OGL FAQ

This isn’t always true either. Derivative work is tricky and can be a grey area. It would be up to a court to decide based on several factors. If it appears you’re trying to game the system for profit, it probably won’t end well for you.
There's no such thing as a derivative trademark. Trying to use trademark law to claim ownership of something you're not entitled to is already gaming the system.
 

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Sacrosanct

Legend
It appears that you’re saying the creator/legal IP holder is not entitled to the rights, while inferring that others can do what they want with it as long as numbers are filed off. If that isn’t correct, please clarify for me.

Tell you what. Take the image of darth Vader (trademarked), create an action figure or write a game with that likeness, and sell it and see what happens. Even if you change the name to Garth Tater. Maybe you’ll be fine. Lucas was notorious with being OK with parodies, but Disney not so much. Especially something not a parody but a similar product competing in the same marketplace. I sure as heck wouldn’t take that risk myself.

Paizo and others have gotten away with using the likeness of beholders and mind flayers because the names are protected, but their images aren’t trademarked to the best of my knowledge. Which goes back to my original point. Trademark and copyright are different. And people shouldn’t assume they are or that fair use gives them permission (because they might also be under trademark).
 

It appears that you’re saying the creator/legal IP holder is not entitled to the rights, while inferring that others can do what they want with it as long as numbers are filed off. If that isn’t correct, please clarify for me.
Ah yeah that's what I meant. But there's nothing ironic about that, it's the law.

I've got no plans of making any Wtar Sars figures though. No business case for that, people want the real thing when it comes to such famous characters.
 

Sacrosanct

Legend
Ah yeah that's what I meant. But there's nothing ironic about that, it's the law.
No, that's not the law. There is some grey area around Fair Use, but that's separate from Trademarks (which you yourself even admitted earlier). It seems very strange to me that you'd argue that the creator/legal IP holder doesn't have rights to their work, but the public does. IANAL, and I assumed you weren't either. Perhaps I was wrong about that assumption. But I can't find anywhere in the law that states the legal rights holder doesn't have rights and IP is available for anyone to use as long as you file off the #s under both copyright and trademark laws. My understanding is that things like The Lanham Act do the opposite of what you're assumptions of the law is.

As I mentioned earlier, filing serial #s does not work to circumvent trademark infringement. The very first bullet point is:

  • How similar the marks are. They do not have to be identical.

But again, while sometimes copyright and trademark infringement are clear yes or no, there is a lot of grey area, and people should talk to an attorney.
 

Jerik

Explorer
I can't think of a single monster that's not already designated WotC IP (beholders, mind flayers, etc.) that are in the SRD but are not in the public domain from their use in folklore.

You can't? I sure as heck can.

Aboleths. Ankhegs. Bulettes. Driders. Gibbering mouthers. Glabrezu. Gricks. Hezrou. Otyughs. Remorhazes. Ropers. Rust monsters. Sahuagin. Vrocks. Xorns.

All in the SRD. All original D&D monsters. None of those are in the public domain.

This is not nearly an exhaustive list.
 

Sacrosanct

Legend
You can't? I sure as heck can.

Aboleths. Ankhegs. Bulettes. Driders. Gibbering mouthers. Glabrezu. Gricks. Hezrou. Otyughs. Remorhazes. Ropers. Rust monsters. Sahuagin. Vrocks. Xorns.

All in the SRD. All original D&D monsters. None of those are in the public domain.

This is not nearly an exhaustive list.
Funny enough, Tim Kask owns the rights to the Bulette. The way the rights went in those first days of Dragon magazine, most reverted back to the creator. He advised as such as recently as a few weeks ago.

So I think it would be hilariously funny if Tim exercised his rights and WoTC had to pull all references to the Bulette.
 


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