This is just this simple question: Which of the Archdukes of the Nine Hells and the Demon Lords in D&D are copyrighted by WotC and which are "public domain".
I'm pretty sure for example Baalzebul, Mammon, Orcus and Baphomet are free to use, since their names are taken straight out of Mythology.
But I'm not so sure about all of them.
I assume it's a deal like with Tiamat, where the name itself is not subject to copyright, but the specific form and role she takes on in the D&D multiverse is?
Let's perhaps start with the ones where the situation is clear cut then.
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Pazuzu is a Babylonian demon lord with two pairs of wings and bestial features, associated with the demons of the wind.
Non public domain features: a bird face.
Azazel is associated with ritual scapegoats, and is also taken as a name of the Serpent and/or evil, depending on your religion and sect.
Non public domain features: he has a specific diabolic appearance, but it's very similar to a generic devil.
Satan is just a derivative of Shaitain, meaning "adversary," the accuser of the Hebrew Bible, often associated with the Devil.
Non public domain features: being overthrown by Asmodeus
Demogorgon is a name for some kind of cthonic deity so ancient we don't know the original representation. He might actually be a typo. As an underworld figure, often identified as a demon by Christians. He is said to dwell in Chaos.
Non public domain features: potentially most of what you what recognize, especially two baboon heads, tentacles, etc.
Orcus was considered by the Romans to be a tormentor of the dead. He gave his name to orco, that is, an ogre, and other monstrous figures, and is the origin of the name orc. Frequently conflated with Pluto and Dis Pater.
Non public domain features: his specific representation as a corpulent figure that resembles traditional depictions of Baphomet.
Tiamat was a goddess of the ocean. Her sometimes depiction as a serpent probably inspired the D&D version.
Non public domain features: being evil, being a devil instead of a goddess, the multiple dragon heads, the D&D chromatic dragons
Thanks RJGrady, this is a great help already.
Fraz-Urb'luu, Graz'zt, Zuggtmoy and Yeenoghu are fully Wizard's property I assume?
I feel like this part of Wizards' FAQ about the OGL is appropriate reading:
I'd never seen that FAQ before. Wish I'd known about it earlier. I think it's great they provided that.
Dragon magazine had a series of articles called The demonomicon of Iggwilv where the real-world origins of the names were laid out. And yes, Yeenoghu, Graz'zt and Fraz-Urb'luu are original WotC names. Likely Demogorgon as well.
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Via Tome of Horrors the following are OGL:
Baphomet
Fraz-Urb'luu
Jubilex
Kostchtchie
Orcus
Pazuzu
Geryon
Mammon
Of course, most of the names of others like Demongorgon, Mephistopheles, Asmodeus, etc are public domain but not the D&D specific description.
Mammon means "greed" and is Biblical. In the Middle Ages, Mammon was personified into one of the seven princes of Hell.
Geryon was an evil titan that tormented Hercules.
Baphomet comes from the Middle Ages and is part of the slander of Satanism laid against the Templars; he is said to be a demon to which the Templars prayed. The name is mostly likely a corruption of Muhammed, misheard by un-knowledgeable Christian informants. His depiction as a goat-headed, sometimes androgynous being, flanked by nude devotees and occult signs, goes back to the earliest grimoires.
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Koschei is an ugly old man from Slavic folklore whose soul is kept in an egg outside his body, which is protected in various ways and stops him from ever dying (unless someone takes hold of his egg).
Chief Technical Officer
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Via Tome of Horrors the following are OGL:
...
Jubilex
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...and note this post in particular....
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I'm honored. :)
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None of the demon lords are "copyrighted" because there is no such thing as copyright on a fictional character.
Rather, various of these (and other) creations have been claimed as 'product identity' materials by different companies participating in a common licensing agreement (i.e. the OGL). This agreement basically says, 'If you allow me to use stuff you have created then I will allow you to use stuff I have created... except for anything we identify as product identity materials'.
Thus, if you sign on to the OGL you can use anything other companies have published under the OGL unless they have identified it as product identity materials... which has been done for various demon lords (and under different spellings) as discussed earlier in this thread.
If you DON'T sign on to the OGL then anything you use which is similar to materials from another company (whether claimed as 'product identity' or not) could potentially lead to an intellectual property suit... likely for trademark infringement. In such case the company would essentially be claiming that the materials used are known in the marketplace to be associated with their company, and thus by using these materials you are trading on the reputation of their company to enhance your own. Historically, this would be a tough case to make (cf. Tolkien Enterprises vs TSR), but the courts (and lawmakers) have been expanding intellectual property protections steadily for decades... and even if you DID win, the legal expenses would very likely be ruinous.
Note that, unlike copyright, there is no requirement for a trademark to be original (e.g. names from historical sources can be trademarked, cf. 'Tesla automotive') and they never expire so long as the company continues to use them.
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there is no such thing as copyright on a fictional character.
Of course there is. Copyright protects any creative, original, non-generic work and that includes fictional characters. Here's a sweet little primer on at which point does a fictional character stop being a non-copyrightable idea and becomes a distinct expression which is protected under copyright.
trademark infringement
99% of D&D IP owned by Hasbro is copyrighted, not trademarked. Umber Hulks aren't trademarked, they are copyrighted, and if you use them without WotC's approval, you're in for a C&D followed by a copyright infringement lawsuit. Same goes for using "Demogorgon as a two-baboon-headed demon lord". Or using a massive blob full of eyes demon lord who is named Juiblex. As opposed to using a massive blob full of eyes demon lord who is named Jubilex, which is fine as long as you go with OGL.
Note that, unlike copyright, there is no requirement for a trademark to be original (e.g. names from historical sources can be trademarked, cf. 'Tesla automotive') and they never expire so long as the company continues to use them.
They expire, in most jurisdictions, after 10 years unless they are renewed. So, if you forget to do that, they expire.
In theory, you might refresh them ad infinitum *BUT* American courts have this funny little precedent which says that basically you must actively defend your trademarks if you wish to retain them. So you pretty much have to, on a regular basis, c&d or sue someone in order to be able to prove to the court that you actually care about that trademark. Note, this is mostly a 'Murican thing, Yurpeen jurisdictions are far more forgiving.
Why oh why can't I make a living from this knowledge in Poland? ;-(
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99% of D&D IP owned by Hasbro is copyrighted, not trademarked. Umber Hulks aren't trademarked, they are copyrighted, and if you use them without WotC's approval, you're in for a C&D followed by a copyright infringement lawsuit. Same goes for using "Demogorgon as a two-baboon-headed demon lord". Or using a massive blob full of eyes demon lord who is named Juiblex. As opposed to using a massive blob full of eyes demon lord who is named Jubilex, which is fine as long as you go with OGL.
You're right about specific fictional characters (not sure what I was thinking there... Mickey Mouse is the classic example), but I'm surprised by the claim on Umber Hulks. Do you have any source for them being "copyrighted" rather than trademarked?
The whole reason we have halflings (hobbits), wights (nazgul), treants (ents), balor (balrogs), et cetera in the various descendants of original D&D is that a court ruled you could not copyright the characteristics of a fictional race. Further, call it something different and then you aren't violating trademark either.
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You're right about specific fictional characters (not sure what I was thinking there... Mickey Mouse is the classic example), but I'm surprised by the claim on Umber Hulks. Do you have any source for them being "copyrighted" rather than trademarked?The whole reason we have halflings (hobbits), wights (nazgul), treants (ents), balor (balrogs), et cetera in the various descendants of original D&D is that a court ruled you could not copyright the characteristics of a fictional race. Further, call it something different and then you aren't violating trademark either.
Umber Hulks don't show up in any U.S. federal trademark database, nor in the EU Alicante database. They're not trademarked. Neither are carrion crawlers or pretty much every monster that isn't open content.
What courts ruled is that you cannot claim copyright on ideas of fictional races. Because you generally can't copyright ideas, such as game rules or concepts of fictional beings. But what you can claim copyright on is a particular expression of the idea. Let me walk you through it, taking halflings as example.
- a race of small humans = idea, non-copyrightable
- a race of small, hairy-footed humanoids who live in fantasy worlds = idea, non-copyrightable
- a race of small, hairy-footed, chubby, home-body humanoids who are called hobbits, live in the pastoral hills, are slightly kleptomaniac and love to smoke pipeweed = expression, copyrightable, claimed by the Tolkien estate
- a race of small, hairy-footed, chubby, home-body humanoids who are called halflings, live in the pastoral hills, are slightly kleptomaniac and love to smoke pipeweed = expression, copyrightable, claimed by the TSR/WotC/Hasbro, subsequently made open content via OGL.
"But Gorbacz, where is the border between idea and expression? At which point does one become the other?". Well, people get paid millions of dollars to provide an approximate answer to that question which would hold up in the court. Got some spare change?
"But Gorbacz, why won't Paizo just take Umber Hulks, rename them and print them?" Because they don't want to have legal fees arising from a lawsuit by Hasbro wrecking their business. You really don't want to find out whether your brazen reskin didn't violate somebody's copyright in court. After you printed the books. And after you paid 1m in fees, which just blew up your bottom line.
"But Gorbacz, you silly bag, Final Fantasy has mind flayers!" Yup, it does, and Square didn't pay WotC a dime for that. How come they got away? Because a) they are not a direct competition for D&D and b) Square is Japanese and under statutory law jurisdictions, punitive damage lawsuits are pale shadows of what they are under 'Murican law. Taking a) and b) together, somebody at Hasbro decided that ROI an such a lawsuit would be crappy and not worth the effort.
Hope that helps a bit.
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- a race of small, hairy-footed, chubby, home-body humanoids who are called hobbits, live in the pastoral hills, are slightly kleptomaniac and love to smoke pipeweed = expression, copyrightable, claimed by the Tolkien estate
Acutally, it was Tolkien Enterprises (aka Saul Zaentz), not the estate... and he sued TSR for trademark, not copyright, infringement. Hence my confusion.