Question about "Defiling Magic" term use

[Strutinan]

In an upcoming mini-pdf PHB insert at the end of the month, I plan on introducing "Defiling Magic" into mainstream 3.0/3.5 games. The rules for it are easy to understand, and very smooth.

The problem is that I am worried about getting {bleeped} at by WotC legal over the term. Despite the fact that it was used, even in similar context, in the Malleus Mallifarcum (published over 100 years ago), I get the feeling that they are going to try and claim copywrite over it. It is similar to trying to claim copywrite on "season's greetings" or "melee combat", two terms that have been around FOREVER (just more widely known).

As per usual, my e-mails to anybody at WotC are ignored, and I can't even OPEN their message boards any more. So getting an "official" answer will most likely have to wait until later on.

So I am posting this inquiry here for three reasons:
#1 To get some helpful advice from others in the 3rd-party industry.
#2 To maybe embarrass somebody from WotC into actually replying to me (I get the feeling I've been banned from their server, lol).
#3 (will not be gone into. I'll give this one last shot for a quite resolution)

 

[Planesdragon]

The problem is that I am worried about getting {bleeped} at by WotC legal over the term. Despite the fact that it was used, even in similar context, in the Malleus Mallifarcum (published over 100 years ago), I get the feeling that they are going to try and claim copywrite over it. It is similar to trying to claim copywrite on "season's greetings" or "melee combat", two terms that have been around FOREVER (just more widely known).

Howdy, Strutinan.

Does the Malleus Mallifarcum contain a description of Defiling magic as-such? If so, I would feel safe in calling that a prior source. OTOH, it's not a copyright that you need to worry about; it's trademark.

As for WotC--are you sending a message to someone in particular, or just their main "customer help" line?

Since it's a PDF, I wouldn't worry too greatly. If WotC did claim "defiling magic" as a trademark (not copyright), you could just re-issue the PDF.

 

[Strutinan]

I already checked the USTPO (federal agency in charge of these things) database, neither "Defiling" nor "Defiling Magic" is a current OR LAPSED trademark term. Point of fact, there are several handy links on that sight dealing with trademark and copywrite law. USTPO

As for the passage in the Malleus Mallifarcum, it talks about defiling the land in order for witches to cast spells, by using the stolen divine essence of the very earth itself. It may not say it in D&D/d20 terms, but that is Defiling Magic to a "T".

As for e-mails, I've sent them to the legal dept, general customer service, and the "d20 product manager". In the past every e-mail I've sent to a WotC address has been lost, and it seems the tradition continues. That is why I think my e-mail address might be blocked.

 

[Strutinan]

I just managed to get back onto the WotC boards long enough to ask about this. Evidently the server had laoded a cookie onto my computer that was blocking my access to my account and any page that queried my account. Given that I had to enter such a page to log out of my aco, I was effectively blocked from even READING the message boards.

I deleted the cookie responsible, logged back into my account, and posted the topic in the "d20 General" forum.

 

[Nellisir]

I am not a lawyer, blah blah blah.

I'm assuming you're not copying the rules straight out of Dragon (or Dungeon, or Dark Sun), so the problem is strictly the nomenclature. That leads to this question...

Why call it "defiling" at all?

My thesaurus (Roget's International 5th Edition), includes the following under one entry (there are others): corrupt, debase, degrade, degenerate, deprave, debauch, defile, violate, desecrate, deflower, ravish, ravage, despoil, contaminate, pollute, vitiate, poison, infect, taint, canker, ulcerate, pervert, warp, twist, distort....

Defiling magic has a pre-established bias in the D&D community. If you're looking to build on that, then you are, in a sense, exploiting WotC's intellectual property. Ordinarily you (or I) might not care, but since you're concerned about pretty much exactly that...just change the name.

There are some pretty cool OGC taint rules in Unearthed Arcana.

Cheers!
Nell.

 

[Strutinan]

Your thesaurus actually gave you quite a few synonyms which help with the decision to use "Defiling", specifically: corrupt, debase, degrade, degenerate, violate, desecrate, deflower, ravage, despoil, vitiate, poison, taint, canker, and ulcerate

Also, dictionary.com lists two very apt definitions for "defile":
#1: To make filthy or dirty; pollute
#2: To debase the pureness or excellence of; corrupt

As far as "WotC's Intellectual Property" goes, the point is that it is not their IP. The systems they have presented in the original Dark Sun books, and later in Dragon magazine are. This system is it's own work.

Thanks to the Mallius Mallifarcum, the concept of "Defiling Magic" has been public domain since BEFORE there was a D&D. WotC cannot legally lay claim to "elf" thanks to nordic myth, it is the same thing. They can lay claim to their adaptation of "elves", and of "Defiling", but they have NO legal right to stop another agency from using those terms. If another agency decieds to make "elves" that are highly magical, near-immortal, and have pointy ears then they are NOT "ripping off WotC's IP", they ARE keeping close to the public domain material that WotC is also using. The same holds true for making a magical subsystem by which you steal the "divine essence" of the land in order to cast spells.

My concearn is that they are going to TRY. I know I would win, THEY know I would win, the question is do they think it is worthwhile to persue the matter. This is after all just going to be a small pdf that will be selling for a buck.

I've tried being nice about this, and talking to them about it. Unfortunately they refuse to respond.

 

[Strutinan]

As for using "taint" from UA, no way. The idea is to have a NEW system for this concept, not to parrot an OLD system. That is why my new Defiling Magic system is noticably different than the 2e one. The only common concepts between it and the 2e one used in Dark Sun is the term "Defiling", and the idea of robbing the land for magical power. Both of these were originally presented in Mallius Mallifarcum. Where do you think Troy Denning & Timothy B. Brown got the idea? (the original creators of Dark Sun)

 

[Planesdragon]

Remember that (1) the OGL doesn't require "trademarks" to be registered or even claimed as US Gov't trademarks and (2) if WotC doesn't respond to you, it's probably safe to interpret that as "our non-lawyer staff doesn't think this is a problem, and we don't feel it's a big enough concern to spend our lawyer-time on it right now."

 

[Strutinan]

You are right, but to be PI something has t have the PPOTENTIAL for being trademarked or copywriten, even if it is not. The term "Defiling Magic" is public domain, so ti cannot be Trademarked or Copywritten, and therefor cannot be PI.

If I don't get an official answer by the end of the month, then I satisfied my evidenciary requirement should this ever come to a counter-suit (my lawyer again). At this point I'm not expecting a reply until monday at the earliest.

 

[Vanuslux]

I hate how this thread ever needed to even be thought...but sadly in the legal system people like Todd McFarlane get to act like they own a commonly used word like "spawn" just because he created a flash in the pan hit character who happened to be named Spawn...even though he was clearly named that as a descriptive of what he was...a descriptive that obviously existed long before Todd McFarlane was even born. It's like someone having a comic character who looks like a minotaur named Minotaur and if he's successful the creator going around forcing Mongoose to rename the Slayer's Guide to Minotaurs to the Slayer's Guide to Bullpeople.

Anyway, I doubt defiling magic is a big enough thing for WotC that they'd bother with a bogus lawsuit over it (and it would obviously be bogus...but that doesn't mean it couldn't happen or that they couldn't win).