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Non-OGL Monsters, and whether the concepts / names are fair game


Compatible Products from Other Publishers


So, I own a game shop, and one of my business partners and I are looking to expand our business into the world of game design. We've decided to begin with a Pathfinder supplement to see how it does (and also, because this book in particular would be incredibly useful in our own campaigns, and how awesome would it be to have the book to show the players in our games rather than a Microsoft Word document?). We have a good idea for our book, and I think it should be pretty awesome, but it's going to take a phenomenal amount of research to guarantee its legality, and--though I will ultimately have to do some serious research on the topic--I wondered if anybody knew off the top of their head if any of the following monsters' names and concepts were open for usage, even if certain stat-blocks associated with these names are owned by Wizards of the Coast or Paizo.

Abeil MM2.22
Alcor pre-3.5
Anuchu pre-3.5
Armand MM3.10
Blackscale Lizardfolk MM3.95
Boggard B.37
Catfolk RotW.92
Caiveh pre-3.5
Desmodu MM2.62
Dracotaur MM3.42
Flind (gnoll) MM3.62
Hutaakan pre-3.5
Ibixian MM3.63
Kercpa pre-3.5
Khaasta FF.115
Kopru MM2.134
Kuo-Toa MM.163
Locathah MM.169
Loxo MM2.144
Maedar pre-3.5
Nycter MM3.112
Ophidian FF.133
Phanaton pre-3.5
Phoelarch MM3.121
Poisondusk Lizardfolk MM3.96
Rakasta pre-3.5
Raptoran RotW.65
Sarkrith FF.145
Thri-kreen MM2.195
Urd pre-3.5
Yak Folk MM2.200
Yuan-ti MM.262
Yurian FF.198

I'm sure many of these are completely closed concepts, but I'm likewise positive some of these concepts and names are fair game for spit-shining. If anybody knows for sure on any of these, it would be great to hear from you!


Most of these names are the property of Wizards of the Coast, and using them in a Pathfinder product (or any 3rd-party product, for that matter) would almost certainly get you into trouble (kuo-toa, thri-kreen, and yuan-ti are definite no-nos).

If I were you, I would look to real-world mythology for your critters or come up with your own unique monsters. There’s no risk there.

BD

Grand Lodge

We absolutely intend to come up with our fair share of originals and/or look to mythology, but a lot of these concepts fit great with what we want to do, so I'd just like to explore all open avenues. I had a feeling about the three you mentioned. I remember a Paizo employee specifically mentioning Kuo-Toa as being off-limits when I spoke with him at a trade show once, come to think of it.

Thanks for your help so far!


redcapscorner wrote:

We absolutely intend to come up with our fair share of originals and/or look to mythology, but a lot of these concepts fit great with what we want to do, so I'd just like to explore all open avenues. I had a feeling about the three you mentioned. I remember a Paizo employee specifically mentioning Kuo-Toa as being off-limits when I spoke with him at a trade show once, come to think of it.

Thanks for your help so far!

I'll be blunt. I think using any of the names on your list in a 3rd-party product – with the possible exceptions of boggard and yak folk – is a very bad idea. And I think it’s a downright terrible idea if the monsters you plan to publish are going to closely resemble WotC’s IP.

Again, avoid the risk by using names and monster concepts that aren’t owned by WotC (or anyone else).

BD


Actually, there MAY (and I emphasize the may in this regard, I haven't actually done any research into the topic, so take this with a grain of salt) be one way around your dilemma Benn, but it likely won't make for a very popular product.

The potential work-around, would be to ONLY use the names (of creature types, make sure to stay the hell away from specific creatures), and reference the book and page, like you did above.

In essence, I don't know if they could attack you just for referencing their property, but the statblocks themselves (and their printed fluff, though I imagine you could expand or redefine it within the confines of the product) are off limits for certain.

If somebody knows that I'm wrong, it would be cool if you explained that I am, thanks.


Yeah, I'm actually not interested in their stat-blocks at all, or their fluff as worded. What I'm interested in are the names and general concepts. I'm going to extensively research everything on my list, for certain. I imagine, for instance, that "abeil" is probably fair game, as that's essentially just french for "bee." I could probably print a creature with a similar concept, and call it "abeille" or something. "boggards" seem to be OGL per Paizo, and "catfolk" and "yak folk" are innocuous enough that I doubt I'd run into any problems. Likewise, I believe "maedar" and maybe a few of the other pre-3.5 creations probably come from mythology and won't cause me any problems. I certainly realize, however, that most of my list is probably off-limits. I was just curious if anyone had specific information about anything I listed.

Thanks guys!

Cheliax

Pathfinder Adventure Path Charter Subscriber; Pathfinder Campaign Setting, Companion, Modules, Roleplaying Game Subscriber

I've been toying with a "Mantodean" race for a while now. The only remote reference to thri-kreen I'd make is the rumors of a 4-armed, Large-sized, desert-dwelling barbarian cousin race to the 2-armed, Medium-sized, forest- and plains-dwelling Mantodeans.


First of all good luck.

Second, nothing said in this open list should be your source of legal advice.

Third, remember that if you want to use the OGL license you really should adapt a policy of good will not of challenge. WOTC gets a great deal from other companies using its license(s). They shift the question from strictly copyright to license terms. The terms are more clear and more WOTC friendly than copyright in general.

Although I appreciate the mental exercise and the question has merit, I personally would never begin publishing with an eye to confrontation. Remember your publishing license - what it gives you and what it doesn't.

Sigurd

Cheliax

I've often thought that WotC's claims were on shaky ground. Mostly they're pinning their hopes that legal pressure would keep people from doing anything with the listed product. However usually you can't copyright names and definitely can't copyright ideas, and when it comes to games they can't copyright the actual mechanics only the way it's written. Now they could trademark them which would be a whole different ballgame. Still my initial point is what maters, as unless someone really has the money to go to bat for a set of names in court, who wants to spend the money or deal with the legal headache that would come of it?

Granted my stance is coming from using the product in general, however if you are using the OGL then yes you have to follow it. It's basically a legal agreement as soon as you put it in your book.


Although it may seem like it, and although I could see how WotC would interpret it as such, I'm really not wandering into this from a perspective of confrontation. The product I want to publish will simply be at its best if we're able to use a healthy chunk of creatures with whom people are already familiar. The product (given what it is) would suffer a lot if it were 100% comprised of creatures we developed from the ground up. I'm not trying to piss off anybody at Wizards, and honestly--mechanically--we're not going to be stepping on anybody's toes, or putting together any sort of a book that Wizards ever did or that I think Paizo has any intention of doing. I appreciate all the warnings, but I promise you I'm not going to publish anything without fully checking its legality. I just thought there were probably enough well-versed gaming veterans on here full, of all manner of trivia, that I could begin my research project (not end it) with these boards.

Sigurd wrote:
WOTC gets a great deal from other companies using its license(s).

What do they stand to gain at this point? They're not supporting any OGL product themselves, so it's not like the publication of third-party books helps generate interest in their game. They aren't publishing that game anymore.

Paizo Employee Developer

Benn Roe wrote:
What do they stand to gain at this point? They're not supporting any OGL product themselves, so it's not like the publication of third-party books helps generate interest in their game. They aren't publishing that game anymore.

Whether they support a particular edition isn't the point, legally speaking. From a marketing standpoint, by not supporting the OGL, they make a situation in which you have to switch to 4e or at least buy their books to use a beholder or a carrion crawler.

If you write a song and record it, but then don't release it on new albums, it doesn't mean that someone else can use your song without your permission on their own album.


Tactically, the OGL license binds you according to Wizard's terms and with obligations far more demanding than copyright law. WOTC has a much larger control over their IP while people fall into a license they drew up themselves.

Copyright limits are uncertain and without easy precedent - an expensive proposition in terms of court costs and lawyers fees. The OGL is easier for small companies but it spells out obligatory protections for WOTC. You can't really have it both ways.

I think a lot of companies would like to see a more thorough testing of copyright law but not many can afford to pay for it.

Don't assume they won't defend a point of copyright - they know they will lose future copyright cases is if they ignore widespread infringement, even for small projects.

Besides, in terms of intellectual property the game mechanics are incidental. I have heard that game mechanics basically cant be copyrighted - they're like math. If you make a successful product that makes an iconic monster 'uncool' or just ties your project to its interpretation they have an interest and you must assume they will defend that interest.

Sigurd


yoda8myhead wrote:
Whether they support a particular edition isn't the point, legally speaking. From a marketing standpoint, by not supporting the OGL, they make a situation in which you have to switch to 4e or at least buy their books to use a beholder or a carrion crawler.

I know. I was responding to Sigurd saying that it's great for Wizards when other companies use the OGL, and I was asking in what way. They don't support 3.5 anymore, so other companies using the OGL doesn't generate any sales for them whatsoever. That's all I was asking. I realize that 3.5 being out of print doesn't mean they're just going to let go of their IP from that edition.

Sigurd wrote:
Besides, in terms of intellectual property the game mechanics are incidental. I have heard that game mechanics basically cant be copyrighted - they're like math. If you make a successful product that makes an iconic monster 'uncool' or just ties your project to its interpretation they have an interest and you must assume they will defend that interest.

Right, but nothing in the 3.5 Monster Manual is open content. Not one thing. And yet, the Pathfinder Bestiary contains aasimars, very particular devils and demons, puddings, mephits, chokers, dark creepers, dark stalkers, derro, drow, driders, ettins, girallon, rakshasa, rust monsters, vargouilles, etc., etc. I realize that a lot of the core Monster Manual/Bestiary creatures are the really hardcore fantasy concepts that come from various mythologies, but a lot of that stuff just screams D&D to me. Not one thing in the 3.5 Monster Manual is open content, but somebody from Paizo told me Wizards actually holds exclusive rights to something like only 8 creatures from that book. The fact that Paizo was able to publish the Bestiary, 75% of which is creatures straight out of the 3.5 Monster Manual (with plenty of stat-changes, mind you), leads me to believe a lot more of what Wizards publishes is fair game than they would like people to believe. Something out there makes a choker legal and a beholder not, and that's what I'm trying to figure out. Pathfinder is under the OGL, and as far as I know the Bestiary is perfectly legal. I was just wondering if anybody had the scoop on any of the creatures I listed. Again, I don't plan on using anything from any Wizards stat-block associated with any of those creatures. I would just like to use the names and concepts for as many of them as I can.


Benn Roe wrote:
Right, but nothing in the 3.5 Monster Manual is open content.

Paizo (and other companies re-using WotC open content / OGL) are using the SRD as their source. Not the specific book that the content was published in (usually). Everything in the SRD is open.

The monsters in the Pathfinder Bestiary came from the SRD, another OGL source, or from Paizo directly.


Pathfinder Campaign Setting, Companion, Roleplaying Game Subscriber

Dude its as simple as "if its in the SRD its open content, if its not, its not" hence, that is why you see Chokers but not Beholders. Even if something is open content that doesn't mean its 100% fair game as there are restrictions one must follow. A little bit of research would have gotten you there before coming off as somewhat... uninformed. See d20srd.org. If its in there, its open content.


Benn Roe wrote:
Right, but nothing in the 3.5 Monster Manual is open content. Not one thing.

Not true. Check WotC's official Revised 3.5 System Reference Document for a list of all open content, including creatures in the Monster Manual. In the intro text it states:

WotC SRD wrote:


You may consider this material Open Game Content under the Open Game License, and may use, modify, and distribute it.

The Hypertext d20 SRD has the same info in a far more user friendly set-up.


"WOTC gets a great deal from other companies using its license(s)."

I was not talking about money. I was talking about tactical advantage, market control, respect, power, licensing position etc. The OGL expanded the market that WOTC dominates and gave them better control of that market. A small product might not get the sort of returns that would support WOTC but the popularity of the underlying system has helped them sell big products. What they did with their lead and their publishing success\failure is still up to their own publishing.

Only when the market really saturates or the popularity dips do the smaller products look like lost opportunities. As the market grows I think they look like loss leaders and good advertising.

Sigurd


Flinds are actually mentioned in the gnoll section in the bestiary, iirc. and while the actual names blackscale and poison dusk are up in the air, the bestiary mentions 'Lizard Kings' and the campaign settings mentioned some sort of small lizardfolk with chameleon capabilities


Benn Roe,

There are a HUGE # of OGC source books out there that I think you can use to do what you want, you need to STOP looking at books that don't use the OGL.

If you want to be super lazy just use this series from Expeditious Retreat Press
Monster Geographica: Forest
Monster Geographica: Hill & Mountain
Monster Geographica: Marsh & Aquatic
Monster Geographica: Plain & Desert
Monster Geographica: Underground

In my opinion it covers the best of the OGL/d20 monsters (They do have a huge section 15).

Below is what I consider the best in the monster books of the d20/OGL area after that.

SRD (standard and epic mobs)
Monsternomicon 3.5 [Privateer Press
Monsternomicon II [Privateer Press]
Creature Collection [White Wolf]
Creature Collection II [White Wolf]
Creature Collection III [White Wolf]
Book of Fiends [Green Ronnin]
Legacy of the Dragon [Malhavoc Press]
Jade Dragons & Hungry Ghosts [Green Ronnin]
Denizens of Avadnu [Inner Circle]
Legends of Avadnu [Inner Circle]
Creatures of Freeport [Green Ronin]
Creatures of Rokugan [AEG]
Tome of Horros I [Necromancer Games]
Tome of Horrors II [Necromancer Games]
Tome of Horrors III [Necromancer Games]
Any monster book by BlackDirge Publishing
Complete Book of Templates
Any template book by Silverthrone games

and if your not using the Advanced Bestiary by Green Ronin I don't want to talk to you :)

Honorable Mentions
The Monster Handbook by Fantasy Flight Games
Beast Builder by Expeditious Retreat Press


hunter1828 wrote:
Benn Roe wrote:
Right, but nothing in the 3.5 Monster Manual is open content. Not one thing.
Not true. Check WotC's official Revised 3.5 System Reference Document for a list of all open content, including creatures in the Monster Manual.

Well actually, that's quite true. Only items in the SRD and in books where the Open Content is specifically mentioned are stuff Open Content. Otherwise, even the PHB etc. is Closed Content.


Arakhor wrote:


Well actually, that's quite true. Only items in the SRD and in books where the Open Content is specifically mentioned are stuff Open Content. Otherwise, even the PHB etc. is Closed Content.

If information from a sourcebook is in the SRD it is Open Content. If the book in question says "no open content", but information from that book is included in the SRD, then that specific information in the SRD is Open Content. You just have to use the SRD as your source in your OGL, not the original book. That doesn't change the fact that the information itself is Open Content; it just changes what specific source you are allowed to legally use in your OGL as the source material.


Right! The SRD! I completely forgot about that. I was sitting here, reading my legal text, going "well, somehow this stuff is legal, even though it says it isn't." I didn't even think about the SRD and the fact that so much of the Monster Manual is just right there. Fair enough. That certainly simplifies things.

jreyst wrote:
Dude its as simple as "if its in the SRD its open content, if its not, its not" hence, that is why you see Chokers but not Beholders. Even if something is open content that doesn't mean its 100% fair game as there are restrictions one must follow. A little bit of research would have gotten you there before coming off as somewhat... uninformed. See d20srd.org. If its in there, its open content.

Thanks! I'm not too worried about coming across as uninformed because I am, in fact, uninformed. If I weren't, I wouldn't be asking for advice about this on an internet messageboard. (: I thought I mentioned a few times already that the book is only in its early conceptual stages and that I plan on doing research, but was starting here for a quick answer or two.

Qwilion wrote:
There are a HUGE # of OGC source books out there that I think you can use to do what you want, you need to STOP looking at books that don't use the OGL.

Thanks! That's a really helpful list and I'll certainly take a good long look at as many of those as possible. I've heard of a lot of them, and have a few (including the Advanced Bestiary), but I'll certainly try to track down more of them. I appreciate the help!

Thanks guys!


Yak Folk are based on real world mythology. Apart from that, either they're in the Tome of Horrors of you're probably out of luck.


RJGrady wrote:
Yak Folk are based on real world mythology. Apart from that, either they're in the Tome of Horrors of you're probably out of luck.

If it's a mythological/legendary creature, the name and general appearance and powers are fair game. It just can't be built exactly like one that is not Open Content.

Robert
4 Winds Fantasy Gaming

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