OGL, Trademark, Product Identity, and Pathfinder


Paizo General Discussion


Pathfinder Adventure Path Subscriber

So, here is the question I have been having since the whole OGL 1.1 ruckus has started. My apologies is this has come up and been dealt with in another thread...but there is a lot of conversation out there about this stuff.

I know game mechanics (rules) can't be copyrighted. And it is legally dubious anyway that WotC can actually legal revoke the existing OGL and content published under it. Obviously stuff not in the SRD and WotC property can't be used. Hence no Mind Flayer or Beholder.

And then you have things like Dwarves and Elves. Both derive from folklore and fantasy literature, and the DnD version is generic enough that WotC can't really make a claim to them, and at least in the case of Elves, the Pathfinder version is pretty distinct, what with the whole "aliens from Venus" thing they got going.

Now here is the more complicated situations.

Take Drow. Drow are in the SRD. The name Drow also is from folklore (being an alternative spelling of the more common Trow). However, the description of Drow is basically something that DnD came up with and is fairly unique (even if derived from Black Martians in Burroughs's Mars fiction). That is, Drow being "dark"-skinned, white-haired subterranean elves who are also sadistic chaotic evil and matriarchal, with an association with arthropods. So even if you can't copyright their mechanics, could WotC target Drow for IP/Trademark reasons?

Doubly so with...say...owlbears, or flumphs, or Mimics, which as far as I know are a complete DnD invention. Can WotC claim trademark and IP for them?

If so, does that mean Paizo will have to rework them significantly, or drop them from future products?


Pathfinder Adventure Path, Lost Omens, Rulebook Subscriber; Starfinder Superscriber

Flumphs being memory-holed again! Sad! This happens every 10 years or so!


Pathfinder Companion, Starfinder Adventure Path, Starfinder Roleplaying Game, Starfinder Society Subscriber; Pathfinder Roleplaying Game Superscriber

Paizo have already shifted the presentation and mythology of many creatures away from legacy tropes. For instance, drow in the bestiary are described as

"The hues of their eyes became sinister red or bleached white, and their flesh adopted an unearthly lavender sheen that made the drow instantly recognizable."

This serves the, welcome, purpose of shifting them away from real-life analogies and moves them away from their previous trade dress.

There are close comparisons in Scots and Norse mythology.


From my NOT A LAWYER understanding.

Mechanics can't be copyrighted but Expressions of mechanics can be and the line between them can only be determined on a case by case basis in a court of law which is just really expensive. Stuff like the OGL means nobody has to worry about that line and even just go ahead and copy/paste the Drow mechanics.

Depictions aren't mechanics, which is why Paizo can come after you for selling images of wedge headed kobolds and football headed goblins.

Owlbears and magic missiles are the kind of names I have a question on. I know 'force missile' has been used on non ogl works just to try and get away from magic missile.


Pathfinder Adventure Path Subscriber
Antony Walls wrote:

Paizo have already shifted the presentation and mythology of many creatures away from legacy tropes. For instance, drow in the bestiary are described as

"The hues of their eyes became sinister red or bleached white, and their flesh adopted an unearthly lavender sheen that made the drow instantly recognizable."

This serves the, welcome, purpose of shifting them away from real-life analogies and moves them away from their previous trade dress.

There are close comparisons in Scots and Norse mythology.

Yeah...I am aware of the shift in coloration (although I think that was less to do with DnD comparison and more about some unfortunate implications of having evil elves turn dark-skinned).

There are dark elves in Norse Mythology, however their never really described, and at least some scholars think they are the same thing as Dwarves. I'd still say the PF version isn't terribly dissimilar to the DnD version.


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Pathfinder Companion, Maps, Starfinder Adventure Path, Starfinder Maps, Starfinder Roleplaying Game, Starfinder Society Subscriber; Pathfinder Roleplaying Game Superscriber

Material in the SRD is a big part of the issue. It was written under OGL 1.0a, which WotC claims they have de-authorized but that nearly everyone else claims cannot be de-authorized. So, if WotC does not back down from this claim, there will eventually be a lawsuit over this issue. The implicit promise by WotC not to sue people who use OGL 1.0a along with one of their SRDs in the legally correct manner was a strength of that license that has been lost as a result of WotC's breaking of that promise.

The problem is that most game publishers who in the past relied on the permanence of OGL 1.0a are unwilling to take on WotC in court. As a result, Paizo's statement that they are willing to do this if necessary is highly significant. On the other hand, WotC has achieved much of their goal from trying to de-authorize OGL 1.0a because most publishers are afraid to use it any more.


MMCJawa wrote:
Antony Walls wrote:

Paizo have already shifted the presentation and mythology of many creatures away from legacy tropes. For instance, drow in the bestiary are described as

"The hues of their eyes became sinister red or bleached white, and their flesh adopted an unearthly lavender sheen that made the drow instantly recognizable."

This serves the, welcome, purpose of shifting them away from real-life analogies and moves them away from their previous trade dress.

There are close comparisons in Scots and Norse mythology.

Yeah...I am aware of the shift in coloration (although I think that was less to do with DnD comparison and more about some unfortunate implications of having evil elves turn dark-skinned).

There are dark elves in Norse Mythology, however their never really described, and at least some scholars think they are the same thing as Dwarves. I'd still say the PF version isn't terribly dissimilar to the DnD version.

It was also because a lot of Drow art was already using purple shades because black highlights on black don't work well.


I find it slightly creepy wotc is using exactly the examples of magic missiles and owlbears that I am wondering about lol


Pathfinder Adventure, Adventure Path, Lost Omens, Maps, Pathfinder Accessories, Pawns, PF Special Edition, Starfinder Society Subscriber

Need to crawl thru the SRD as their OGL1.2 says that specific pages are in the Creative Commons Carve out - my bet these are the pure mechanics and likely all the common compound words used in spells and creatures like owl bear and magic missle required using the OGL1.2 and not just the CC part of the SRD.


The tome of horrors by necromancer games took a whole bunch of TSR/wotc IP and produced open content versions of them. (With wizards' blessing).

People using them now are really using necromancer games open content, not WotC IP directly.

(All presuming that the 1.0a was authorised on publication and therefore holds true still).

Liberty's Edge

So for Trademarks, I think they'd have to have individually registered each specific thing as a trademark (such as Drow, Magic Missile, Owlbear etc.) so those won't be protected under trademark law. Magic Missile and Owlbear might be too generic to copyright and they've never attempted to defend it as a copyright even against non-OGL stuff. IANAL though and I have a feeling this is gonna end up in court. Just make sure not to sign onto 1.1/2/3/4/etc because they will all have clauses forcing you to agree with their interperetation of everything and banning you from class action suits.


Steve Geddes wrote:
(All presuming that the 1.0a was authorised on publication and therefore holds true still).

That's the question.

If the claim that that license is no longer a "valid" license (whether you use "authorized", "revoked", "replaced" or whatever). So far, WotC has not budged on its assertion that no new material can be published if it relies on that license.


And the question is if they only care about the 5.1 SRD, OR if all the other stuff released under the OGL including the 3.5 SRD is also 'deauthorized' in their view.


Pathfinder Companion, Maps, Starfinder Adventure Path, Starfinder Maps, Starfinder Roleplaying Game, Starfinder Society Subscriber; Pathfinder Roleplaying Game Superscriber

And the 5.1 SRD was already a "crippled" SRD. There are some very significant parts of D&D 5E that are not in that document and thus cannot be used, although they could be replicated from other games written under OGL 1.0a (for example, the Pathfinder 1 core rules could be used to make a reasonable approximation to the Variant Human and/or Custom Lineage).

Quite frankly, WotC would have been far better off introducing a new version of their old d20 STL and making it impossible to publish OneD&D exclusive material without either it or the DM's Guild license. Then they could have come up with a trademarkable name for this new edition and strictly enforced the prohibition about claiming compatibility with that edition while using 1.0a alone (as they may not be moving far enough away from the 5e rules to make it totally impossible to replicate some OneD&D mechanics using existing open game content). To stop people from calling OneD&D "6th edition", they could announce that edition as coming in 2030 or later.


1.0a makes it impossible for them to make onednd compatible with 5e AND get a monopoly on onednd digital play. Their solution is to kill 1.0a. It's bone headed.

Radiant Oath

https://survey.alchemer.com/s3/7182208/OGL-1-2-Feedback-Survey

Let WotC know what you think!


Pathfinder Companion, Maps, Starfinder Adventure Path, Starfinder Maps, Starfinder Roleplaying Game, Starfinder Society Subscriber; Pathfinder Roleplaying Game Superscriber

I think a big problem is that they learned the wrong lesson from 4e. They are trying to set up a license that is in fact far less palatable to 3pps than the 4e GSL but use language to deceive those affected by it that it is still an "open" license. We must take care not to react better to this new scheme than we did to the 4e GSL because they are saying the words we want to hear in a deceptive way.


Flumphs to my knowledge were never actually OGL-compatible, much like Illithid and Beholders.

Mimics are too generic for Wizards to lock down; good luck going after all those Japanese companies that have been using them in RPGs for the last 30 years, and will continue to do so for the foreseeable future.

Owlbears are a gray area in that they are "iconic D&D" but at the same time are just a basic chimera. Likely why they were OGL to begin with; it's really not worth it for Wizards to try to argue that they own the concept of two animals being mixed together.

Drow are right out. Wizards did not invent the concept of dark elves, so at worst the name Drow would need to be dropped in favor of one of a thousand synonyms like...dark elf, or dokkalfar.

The name and concept of Drow, owlbears, mimics, etc. have also, to my knowledge, not been copyrighted or trademarked. That's not a genie you can put back in the bottle. Things can't really be retroactively copyrighted or trademarked.


Coridan wrote:
So for Trademarks, I think they'd have to have individually registered each specific thing as a trademark (such as Drow, Magic Missile, Owlbear etc.) so those won't be protected under trademark law. Magic Missile and Owlbear might be too generic to copyright and they've never attempted to defend it as a copyright even against non-OGL stuff. IANAL though and I have a feeling this is gonna end up in court. Just make sure not to sign onto 1.1/2/3/4/etc because they will all have clauses forcing you to agree with their interperetation of everything and banning you from class action suits.

They wouldn't necessarily be trademarked nor needed. The artwork would be protected by copyrights as pictorial work. Trademark is used if pictorial work is used like a logo. A logo or title in a unique font would be a trademark. A character used as a trademark such as if the character Mario is used in a logo by Nintendo. They would also have copyrights associated.


Pathfinder Adventure Path Subscriber
Storm Dragon wrote:
Flumphs to my knowledge were never actually OGL-compatible, much like Illithid and Beholders.

Flumphs are open content due to I believe Tome of Horrors, along with a bunch of other less popular things. Hence why they exist in Pathfinder 1E at least

Whether or not they would be if WotC goes through with there deauthorization plan would be the question.

The name Drow also is from folklore, although the depiction of them is a DnD creation.

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