Why weren't Aboleths copyrighted?


Pathfinder First Edition General Discussion

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Silver Crusade

Or other creatures, like the Otyugh, for that matter. Some monsters, while inspired by the lore and myths of other cultures and literature, do not seem to have a true to tie to any public material.

In that sense, where creatures like the Thri-kreen, Illithid, and Beholder, have managed to become copyrighted, a plethora of other unique creatures produced by TSR managed to get the slip.

Was it a financial matter? Were the creatures not popular enough to be a worthwhile enough investment?

Were some of the monsters that I have mentioned, in fact, produced by OGL contributors during the days of old, and were protected from any purchases as IP?

I'd imagine that every case out there, including the ones I can't recall or mention, is unique. Would anyone care to enlighten me to any examples that may have stood out in his/her memory as to why some creatures have or haven't become copyrighted?


All of that is copyright protected. The OGL doesn't remove copyrights it just licenses you to use the copyright protected works as per the OGL.

Silver Crusade

So it was just a matter of Paizo choosing not to use some of these creatures? Perhaps I have a poor understanding of how OGL works...


Basically, if it's in the SRD, then it's available via the OGL. If it's not there, it's not useable.

Silver Crusade

Pathfinder Adventure Path Subscriber

Back during the SRD development, the then-much-more-liberal-than-later WotC Brand Management decided to keep the most iconic D&D creatures (which they decided to include beholders, illithids, giths etc) closed content and release the rest.

Paizo Employee Chief Technical Officer

Volkspanzer wrote:
Were some of the monsters that I have mentioned, in fact, produced by OGL contributors during the days of old...?

There was no OGL in the days of old. When Wizards of the Coast published the OGL twelve years ago, they added some creatures to their SRD, allowing them to be used in any OGL product, and they reserved others exclusively for their own use. The reasoning behind their specific choices remains a mystery.

Silver Crusade

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Pathfinder Adventure Path Subscriber
Vic Wertz wrote:
Volkspanzer wrote:
Were some of the monsters that I have mentioned, in fact, produced by OGL contributors during the days of old...?
There was no OGL in the days of old. When Wizards of the Coast published the OGL twelve years ago, they added some creatures to their SRD, allowing them to be used in any OGL product, and they reserved others exclusively for their own use. The reasoning behind their specific choices remains a mystery.

I suspect that with a host of books on beholders, illithids and giths published towards the end of 2ed lifecycle, the "currently trending" monsters were considered "iconic" at that time.

Contributor, RPG Superstar 2010 Top 4

I wouldn't be surprised if they didn't wish they'd kept them out of the SRD.


I was never able to figure out their logic on why some iconic D&D critters were left in the OGL and others were taken out. It feels really random.


Jim Groves wrote:

I wouldn't be surprised if they didn't wish they'd kept them out of the SRD.

Well there was a mention of an attempt to lure paizo into signing away their rights to use SRD material, but didnt fall for the high pressure push.

Mostly because nothing was offered in return.


Some monsters can't be copyrighted at all because they have a base in myth,legend or folk lore. Such as Hydra or Chimera, or even Oni and other Demons. That why they are so many telling of the stories. They can copy right there version of it for distribution but never the actual content so these things are free to use. There is a lot I found in these books from old 2nd, they where just renamed and alter slightly. Such as shadow dragon is not just ubral dragon.

You will notice the creatures you mention never existed in a legend, but where created for the game. Beholder and Illithid where made up by the people who created Forgotten Realms so they are copyrighted by the creator and protected as intellectual property. Thri-kreen are from Darksun. If you look thru the monsters they are either ones are from folk lore of some sort or abandon literature. A few others are rename like the Shadow dragon was and re stated but it core is the same as it was in D&D


KainPen wrote:


You will notice the creatures you mention never existed in a legend, but where created for the game. Beholder and Illithid where made up by the people who created Forgotten Realms so they are copyrighted by the creator and protected as intellectual property. Thri-kreen are from Darksun. If you look thru the monsters they are either ones are from folk lore of some sort or abandon literature. A few others are rename like the Shadow dragon was and re stated but it core is the same as it was in D&D

Technically, most of those creatures precede the properties you are associating them with. Beholders and mind flayers existed before TSR published the Forgotten Realms. Thri-kreen may have thrived in Dark Sun, but they predate that campaign as well.

The main point of all of this is that these creatures are original intellectual properties that WotC considered sufficiently iconic or important to D&D that they withheld them from the SRD. There are others that they didn't withhold, presumably because they didn't feel they were sufficiently iconic or important, I guess.


ikki3520 wrote:

Well there was a mention of an attempt to lure paizo into signing away their rights to use SRD material, but didnt fall for the high pressure push.

Mostly because nothing was offered in return.

Do you have any more information on this? I haven't heard this particular bit of news before.


Mort the Cleverly Named wrote:
ikki3520 wrote:

Well there was a mention of an attempt to lure paizo into signing away their rights to use SRD material, but didnt fall for the high pressure push.

Mostly because nothing was offered in return.
Do you have any more information on this? I haven't heard this particular bit of news before.

Somewhere in the archives.

I think James Jacobs mentioned it in the "post-dungeon & now what?" -discussions in the boards here, and the wild plans of making pathfinder. May not even have had a name then.


For what it's worth, here's the list of "protected" creatures:


  • beholder
  • gauth
  • carrion crawler
  • displacer beast
  • githyanki
  • githzerai
  • kuo-toa
  • mind flayer
  • slaad
  • umber hulk
  • yuan-ti


and i wouldnt be too surprised if JJ et al would be unwilling to talk about it much. The talks were nasty on the forums back then, the edition wars barely begun... and althought they (3.5e vs 4e) are largely over (won?) i sure as asmodeus know its not something paizo wants repeated or reminded much.

But then the very young do not always do as they have been told :D

Paizo Employee Director of Brand Strategy

I think, perhaps, you're thinking of some of the language in the original GSL that caused some confusion regarding releasing material under both the GSL and OGL (which was, if I'm not mistaken, clarified and not what folks thought originally). In any case, there wasn't anything shady going on at that time; WotC was doing their thing and we were doing ours and other than the public release of the GSL and Paizo's opportunity to publish under it or not, no additional licenses were offered, considered, or declined.

Dark Archive

Pathfinder Pathfinder Accessories Subscriber; Pathfinder Roleplaying Game Superscriber; Starfinder Charter Superscriber
Vic Wertz wrote:
Volkspanzer wrote:
Were some of the monsters that I have mentioned, in fact, produced by OGL contributors during the days of old...?
There was no OGL in the days of old. When Wizards of the Coast published the OGL twelve years ago, they added some creatures to their SRD, allowing them to be used in any OGL product, and they reserved others exclusively for their own use. The reasoning behind their specific choices remains a mystery.

Pssst... twelve years ago is sliding into 'the old days' now...

Paizo Employee Chief Technical Officer

Enlight_Bystand wrote:
Vic Wertz wrote:
Volkspanzer wrote:
Were some of the monsters that I have mentioned, in fact, produced by OGL contributors during the days of old...?
There was no OGL in the days of old. When Wizards of the Coast published the OGL twelve years ago, they added some creatures to their SRD, allowing them to be used in any OGL product, and they reserved others exclusively for their own use. The reasoning behind their specific choices remains a mystery.
Pssst... twelve years ago is sliding into 'the old days' now...

Not relative to the creation of aboleths, illithids, or beholders!

Sovereign Court

Enlight_Bystand wrote:
Vic Wertz wrote:
Volkspanzer wrote:
Were some of the monsters that I have mentioned, in fact, produced by OGL contributors during the days of old...?
There was no OGL in the days of old. When Wizards of the Coast published the OGL twelve years ago, they added some creatures to their SRD, allowing them to be used in any OGL product, and they reserved others exclusively for their own use. The reasoning behind their specific choices remains a mystery.
Pssst... twelve years ago is sliding into 'the old days' now...

NO!

I still consider the eighties the days of old, not the late nineties and early 2000s...don't make me feel old please...


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Hama wrote:
Enlight_Bystand wrote:
Vic Wertz wrote:
Volkspanzer wrote:
Were some of the monsters that I have mentioned, in fact, produced by OGL contributors during the days of old...?
There was no OGL in the days of old. When Wizards of the Coast published the OGL twelve years ago, they added some creatures to their SRD, allowing them to be used in any OGL product, and they reserved others exclusively for their own use. The reasoning behind their specific choices remains a mystery.
Pssst... twelve years ago is sliding into 'the old days' now...

NO!

I still consider the eighties the days of old, not the late nineties and early 2000s...don't make me feel old please...

They're playing Guns N' Roses on classic rock stations now. Grab your cane and come sit on the bench with the rest of us.


Shadowborn wrote:
They're playing Guns N' Roses on classic rock stations now. Grab your cane and come sit on the bench with the rest of us.

LOL that is not old. Old is remembering going to the local game store to buy the brand new AD&D Player's Handbook. Now that makes one old.


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Shadowborn wrote:
Hama wrote:
Enlight_Bystand wrote:
Vic Wertz wrote:
Volkspanzer wrote:
Were some of the monsters that I have mentioned, in fact, produced by OGL contributors during the days of old...?
There was no OGL in the days of old. When Wizards of the Coast published the OGL twelve years ago, they added some creatures to their SRD, allowing them to be used in any OGL product, and they reserved others exclusively for their own use. The reasoning behind their specific choices remains a mystery.
Pssst... twelve years ago is sliding into 'the old days' now...

NO!

I still consider the eighties the days of old, not the late nineties and early 2000s...don't make me feel old please...

They're playing KoRn on classic rock stations now. Grab your cane and come sit on the bench with the rest of us.

Fixed that for ya. :)

Sovereign Court

Korn? Already? Gods...i feel so old now...

Contributor

Hama wrote:
Korn? Already? Gods...i feel so old now...

I know...I'm coming undone at the thought.

Contributor, RPG Superstar 2010 Top 4

2 people marked this as a favorite.
Hama wrote:
Korn? Already? Gods...i feel so old now...

I remember when Casey Kasem played "Silly Love Songs" by Paul McCartney and Wings on America's Top Forty, and it was a new and contemporary song.

I AM OLDER THAN TIME ITSELF! I AM FROM THE DARK TAPESTRY! I AM DESNA'S SECOND COUSIN!

Edit: I'm sorry, where were we? Aboleth's. Sneaky catfish. I am glad we have access to them to develop cool adventures.


2 people marked this as a favorite.

Ryan Dancey explained this a number of years back. The only creatures from the 3rd edition Monster Manual that were declared PI were monsters that Mr. Dancey, the Brand Manager at the time, thought:

1) WotC had good title to, and
2) WotC could actually make money from by licensing for non-game products (t-shirts, plushies, et cetera).

The only monsters that, in the opinion of Ryan Dancey in 2000, met both those criteria were "beholder, gauth, carrion crawler, displacer beast, githyanki, githzerai, mind flayer, illithid, umber hulk, yuan-ti". So they were reserved, while everything else in the 3rd edition Monster Manual was released.

Eventually, of course, WotC started putting out monster books without releasing anything into the SRD, and so it looked like the monsters they released were the special exception, rather than the reverse. But originally, the approach was release everything except for a handful.


Mark Moreland wrote:
I think, perhaps, you're thinking of some of the language in the original GSL that caused some confusion regarding releasing material under both the GSL and OGL (which was, if I'm not mistaken, clarified and not what folks thought originally). In any case, there wasn't anything shady going on at that time; WotC was doing their thing and we were doing ours and other than the public release of the GSL and Paizo's opportunity to publish under it or not, no additional licenses were offered, considered, or declined.

It was my recollection that not only was there some confusion that was cleared up but the restriction was actually changed, not just clarified. If they didn't intend for a for a product line to be GSL or OGL and NOT both, their language didn't say that at all. There's a reason that Clark Peterson (bona fide lawyer at the time) of Necromancer Games balked at it so badly after waving the new edition standard all during its development. And they did take it back to the drawing board to soften it in some ways - just not enough to win Clark (or several other 3PP) back.

RPG Superstar 2009 Top 32

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The githyanki one being claimed is a little weird, personally, as they were written two years prior to being published/associated in D&D by George R.R. Martin in Dying of the Light; in which they were a psychic race of warriors enslaved by an alien race. This is without attribution to George, I might add, who didn't even know of them until sometime after the new millennium.

And illithid visually resemble star spawn by a fair bit, an established Lovecraftian race that are essentially man-sized version of Cthulhu, who itself would be best described as a mindflayer with wings.

Sovereign Court

Virgil wrote:

The githyanki one being claimed is a little weird, personally, as they were written two years prior to being published/associated in D&D by George R.R. Martin in Dying of the Light; in which they were a psychic race of warriors enslaved by an alien race. This is without attribution to George, I might add, who didn't even know of them until sometime after the new millennium.

And illithid visually resemble star spawn by a fair bit, an established Lovecraftian race that are essentially man-sized version of Cthulhu, who itself would be best described as a mindflayer with wings.

Let's not forget that Ctulhu also has A LOT more then four tentacles on his face...

At first i didn't get the hassle about the IP monsters. People could just make their own, convert them from 3.5 or pick up one of the numerous statblocks out there.

Then i realized that none of those monster can be used for any AP or module. And then i cried.


The thing about copywrite is in order for it to matter it has to be challenged in court. The fact that githyanki existed prior doesnt matter if WotC claims it and no one says 'no'

Similar situation with the sladd, which were as i understand it only licensed for fiend folio. If wotc claims them and no one argues with it it really doesn't matter if outside claim existed.

its really why in paizo's case in any violation they ask somone to stop, even when the violation is clearly not 'bad' because they have to to maintain ownership.


Virgil wrote:
The githyanki one being claimed is a little weird, personally, as they were written two years prior to being published/associated in D&D by George R.R. Martin in Dying of the Light;

If the determinations had been done after a massive search and review by lawyers, it would have been weird. Done unilaterally by a D&D Brand Manager who was running down the list of published-in-MM monsters, you simply go, "Huh, he apparently didn't know that when he was picking them out."

There's actually a second potential legal issue on WotC's title, with the interaction of British copyright law and the dissolution of TSR UK Ltd., regarding monsters from the original Fiend Folio. It's quite possible as a matter of law that the monsters in that book reverted to their authors.

As a matter of law, however, both those facts just lock up the githyanki harder. If you use the SRD under the OGL, you're required by Section Seven of the terms of the license to accept the SRD's declaration of PI. So, if they actually belong to George R.R. Martin, and their original D&D writeup belongs to Charles Stross, then you'd need permission of all of WotC, Martin, and Stross to use them.


Quick lesson in copyright.

Copyright does not protect an "idea." It protects specific expressions of an idea. Taking the Illithid, for instance:

Wizards' copyright protects the story of the Illithids, protects the name Illithid, protects the pictures they have made of the Illithid. The pictures, NOT the concept envisioned in those pictures.

Technically, any of us can write a story about a creature running around with tentacles on its face. We can even make it greenish and have it enslave people. We can't call it an Illithid, and we can't use Wizards' background or names of specific Illithids. We can't use the pictures they have commissioned and to which they have rights. We can make our own pictures.

Thing is, it has to be recognizably different. But it can be similar, because they can't copyright the idea. It has to be original enough for a court to agree that it is not a derivative work and stands on its own. Submitting your own copyright application can help you out in this regard. Intent also means a lot. You can parody or use satire against a thing to prove it is different enough.

Now, some of you are going to say that, even if you technically haven't violated a copyright, or feel a court would agree with you on the differences, Wizards is still a big company with a lot of money, and the litigation costs alone would put you out of business... and you'd be right. The big guys can pretty easily hurt you, even if the Library of Congress has handed you a certification for copyright.

In the case of the Illithid, I can point to a specific other manufacturer who uses a similar design and sells models that can be used as Illithids, royalty-free from Wizards, because the basic idea is not what is protected.

Right here.


As to the original question:

Why were Aboleth and Otyughs not excluded along with Illithids, Beholders and the like?

That's a really good question. Don't get me wrong, I'm glad they're available for use. I think Vic says it best upthread when he states that it will probably remain a mystery.

If the anecdote regarding Ryan D. is true, I'm not sure why he didn't think he'd be able to license these other two. Okay, sure, Otyughs are not something you're going to put on a lot of T-shirts, but neither are Carrion Crawlers.

As for what was "trending" at the time, that makes more sense. But it still seems weird that Carrion Crawlers and Displacer Beasts make the list but Aboleth didn't. Aboleth were pretty trendy at one point during 2nd Edtion. Night Below is still a well-regarded boxed set from that time.

Just like the inscrutable goals of the Aboleth themselves, I imagine the answer will always remain. . . "unknown". Dun, dun, duuunnnnnnn. . .


danielc wrote:
Shadowborn wrote:
They're playing Guns N' Roses on classic rock stations now. Grab your cane and come sit on the bench with the rest of us.
LOL that is not old. Old is remembering going to the local game store to buy the brand new AD&D Player's Handbook. Now that makes one old.

Yeah, I remember that. I was 10 when I got mine. Not at the local game store though. I was unaware such things existed. Picked mine up at Walden Books.

I didn't even know about the Martin/githyanki connection. Doesn't surprise me though.

RPG Superstar 2009 Top 16, 2012 Top 32

Neo2151 wrote:

For what it's worth, here's the list of "protected" creatures:


  • beholder
  • gauth
  • carrion crawler
  • displacer beast
  • githyanki
  • githzerai
  • kuo-toa
  • mind flayer
  • slaad
  • umber hulk
  • yuan-ti
  • the many hundreds of other monsters WotC created that weren't included in the SRD*

*EDIT: Except those monsters mentioned by Gorbacz in the following post.

Silver Crusade

Pathfinder Adventure Path Subscriber
Epic Meepo wrote:
Neo2151 wrote:

For what it's worth, here's the list of "protected" creatures:


  • beholder
  • gauth
  • carrion crawler
  • displacer beast
  • githyanki
  • githzerai
  • kuo-toa
  • mind flayer
  • slaad
  • umber hulk
  • yuan-ti
  • the many hundreds of other monsters WotC created that weren't included in the SRD

- the ones included in Tome of Horrors (Orcus, grippli, marid, Aurumvorax, dark stalker/creeper, Necrophidius, Jubilex ...)

RPG Superstar 2009 Top 16, 2012 Top 32

Bruunwald wrote:

Quick lesson in copyright.

Copyright does not protect an "idea." It protects specific expressions of an idea. Taking the Illithid, for instance:

Wizards' copyright protects the story of the Illithids, protects the name Illithid, protects the pictures they have made of the Illithid. The pictures, NOT the concept envisioned in those pictures.

Small nitpick: in the U.S., the names "illithid" and "mind flayer" are protected by trademark law and their strong association with the D&D brand; copyright law doesn't protect names in and of themselves.

Silver Crusade

Epic Meepo wrote:
]Small nitpick: in the U.S., the names "illithid" and "mind flayer" are protected by trademark law and their strong association with the D&D brand; copyright law doesn't protect names in and of themselves.

It would be interesting to note, in that case, that Square/Squaresoft/Square-Enix has made use of 'mind flayers', high level monsters with tentacled squid-heads that use 'mind-blasts', in several of their Final Fantasy titles.

While I could understand Wizards(TSR) not being able to do much about it for the media sold in Japan or other countries, I'm surprised the English localization has made use of this strikingly similar creature of said name with what appears to be no repercussions for YEARS.

RPG Superstar 2012 Top 16

As for history:

Illithids, beholders, umber hulks, displacer beasts, and carrion crawlers are in the 1E Monster Manual.

Githyanki, Githzerai, Slaad, Kuo-Toa (and Drow, and Lolth) are in the 1E Fiend Folio.

Yuan-Ti are in the MM2. I'm not sure Gauth were 1E at all, hazy on them. They might be a 1E FR monster. Aren't they a beholder subset?

==Aelryinth

Grand Lodge

Dancey included the Githyanki on his list of protected monsters in 2000, BUT the Githyanki are not included in the 3.0 Monster Manual.

So here's my question,...
Why was the Githyanki not in the 3.0 Monster Manual especially considering Dancey specifically kept it from the SRD? And I don't think that it's a protected monster because it's released in a later monster book because it is in the 3.5 Monster Manual making it part of the SRD when 3.5 was published.

(I've always wondered why Skip Williams left out the Githyanki -- a huge and uncharacteristic blunder from one of the top 5 designers we've ever known.)

Silver Crusade

W E Ray wrote:

Dancey included the Githyanki on his list of protected monsters in 2000, BUT the Githyanki are not included in the 3.0 Monster Manual.

So here's my question,...
Why was the Githyanki not in the 3.0 Monster Manual especially considering Dancey specifically kept it from the SRD? And I don't think that it's a protected monster because it's released in a later monster book because it is in the 3.5 Monster Manual making it part of the SRD when 3.5 was published.

(I've always wondered why Skip Williams left out the Githyanki -- a huge and uncharacteristic blunder from one of the top 5 designers we've ever known.)

Considering how strongly tied the Githyanki are to the Githzerai and Illithid lore that is present, they can probably rest easy knowing that it isn't likely that they can be used as a stand-alone race. They'd basically lose their identities if you were to somehow force Githyanki into a universe where the others don't exist.


Weird, if the stuff about Dancey is true, that DROW were released.


boldstar wrote:
Weird, if the stuff about Dancey is true, that DROW were released.

Too much prior art in the form of Norse legend.


Ryan Dancey Quote.


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Well, rumour has it that someone tried. But they kind of didn't like it and sent a big rock his way.


Drow are from folklore. Shetlands or Hebrides, can't remember which. Although in folklore they were less dark-skinned, white-haired elves, and more ugly troll-like fairies. Might have been to much of a headache to copyright the background/appearance when the name itself couldn't be protected.

On top of that, I actually think the appearance/personality of Drow is taken from a race in one of the Barsoom books, so really, not a whole lot of originality there to cling to.


Pathfinder Maps, Pathfinder Accessories Subscriber; Pathfinder Roleplaying Game Charter Superscriber; Starfinder Charter Superscriber
W E Ray wrote:

Dancey included the Githyanki on his list of protected monsters in 2000, BUT the Githyanki are not included in the 3.0 Monster Manual.

So here's my question,...
Why was the Githyanki not in the 3.0 Monster Manual especially considering Dancey specifically kept it from the SRD? And I don't think that it's a protected monster because it's released in a later monster book because it is in the 3.5 Monster Manual making it part of the SRD when 3.5 was published.

(I've always wondered why Skip Williams left out the Githyanki -- a huge and uncharacteristic blunder from one of the top 5 designers we've ever known.)

The Gith were held back for the 3.0 Psionics Handbook, most of which was added to the SRD as well.

Contributor

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MMCJawa wrote:
Drow are from folklore. Shetlands or Hebrides, can't remember which. Although in folklore they were less dark-skinned, white-haired elves, and more ugly troll-like fairies.

... which is why D&D/OGL drow are distinct from folklore "trow."

In the same way that if I create a race of short, orange-skinned, hairless creatures who eat only bacon and call them "elves," they're quite distinct from folklore elves, Tolkien elves, and D&D/OGL elves.

MMCJawa wrote:
On top of that, I actually think the appearance/personality of Drow is taken from a race in one of the Barsoom books, so really, not a whole lot of originality there to cling to.

I'm a big fan of the Barsoom books, and I don't recall any of the Barsoomian races looking like drow (the black-skinned martians look human, not elven, and I don't think they have white hair) or have a culture like drow (they worship a female queen as a goddess, but she is a mortal, and not associated with spiders).

Evil elf + underground + matriarchy + spider goddess + unique magical powers = original concept, in the same way that samurai + spacefaring culture + psychic powers + laser swords = original concept.


It's possible that the dark elves have a root in the Prose Edda since they are swarthy, apparently evil (at least their behavior contrasts with the light elves as much as their forms do), and live underground. Even without considering the spiders and matriarchy, that's probably enough reason to not try to make them particularly important IP, withheld from the SRD.

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