose description matched EXACTLY that of the Beholder and, indeed, I even go so far as to include an illustration (home-grown, of course) of a Beholder yet call the thing (for the sake of argument) a "Shoe". Could I be sued for using the Beholder CONCEPT even if I refrained from using the Beholder NAME?

Any and all responses will be greatly appreciated. Thanks!

 

[TheAuldGrump]

Trademark. The name is trademarked, as is the likeness, the concept is not.

Mind Flayer is also among the missing. Rust Monster. Not remembering the others off hand.

The Auld Grump

 

[Grazzt]

Trademark. The name is trademarked, as is the likeness, the concept is not.

Mind Flayer is also among the missing. Rust Monster. Not remembering the others off hand.

The Auld Grump

Rust monster IS in the SRD. Carrion Crawler is another that isnt found in the SRD. The Umber Hulk is another "missing" monster.

 

[trancejeremy]

I don't think they are trademarked, just copyrighted.

For instance, like Star Wars and Ewoks. Ewoks aren't trademarked, but since the place they appeared originally is Return of the Jedi, any use of them is thus a derivative work, and thus infringement (unless it's a parody, like on South Park, when the entire cast of Raiders of the Lost Ark was replaced by Ewoks)

Now if you made a knock off, WOTC could very well sue you. Would they win? Dunno - that would be up to a court to decide if you did in fact rip them off, or your take is sufficiently original.

IMHO, WOTC has been fairly nice in letting other people play in their sandbox, and thus people should respect their wishes about where they draw the lines.

 

[Gilwen]

I'm not sure if this is the right forum for this, but I'm sure the Mods will put it where it goes. Anyway.....


Some questions:


Is it the NAME of these creatures which is rights protected, or the CONCEPT, or both? For instance, assume I wanted to publish a module with a creature whose description matched EXACTLY that of the Beholder and, indeed, I even go so far as to include an illustration (home-grown, of course) of a Beholder yet call the thing (for the sake of argument) a "Shoe". Could I be sued for using the Beholder CONCEPT even if I refrained from using the Beholder NAME?

Any and all responses will be greatly appreciated. Thanks!

What is protectable is the expression of the concept not the concept itself. Names and words can't be copy written so I don't know about using the names if they aren't trademarked.

You'd be violating their copyright since you copied their text exactly. You would be safer by taking the concept (only their expression is protectable) and creating your own creature and picture that doesn't match WOTC exactly. But if you are publishing under the OGL you can't use those 12 or so monsters because I am 99% sure they are declared Product Identity by WOTC.

As always:
I am not a lawyer and I am highly subject to being wrong. Consult a lawyer.

Gil

 

[S'mon]

NB: "Product Identity" is not a type of legal intellectual property like trademarks or copyright, it has relevance only within the OGL contract - if you agree to the OGL contract you agree not to use this "product identity" even in ways that would not infringe WoTC's IP rights.

Eg: I could write an adventure, not using the OGL, and include "Three Mind Flayers live here." As far as I know this would not infringe copyright since to my knowledge no court has ever held a two word phrase like "mind flayer" to be copyrightable. Even "Illithid" is not copyright protected (There was a recent case where Exxon tried to claim copyright in the word Exxon, but failed).

Trade mark infringement is possible but unlikely, even assuming WoTC has registered "mind flayer" as a registered TM. Simply using a trademarked word doesn't mean you're necessarily infringing the mark.
If I wrote "A Dungeons & Dragons Adventure" on the front of my product WoTC would have a good case for tademark infringement against me. If I wrote "Not authorised by WoTC. Any use of trademarked words is not intended as a challnge to those marks" and especially "Use of 'mind flayer' not authorised by WotC" etc it seems very unlikely they would win a TM infringement case against me (judging by TRIPs, UK TM law & the wording of the US Langham Act - I'm not a US IP lawyer). I don't think "mind flayer" is a famous mark such that use of it could amount to dilution of the mark. There's also a good argument that use of the words in a scenario to describe a creature is nominative use not TM use.

In short: WoTC would have (AFAIK) no copyright case and at best a very weak TM case were you to use the term Mind Flayer in a work. OTOH being sued usually costs money whether the other side has a real case or not. And you can't use the OGL and use mind flayer or else you're in breach of the contract you agreed to. Plus while you can IMO legally write "mind flayer", if you include a mind flayer stat block adapted from a WoTC product you've probably breached their copyright.

 

[DaveMage]

Of course, if you want to use one of those monsters in your own work, you could always *ask* Wizards - they just might say "yes".

 

[PatrickLawinger]

With all due respect to the people on these boards, consult a lawyer for legal questions.

As far as WotC granting permission to use "off limits" creatures not listed in the SRD, they have been VERY good about it. It would seem simplest to just ask them. Just be warned that their response time on a question like that might not be really fast.

If you are creating a standard adventure/source book I am pretty sure they'll say yes.

If you are writing up a mind flayer brothel with special rules on "the things they can do with those tentacles," um, well, expect them to say "no."

 

[Tuzenbach]

Hey, thanks for the responses!

Are there companies out there that make miniature figures of the copywritten monsters, yet call them something else entirely?

I know I started off with a publish-type example, but I'm actually more interested in the physical representation of one of those "forbidden" monsters in a 3-d format. That is, some sort of figurine made of lead or plastic, etc. If I were to sculpt the basic shape of, say, a Mind Flayer but gave it a different name entirely, what would be the result? Yes, the assumption is that I market and sell the product.

 

[DaveStebbins]

If you want to use slightly different versions of the monsters not included in the SRD, there's always this:

http://www.rpgnow.com/product_info.php?products_id=4546&SRC=EnWorld

I don't own it, but I've heard good things about it.