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This question goes out to the lawyer types out there or those with experience in dealing with copyright.
What are the limitations in using a term owned by someone else? I just responded to another thread and used the words Illithid and mind flayer (grr I just said those words again! Reminds me of the Knights who say 'Nee!'). Did I just violate WotC's intellectual property? Can I say: "I am drinking a Coke as I browse these boards while I listen to Metallica"? Have I just abused the IP of Coke and Metallica? (don't sue me Lars, I haven't downloaded any MP3s). Is it wrong for me to say I own a Monster Manual because the term "Monster Manual" is owned by WotC?
My point here is why can't we use the term "beholder" in an OGL adventure in the same way beholders are referenced in Dungeon today: Beholder: Monster Manual pgxxx. Why can't we say Beholder (c)WotC 2000BC-present: Monster Manual (c)WotC 2000BC-present page xxxx?
It seems a tad odd that "Superbowl" has become "The Big Game" and "D&D" has become "Everyone's favorite roleplaying game". I know that on first blush Fair Use may not apply to adventures published for profit, but if the reference was small relative to the body of work copied, did not negatively impact the profitability of the owning entity and increased rather than decreased the potential market for the owning entity's property, it seems like there might be an argument made for Fair Use. Also, there is the scenes à faire to consider. Fantasy will have certain elements in it, and it seems preclusive in the extreme to think that imatative or at least derivative works would not be allowed.
Is this not even worth considering because the courts have made it abundantly clear this is not allowed, or is it not allowed because WotC/Hasboro may file suit and distract Paizo from their business of publishing OGL content and thus is not worth risking.
Any thoughts?
You can say and use Beholder, Illithid all you want while playing D&D at your table, you can even refer to them in a public forum. You just can't go off and offer up some alterations or new ideas around these monsters because you don't have the licensed right to do so in a public forum.
Now, the question of using them in published material is of another matter. First, these two monsters are not part of the OGL, as you know and indicated. Using these monsters in published materials for right of sale would require a granted license by WotC and moreover, most likely a require certain fees for their use. Seeing that WotC has revoked any and all licenses...these beasts can not be used in 3rd party materials published for sale.
Simple enough...
Paizo is going forward purely on OGL now. That means, no WotC settings, beasts, villians or any material you would find in all their splats may be reproduced by Paizo. Hence, Paizo needs a campaign setting, deities, beasts and monsters...or take existing common place mythological beasts and creatures and alter them if already used by WotC and not part of the OGL. Just for starters...
In the end though...at your gaming table, you can use whatever the heck you like with whatevever system, or setting you want.
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This question goes out to the lawyer types out there or those with experience in dealing with copyright.
What are the limitations in using a term owned by someone else? I just responded to another thread and used the words Illithid and mind flayer (grr I just said those words again! Reminds me of the Knights who say 'Nee!'). Did I just violate WotC's intellectual property? Can I say: "I am drinking a Coke as I browse these boards while I listen to Metallica"? Have I just abused the IP of Coke and Metallica? (don't sue me Lars, I haven't downloaded any MP3s). Is it wrong for me to say I own a Monster Manual because the term "Monster Manual" is owned by WotC?
My point here is why can't we use the term "beholder" in an OGL adventure in the same way beholders are referenced in Dungeon today: Beholder: Monster Manual pgxxx. Why can't we say Beholder (c)WotC 2000BC-present: Monster Manual (c)WotC 2000BC-present page xxxx?
It seems a tad odd that "Superbowl" has become "The Big Game" and "D&D" has become "Everyone's favorite roleplaying game". I know that on first blush Fair Use may not apply to adventures published for profit, but if the reference was small relative to the body of work copied, did not negatively impact the profitability of the owning entity and increased rather than decreased the potential market for the owning entity's property, it seems like there might be an argument made for Fair Use. Also, there is the scenes à faire to consider. Fantasy will have certain elements in it, and it seems preclusive in the extreme to think that imatative or at least derivative works would not be allowed.
Is this not even worth considering because the courts have made it abundantly clear this is not allowed, or is it not allowed because WotC/Hasboro may file suit and distract Paizo from their business of publishing OGL content and thus is not worth risking.
Any thoughts?
You should read Mieville's "'tis the Season"...
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_Pathfinder_ will conform to 'America's Favorite Role-Playing Game,' which means I'd rather Jacobs, Mona, et al come up with cool NEW monsters I won't find in the WotC books; _I_ can always add Illithids and beholderkin to my heart's delight, I don't need to see them or have them referenced in the new material.
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Paizo is going forward purely on OGL now. That means, no WotC settings, beasts, villians or any material you would find in all their splats may be reproduced by Paizo. Hence, Paizo needs a campaign setting, deities, beasts and monsters...or take existing common place mythological beasts and creatures and alter them if already used by WotC and not part of the OGL.
I am very excited about the direction Pathfinder will go with OGL material, and the question was really intended to gain a better understanding of the "why and what" of the use of copyrights as opposed to a simple "will there be non-OGL stuff in Pathfinder?", a question that has already been amply addressed on these boards. I was just hoping that "minor" references, even in a public, for-profit forum like Pathfinder, would not warrent a violation of copyright since the reference was not a complete one and referred the reader to the copyright holder's private material. It would seem that not even this is allowed.
Now, what if Pathfinder included a critical review of a WotC monster now and then, including an editorial of sorts on the pro's and con's of designing the monster/class/PrC in a certain way....
... Nevermind :>
_Pathfinder_ will conform to 'America's Favorite Role-Playing Game,' which means I'd rather Jacobs, Mona, et al come up with cool NEW monsters I won't find in the WotC books; _I_ can always add Illithids and beholderkin to my heart's delight, I don't need to see them or have them referenced in the new material.
I am in fierce agreement with you!
Just chipping in my two cents . . .I also am eager to see how Pathfinder uses/interprets OGL monsters. And I for one am a little tired of monsters like spawn of tiamat, beholderkin, and gnolls with class leves being offered to me as *new* monsters --
Paizo has an opportunity to present us with actual new monsters, and if I am correct are free to reinterpret non IP of WoTC; that means we could easily see a Paizo Cyclops, a Paizo abberation to replace the Illithid's niche, a Paizo abberation to replace the beholder niche, etc. Good times ahead I am sure.
...and the question was really intended to gain a better understanding of the "why and what" of the use of copyrights as opposed to a simple "will there be non-OGL stuff in Pathfinder
I'm sorry I couldn't better pin-point the issue for you. You just can't use copyrighted material for financial gain without consent, i.e. a granted license. There are no fine points really. You either can use it with a granted license or you can't.
And I for one am a little tired of monsters like spawn of tiamat, beholderkin, and gnolls with class leves being offered to me as *new* monsters --
I actually like having the level up mechanic for monsters as per the OGL, but I do agree with you on the point of versatility, and definitely look forward to some new insightful monsters and perhaps even new mechanics and/or traits.
Oops; I think I made myself understood . . . I too like leveling up monsters for versatility and a scaling challenge . . . what I was hinting at was the fact that I do not need write-ups in the monstrous manual that do this, which is something WoTC has done . . . I'd rather that page be spent on something new and creative.
Bella Sara Charter Superscriber
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I agree with the Wandering Smith. It's the same as if you decided to write a story about Harry Potter. Even if you set it in Brazil, use no other character from the J.K. Rowling novels, and have him fight Lord Moldevart, it's still copyright infringement.
Now, that being said, there's some wiggle room in the fair use doctrine (e.g., you make a character called Larry Squatter to parody Harry Potter), but you run certain risks relating to treading in the grey areas of the law.
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I've always read Copyright on said monsters when used in certain context as allowable as long as the source material is still required.
for example: say I write an adventure and in that adventure there is an Illithid living in the sewer of the local town. when it comes to the description of the Illithid I can only include references to statistics such as number of hit points, armor class, saves, etc. but I cannot detail the specifics (like how the AC is formulated, a description of how the mind blast ability works, etc.). The entry should also come with a reference to the source material. e.g. see Monster Manual I page XXX.
This still gives you the ability to adjust the monster to fit your game (for example adding class levels, templates, etc) while abiding by copyright laws and refering to the source material.
Well thats how I have interpreted it, please correct me if I am wrong.
you are wrong.
If you plan on making any money off of the adventure (such as by selling it) then you can not use any non-ogl copywrited material.
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Bella Sara Charter Superscriber
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you are wrong.
If you plan on making any money off of the adventure (such as by selling it) then you can not use any non-ogl copywrited material.
To whom are you speaking? Because you most certainly can create a parody work that uses illithids and sell that work. See, for example, Scary Movie, Epic Movie, Date Movie, etc.
There is also wiggle room to use, say, a reference to an illithid in an adventure, though you would be relying even more heavily on the fair use doctrine, which is by no means a safe harbor. It would really depend on the context of the usage.
The problem is that even if you can claim fair use, the copyright holder can still proceed with a suit and get pretty far (e.g., Austin Powers in Goldmember), so it's not a great idea to rely in such a manner.
But I am not wrong. It is not a simple line in the sand (profit=infringement).
Look at it another way - what do you think would happen if some company tried to publish a comicbook/graphic-novel with a character named "Spider-Man"? Marvel would sue them, right? Marvel would say, "We own the rights to that character."
So, it's the same concept with all the non-OGL monsters. WoTC owns the rights to their use. If they wanted to, they could give other companies permission to use them (for a fee, of course). This is what they did by granting Paizo license to use their material. But they have now terminated that agreement.
Now, here's where it gets complicated: suppose you want to write an adventure featuring a beholder - but now you can't call it a 'beholder' anymore... so let's say you make up a "new" monster that is essentially a beholder clone (identical stats, description, etc.) but you give it a new name ("evil eye thingie").
WoTC could probably still sue you, and claim that you had stolen its property. A court would have to make the final determination. In practice, it costs too much money (in legal fees) for companies to go after "little guys" - thus all the violations you see online (some guy writes his own adventure, puts it on a website, and 3 of his friends look at it - no one cares). Worst case, you might get a nasty "cease and desist" letter. But if you somehow create an amazing work of art, and sell a million copies for $20 each - you can expect a call from the WoTC legal department. It's suddenly become worth their time and energy to litigate.
Another historic example - the original 'Dieties and Demigods' book had stats for Elric (and other Melnibonean creatures) - but then Chaosium obtained the licensing rights to those characters and asked TSR to "cease and desist" - thus the 2nd edition came out, with all those characters removed. Chaosium them published it's own RPG game featuring those characters (they did own them after all).
Contributor, RPG Superstar 2008 Top 6
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Note that you can't copyright "illithid" as a word. You could trademark it (no idea if it is), and copyright law does protect the D&D creature as described within the game. What WotC is relying on is that you (1) can't use the D&D rules without being a licensee or following either the D20 or OGL rules. Both the D20 rules and the SRD rules prohibit using product identity, so if you wanted to use "mind flayer" in an adventure, it couldn't be D20 or OGL, which leaves "licensed".
All the Superbowl/Big Game garbage relates to trademark law, not copyright law.
Folks,
Not a lawyer but I dealt with this issue *alot*.
Here is how I understand that it breaks down (and at this point this is my opinion only).
You cannot use a copyrighted term without the copyright holders permission.
Unless it is one time parody use.
You cannot copyright game rules.
So you could do an "Nose Tyrant" with the exact same stats as a Beholder (except with lots of noses that shoot magical snot instead of eyes that shoot rays). However if you create a creature that looks alot like a beholder, has the stats of a beholder and the description of a beholder - you're in trouble again no matter what you call it.
Here is an interesting one - Drow. Technically they are a mythilogical creature - Norse I believe. But if you create a Drow that bears close resemblance to the WotC Drow then you are encroaching on their "instance" of Drow. The contrast would be a Unicorn which, at least as portrayed by WotC, cannot be protected.
Now if WotC created a creature with one horn but based on say a lizard and called it a "Unicorn" then you could not create a similar creature with the same name, description and stats and call it a Unicorn.
Clear as mud?
Anthony "Zulkir" Valterra
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Thanks for all the answers here folks. I guess I was wondering if there was any sort of leeway under Fair Use since the unlicensed use was not a significant portion of the IP and could be argued that no sales damage was caused by the reference and that the nature of the reference actually increased the IP owner's potential market for the IP. To use the Spider-Man example, if I published a comic book and had one of my characters say "He is as quick as Spider-Man" but didn't show Spider-Man nor make him central to the story, I didn't know if that would be acceptable use or not. Also, I was concerned about the transformative aspects of Fair Use, if new works could extend the value of a WotC term to the point that the work was useful in its own right, despite its strong relation to a WotC term and its use for commercial purposes.
I am not arguing with the experienced folks or lawyers that have posted here and am clear on Paizo's approach for Pathfinder; I am just hunting for education on an area of the law I always found confusing and restrictive.
Who wants to use beholders and mind flayers anyway? Boring, tired-old monsters that they are. By the time Paizo's finished you'll be saying "mind flayer who?"
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Who wants to use beholders and mind flayers anyway? Boring, tired-old monsters that they are. By the time Paizo's finished you'll be saying "mind flayer who?"
Call it the senseless pursuance of knowledge for knowledge's sake :)
I am also planning on submitting some monsters (one of the things I like to do in my spare time) and so this topic is of at least a little practical use to me.
Who wants to use beholders and mind flayers anyway? Boring, tired-old monsters that they are. By the time Paizo's finished you'll be saying "mind flayer who?"Call it the senseless pursuance of knowledge for knowledge's sake :)
I am also planning on submitting some monsters (one of the things I like to do in my spare time) and so this topic is of at least a little practical use to me.
With you there buddy!
To whom are you speaking?you are wrong.
If you plan on making any money off of the adventure (such as by selling it) then you can not use any non-ogl copywrited material.
the person in the post just before mine, you know the one who starts his post along the line of "Tell me if I am wrong..."
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I don't know how it would work. It's a guy with an octopus head. It's not like anyone invented it for D&D; it's an homage to great C'thulhu. I'm sure you could make up a "brain thrasher" with a squid head, who blasts and befuddles people with...sonic waves like a porpoise...or better yet...ink! Then dines on their dreams.
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Bella Sara Charter Superscriber
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the person in the post just before mine, you know the one who starts his post along the line of "Tell me if I am wrong..."To whom are you speaking?you are wrong.
If you plan on making any money off of the adventure (such as by selling it) then you can not use any non-ogl copywrited material.
My bad (and in more ways than one, given that I was wrong insofar as the OGL itself prevents the usage of mindflayers/beholders irrespective of copyright law/fair use as a condition to using the license.)
Who wants to use beholders and mind flayers anyway? Boring, tired-old monsters that they are. By the time Paizo's finished you'll be saying "mind flayer who?"
Yes, but unfortunately it also includes lots of races, classes, feats, spells, magic items, etc. OGL is essentially a subset of what's in the core rule books. So, no more worg-riding goblin scouts. No more dread-necromancers casting Evard's Black Tentacles, etc.
On the other hand, there are lots of non-WoTC OGL publishers with good material that has been largely overshadowed thus far. While Paizo was able to put the "official content" sticker on their mags with WoTC's blessing, they were also something of a company mouthpiece, unable to use much (if any) material from "the competition". That will likely change now, which should be good news to many smaller publishers.
On the other hand, there are lots of non-WoTC OGL publishers with good material that has been largely overshadowed thus far. While Paizo was able to put the "official content" sticker on their mags with WoTC's blessing, they were also something of a company mouthpiece, unable to use much (if any) material from "the competition". That will likely change now, which should be good news to many smaller publishers.
I agree completely. I really hope that Pathfinder takes advantage of some smaller stuff and brings d20/OGL content back from the limbo (only IP if used in the context of WotC's cosmology?) to which it's dropped.
El Skootro
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So, no more worg-riding goblin scouts.
I'm quite sure there will be. Worgs stem from norse mythology and have been used as mounts there. And they are OGL. So there's basically nothing WotC can do if Paizo decides to use this concept.
The only problem that could arise is when a cunning PC can bluff the goblin into thinking that he is actually sitting on a large dog. You know, 'cause goblins are dog-haters.
So, no more worg-riding goblin scouts.
nothing wrong with worg ridding goblins scouting around, they would be rogues, fighters, rangers or warriors though since the scout class is not OGC. I think worg riding goblin rangers are cooler then worg riding goblin scouts anyway.
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So, no more worg-riding goblin scouts.nothing wrong with worg ridding goblins scouting around, they would be rogues, fighters, rangers or warriors though since the scout class is not OGC. I think worg riding goblin rangers are cooler then worg riding goblin scouts anyway.
I am a fan of both the swashbuckler and the scout class. Some of the few examples of new non magical core classes by WotC!
But I also preferred ToH I - III and Creature Collection I - III over MM II - IV... ;-)
Greetings,
Günther
Just to clarify, what I meant was, the 'scout' class is not OGL.
There's a 'scout' class in the Advanced Player's Manual. It's open content.
I don't know if this muddies it more or clears it up. But where the OGL is concerned, all of this Fair Use, and allowances for parodies, and the "you can't copyright game mechanics" court rulings are irrelevant. The simple matter is, by agreeing to use the OGL, you waive all rights you might have had to use some of a publisher's material in exchange for using (presumably) more of their other material.
Before the OGL, where the line was drawn as for what is allowable was far from clear. Many lawyers made some good money off of game companies arguing over this line, and it still was far from clear.
With the OGL, the line became a lot clearer (not perfect, of course, but a heck of a lot clearer). So basically, publisher A agrees to avoid certain material created by publisher B, in exchange, B allows A greater access than they could have had before.
So, yes, aside from the OGL maybe Paizo could legally reference "Beholder. Monster Manual pg X" in Pathfinder, but maybe they couldn't. With the OGL, the answer is clear. WotC lets other publishers use drow, frost giants, aboleths, tarrasques, etc. (and most importantly not just the term "drow" but the specific set of stats that we all accept as being what the drow are in D&D). In exchange, WotC requires publishers to avoid beholders, githyanki, displacer beasts, etc.*
These messageboards aren't part of the OGL. So as long as you stick to Fair Use (such as not reposting the entire beholder stat block from the Monster Manual) you are fine.
* I'm sure there's flexibility with parodies and some brief references. But, most importantly, those flexibilities are only at the publisher's whim. So that's why Malhavoc press could have references to baatezu and such in Beyond Countless Doorways but no one else can. Monte asked nicely and they knew him enough to trust him not to abuse it. You could probably publish a "nose tyrant" very direct parody of the beholder, but only if it was funny enough to make WotC's lawyers laugh. :)
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Kobold Press
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I'm sorry I couldn't better pin-point the issue for you. You just can't use copyrighted material for financial gain without consent, i.e. a granted license. There are no fine points really. You either can use it with a granted license or you can't.
Well, that's not quite true; there are some fine points.
Titles can't be copyrighted, by US law. Words can't be copyrighted, by US law. You don't need a license for either of those cases. No one can own "sorcerer" or "Nazi" or "beholder", as a word.
In addition, you can refer to trademarks, titles, and words in print without a license (such as the Mariners or Greyhawk). This is how journalism functions, after all. Trademarks are referred to all the time. So are words.
The sticky bit comes when you want to use WotC's copyrighted game rules. And technically, game rules can't be copyrighted, by US law. So, the bit they claim a copyright on is the text surrounding and elaborating the rules. And that's what the OGL gives you rights to.
UPDATE: Ok, Ken beat me to it. Shoulda read down the *whole* thread.
Another historic example - the original 'Dieties and Demigods' book had stats for Elric (and other Melnibonean creatures) - but then Chaosium obtained the licensing rights to those characters and asked TSR to "cease and desist" - thus the 2nd edition came out, with all those characters removed. Chaosium them published it's own RPG game featuring those characters (they did own them after all).
Eh, not quite true. Chaosium licensed the rights. Gygax independently asked Moorcock if TSR could publish the Elric creatures and Moorcock said yes. Thus, 1st edition DDG has them in it. Then Chaosium saw that and complaint, they figured out the "problem" (Moorcock HAD said it was OK, after all), and to smooth ruffled feathers TSR agreed to put a "special thanks to Chaosium..." notice on one of the first pages of the 2nd print run. Then Lorraine Willams took over TSR and decided she didn't want her company thanking any other company in its books and had them take out the Elric stuff (Gygax wanted to fill the removed pages with new material but Lorraine said no, it was more profitable at a shorter page count) ... but the special-thanks was accidentally left in, and that's the 3rd edition. Eventually TSR took out the special-thanks, and that's 4th-edition.
I may be off a little bit in my edition numbers, but that's basically how it happened. There was never an issue of using the Elric material without permission ... one company went through Moorcock's agent and paid for a license, the other company went to Moorcock himself (I don't think any money changed hands over the TSR agreement).
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Contributor
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Just to throw another monkey wrench or two.
If Paizo were to go the route of thinly disguising non-OGL material to avoid copyright/trademark issues, it's likely that a significant minority of their readers would think that was really lame. Furthermore, they might get upset if a large portion of text reproduced stats that were essentially just a beholder. Or going the other route, they might make it 'clear' that this is really a beholder, and not print the stats, and a certain part of the audience would fail to understand, and be angry that there were no stats.
But more importantly, I think, is the fact that Paizo is on good terms with WotC and wants to stay that way, despite how many Paizo supporters may feel. Paizo might be able to get away with abusing the OGL from a legal standpoint, but it would probably strain this relationship.
And is it worth it to do either of these things? No. Because if they write an adventure that a beholder can fit nicely into, they can put their own cool thing in. And if a DM reads it and thinks that it would be cool to replace that new monster with a beholder, he can. And everybody is happy.
All my uninformed opinion.
Craig Shackleton,
The Rambling Scribe
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Contributor
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If Paizo were to go the route of thinly disguising non-OGL material to avoid copyright/trademark issues, it's likely that a significant minority of their readers would think that was really lame.
Or, to put it more succinctly, you could exchange the phrase "a significant minority of their readers" with "the editorial Pit" and you'd still be right. ^_^
On the subject of trademarks and copyrights, are the Lovecraft monsters trademarked, copyrighted, or otherwise?
I'm sure Pathfinder would be a great setting for some nightgaunts, gugs, or gnoph-kehs. (To name a few.)
On the subject of trademarks and copyrights, are the Lovecraft monsters trademarked, copyrighted, or otherwise?
I'm sure Pathfinder would be a great setting for some nightgaunts, gugs, or gnoph-kehs. (To name a few.)
Depending on the monster and when it was published (yadda-yadda), if the copyright holder fails to renew the copyright, it falls into "public domain" and could conceivably be used. I'm sure that even if they can't be used, I'm sure Pathfinder will have a few areas that are Lovecraftian in feel (if Doc Jacobs has anything to say about it).
You know there were some really cool beasties in the Edgar Rice Burroughs stuff, I wonder if that is available to license? I got my start as a kid on read with with Tarzan of the Apes and John Carter of Mars. With out him I'd likely be an illiterate auto mechanic making twice what I am now.
Thanks for the corrections, Rezdave. I was fairly sure my answer was not 100% accurate, but it was close enough. :)
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What type of Worg ridding scouts are you talking about?
Boy Scouts
Girl Scouts
Military Scouts
Frontier Scouts
People are free to replace anything in any setting with anything as long as its for personal use. To Many people don't have an imagination anymore. Look at the Boards, people needing advice on where to place a setting, what character types to use. People think for yourself. Every since our group started playing we used our own variations of rules.
Elves and Dwarves were Pcsclasses long before before they "officially" could. They could advance past a certain level before they could. Half-Ogres where a PC Race, We Used Weapon Specialization a long time before it was "official". We have given Kolbolds, Orcs, Goblins and Other Humanoid races Classes every since we started in 1978. I don't need a Game Mechanic telling me how to do it.
What type of Worg ridding scouts are you talking about?
Boy Scouts
Girl Scouts
Military Scouts
Frontier ScoutsPeople are free to replace anything in any setting with anything as long as its for personal use. To Many people don't have an imagination anymore. Look at the Boards, people needing advice on where to place a setting, what character types to use. People think for yourself. Every since our group started playing we used our own variations of rules.
Elves and Dwarves were Pcsclasses long before before they "officially" could. They could advance past a certain level before they could. Half-Ogres where a PC Race, We Used Weapon Specialization a long time before it was "official". We have given Kolbolds, Orcs, Goblins and Other Humanoid races Classes every since we started in 1978. I don't need a Game Mechanic telling me how to do it.
Sometimes its nice to see if someone has worked on something ahead of time, if they have had some good ideas that had not occured to you, and in general if they can just help you to brainstorm so as to jumpstart your own creativity.
Reading through other people's ideas not only gives me new ideas, but it challenges me to make my campaign better because I see what others have come up with in their campaigns.