Fruit of the Poisonous Tree (reusing old d20 material)

[DSC-EricPrice]

FFG released a book called Galactic Races under their Dragonstar line which includes a derivative slave race of the mind flayers. The race is called Ith Kon. Now, the OGC declaration only leaves the name and the racial traits and feats open for reuse, but its quite clear to me that they have a lot of the traits of a mind flayer and are a derivative of the mind flayer (their mental blast special power being the most significant). If you look at the IP that wasnt released as open the connection is clearly made.

The question is:

Even though there is no OGC connection made with mind flayers, nor are they mentioned in the OGC text, is it safe and legal to use the stat blocks and feats? Or are these derivatives of now non-open content that should be avoided?

 

[Lizard]

Ideas cannot be copyrighted. The concept of a mind flayer is not protected (and, indeed, the original is a ripoff of Lovecraft to begin with), just the name and the distinctive cultures, etc, WOTC/TSR created. Several of the 'canon creatures' removed from the SRD have mythological/SF antecedents -- the Displacer Beast, for instnace, appeared in an old SF story by, I think, AE Von Vogt.

It strikes me as highly unlikely that WOTC will sue over a creature 'thematically' similair to a Mind Flayer, provided the name, distinctive likeness, and WOTC-specific cultural traits are not copied. But IANAL.

 

[Voadam]

It would be easy enough to generate a legal mental blast based on the 3.5 srd psionics. The names and feel should be fine but you might want to make sure your mechanics all come from open sources just to be on the safe side.

 

[Darrin Drader]

Nice wrokaround. I'll have to remember that next time I have a hankering to use a mind flayer in a product.

 

[trancejeremy]

This is one of those thorny areas. Because WOTC had the mind flayer in the original draft SRD, and a lot of companies, like FFG, included them. But when WOTC changed their mind, they got special permission, and I'm pretty sure Dragonstar was one of those.

Now, strictly speaking, legally you could be okay, because the race in question doesn't mention Mind Flayer or Illithid. But WOTC could argue it's derivative, and at least make a case in court. Would they? Probably not, but...

Anyway, the Pallemon from Bastion Press's Into the Black makes an okay replacement

 

[Sledge]

Strictly speaking all you have to do to include the critters removed from later drafts is to reference earlier drafts of the SRD in your OGL s.15

 

[Lizard]

Strictly speaking all you have to do to include the critters removed from later drafts is to reference earlier drafts of the SRD in your OGL s.15

Wrong.

The critters were NEVER released as Open Game Content. The version of the SRD you are thinking of was published under the 'gentleman's agreement' wherein WOTC promised to eventually release most of the material as OGC provided publishers honoured the changes made.

Once open, always open -- but in terms of the law, the mind flayer (and the other canon critters, like beholders and carrion crawlers) was never open. No version of the SRD *actually released* under the OGL contained these creatures. Only the 'draft' SRD which was never placed under the OGL -- and thus, was never open -- contained them.

WOTC is pretty good about granting permission to use the verboten creatures, but you need to ask first.

 

[DMH]

Anyway, the Pallemon from Bastion Press's Into the Black makes an okay replacement

Bastion came up with a better one in Minions (with a stupid name that means brain eater- paretiophage) and Goodman has another very good one in Monsters of the Endless Dark (Ilkroun).

 

[philreed]

And Ronin Arts has a replacement. We went so far as to make not only the text OGC but also the creature's appearance OGC.

http://www.rpgnow.com/product_info.php?products_id=725&SRC=EnWorld

Bad Axe Games' Grim Tales took our version and adapted it even more -- check Grim Tales for a great variation on the basic concept.

 

[DClingman]

One need not be wrong to get sued.

Dustin