# Can anyone write Cthulhu Mythos material?



## Alzrius (Aug 5, 2008)

We all know about how, when TSR put out the original _Deities and Demigods_ book, they got in trouble with Chaosium for printing material about the Cthulhu (and Melnibonean) Mythos. Apparently - while the copyright of the actual Lovecraft stories is in doubt - only they were allowed to write Mythos material for RPGs.

However, recently Paizo has been printing Cthulhu-related material in _Pathfinder_ (and even sporadically in _Dungeon_ before that), apparently without any complaints from the Chaosium people. Hence, is it now alright for any third-party company to write material with, about, or otherwise having to do with (elements of) the Cthulhu Mythos?


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## Baron Opal (Aug 5, 2008)

The copyright date has long since expired on any of Lovecraft's work, I should think. You can make any kind of game about it if anyone can print a collection of his stories. 

And, if you want to throw down, all you have to do is take Chaosium up on any legal challenge they make. I would be surprised if they have the money to sue. You just have to make sure it is in a different system.


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## frankthedm (Aug 5, 2008)

Depends what you use and who you ask. Some folks will argue all of the HPL material is fair use. BUT that's only the HPL material. Individual authors that wrote on in the mythos may easily fall under their own rights and Chaosium can lay claim to anything they expounded on themselves.

Chambers  "yellow sign" stuff predates even HPL's works so it has a great chance of lying in public domain.


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## Alzrius (Aug 5, 2008)

Baron Opal said:


> The copyright date has long since expired on any of Lovecraft's work, I should think.




I'm no lawyer; my understanding of copyright comes from a class I recently finished having spent some time on it. In regards to the copyright status of Lovecraft's work, I point you to the Wikipedia section on that topic. It has a single paragraph regarding the Mythos in RPGS:



> Chaosium, publishers of the Call of Cthulhu role-playing game, have a trademark on several Lovecraftian phrases and creations, including "The Call of Cthulhu", for use in game products. Another RPG publisher, TSR, Inc., original publisher of Advanced Dungeons & Dragons, included in one of that game's earlier supplements, Deities & Demigods (originally published in 1980 and later renamed to "Legends & Lore"), a section on the Cthulhu Mythos; TSR, Inc. later agreed to remove this section from subsequent editions because of Chaosium's intellectual property interests in the work.


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## evilref (Aug 5, 2008)

Yes...and no.

Some Mythos material is in the public domain (almost everything by Lovecraft is in, albeit this has never seen a legal challenge to confirm this and there is some controversy over it relating to Derleth).

Some is assuredly in the public domain in some countries and less clear in others (different countries apply rights after death differently).

Some rights are held by Arkham House and Chaosium (the latter has a trademark on the phrase 'The Call of Cthulhu).

Some is copyright by individual authors or their trusts and/or publishers (Lovecraft wasn't the only person to write in the Mythos as he positively encouraged other writers to contribute to the general mythology of his works).


Cthulhu-related doesn't automatically mean they're in breach or not as even if they were inspired by a particular Mythos element that isn't in the public domain, they could still not be in breach depending on what was actually put in the book.

Note, if you're asking out of anything more than curiosity then I'd strongly suggest contacting an IP lawyer (ideally one who specialises in literary rights). While the bulk of the mythos material's rights are relatively simple (certainly compared to something such as conan, which is both in, and not in, the public domain and has yet to be resolved in a court) there are some curve balls there which could trip someone up.


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## Brown Jenkin (Aug 5, 2008)

To expand further, the reason that many Lovecraft works (not other authers, look up each individually) are now being used more freely is that last year many of the disputed copyrights aged into public domain. There are still some in dispute depending on whether they were done under contract or not and whether they were registered or not since there is a different time frame on those. Even with these, anything before 1923 is public domain. Trademarks however do not expire and Chaosium does own a very limited number of these.


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## demiurge1138 (Aug 5, 2008)

Also, note that Cthulhu himself isn't one of the Mythos elements in Pathfinder. And Pathfinder's sure to put in little sidebars telling people to check out Chaosium products if they want more Mythos gaming goodness. I'm sure that goes a long way towards smoothing any ruffled feathers with Chaosium.


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## WayneLigon (Aug 5, 2008)

I think there are often different rights for different media, and much of Chaosium's rights devolve, if I remember correctly, from Arkham House. They're licensed to produce Cthulhu material for gaming, so they might have rights in the gaming arena for the use of certain beast, phrases, etc. Any *RPG game *material probably has to pass through them though I think if someone had the money to withstand a test case, they'd win based on how generic it's become.

As far as Cthulhu-_esque _beasts, and themes, almost anyone can use those. It's become such a universal meme in the last 20 years that it's entered common usage. Look at the first Hellboy movie, for example.

As far as novels and short fiction, _anyone _can write a Mythos story. Every major horror writer and most minor ones have at least one Mythos reference in some work they've done and a whole lot of them have done so for many years. I'd say that if anyone wanted to make a stink about it, Lovecraft and his fellow Inklings so poisoned those rights by borrowing and re-borrowing back and forth that it would be impossible to enforce.


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## Shemeska (Aug 5, 2008)

While the vast majority of HPL's work is long since reverted to public domain, as I recall, there are a handful of stories that Lovecraft ghostwrote, or revised/rewrote for other authors that have their individual copyright as defaulted back to that original author/client or their heirs. Only a scant few stories still have active copyright holders from that pool of revisions and such, but I don't recall off the top of my head which ones they were.

Of course, I don't know how much you could use certain elements from them in game material or fiction as an homage without getting into problems (if anyone still cared, which I really doubt).

And for the sake of humanity, if you do anything mythos related, keep Derleth's stuff out of it. Ugg.


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## CountPopeula (Aug 5, 2008)

As has been mentioned, it's a big, muddled mess. Since Call of Cthulhu is in the public domain pretty much everywhere on earth, you could reprint the story or use any aspect of it in pretty much any way you'd like. But since "The Call of Cthulhu" is trademarked, you couldn't call it "The Call of Cthulhu." At least not externally.

Arkham and Chaosium are very likely exerting rights over Lovecraft's work they don't actually own. Since The Call of Cthulhu (the story) is in the public domain, that means exactly that. It doesn't mean "public domain, except for RPGs." Public domain makes no exceptions.

However, much like the Wizard of Oz, only the earlier and not the later parts of Lovecraft's mythos writings are in the public domain. So if you used something from a later book, that would still be (and will all ways be) under copyright (in the United States). So while I don't think anyone could claim a copyright to Cthulhu or his likeness, if you included things from later works of Lovecraft, that would be infringing.

Also, since trademarks don't expire, a lot of companies will trademark things that should be in the public domain to keep them out. Like when Disney's movies go into the public domain, they've trademarked the likenesses of their characters to keep people from using them. It's much more costly and time-consuming than creating new intellectual properties, but that's what it takes to live off the creativity of others rather than your own.


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## James Jacobs (Aug 5, 2008)

The status of Lovecraft's writing as regards copyright are indeed pretty muddled, but as far as I've been able to tell... most everything he wrote seems to be in the public domain. At least... until someone comes along with a legitimate claim to that copyright... and while all indications are that no such claim exists (at least... no paperwork to prove it seems to still exist), that doesn't mean that it's a closed case.

For the Lovecraftian elements we've included in Pathfinder (and those elements have also drawn from the writings of other authors involved in that scene, like Frank Belknap Long and Algernon Blackwood), we have been in contact with Chaosium and make sure to point our readers back at them if they're looking for more info about Cthulhu in gaming... as is only right and proper, to be honest, because Chaosium REALLY understands this stuff and their work with Call of Cthulhu is up there with the best in the industry. In some cases it IS the best in the industry.

Certainly Lovecraft himself would approve; he encouraged other writers to use his creations in their stories (which is why you'll see familiar names pop up now and then in stories by Robert E. Howard, Clark Ashton Smith, Fritz Leiber, Robert Bloch, etc.). Furthermore, the tradition of building on the mythos continues to this day, with writers like Stephen King, Ramsey Campbell, Brian Lulmley, Colin Wilson, Neil Gaiman, and countless others building on the mythos and expanding it further with their own inventions. All of this is a huge part of why the Lovecraft Mythos has gained such a powerful foothold; it's really become its own myth cycle, to be honest, which is a big part of the reason why certain monsters that tie into the mythos seem to be more "legit" than ones that don't.

Anyway... it IS a relatively tangled legal mess, and I've found that even when utilizing elements that are 99.999% likely in the public domain, it's best to secure the blessing of those who have gone before you.

And as for the original Deities & Demigods snafu... that wasn't actually legal trouble that got the Cthulhu and Elric stuff taken out, but certain members of TSR management who didn't want what they felt was a free advertisement for the competition in one of their products.


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## S'mon (Aug 5, 2008)

Given the registration requirements of US copyright when Lovecraft was writing, it looks like most of his work, like RE Howard's, was never copyright protected to begin with, so the mooted 75 year copyright term is very unlikely to apply.  As an IP lawyer I'd advise anyone trying to enforce rights in the 'mythos' (or Conan) to rely on Trade Mark law, not copyright.


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## S'mon (Aug 5, 2008)

James Jacobs said:


> And as for the original Deities & Demigods snafu... that wasn't actually legal trouble that got the Cthulhu and Elric stuff taken out, but certain members of TSR management who didn't want what they felt was a free advertisement for the competition in one of their products.




LOL!    Wow, I never knew that.  I do remember reading that Michael Moorcock, who certainly does own copyright in the Elric stories, happily gave permission, not realising he'd given Chaosium exclusive RPG rights already.


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## Angellis_ater (Aug 5, 2008)

The one thing I have heard is that Chaosium holds a trademark for "Cthulhu Mythos" and I do believe most problems have arisen because of the use of this phrase.


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## Asmor (Aug 5, 2008)

It's really kind of a shame that this is such a complicated issue... From what I understand, Lovecraft was quite open with his creations and in fact actively encouraged others to use them and expand the mythos. I suspect that were he still around, he'd want everyone to share and share alike.


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## pawsplay (Aug 5, 2008)

Be very careful about commissioning art for Cthulhu stuff; many of the images with which we are familiar were created by Arkham or Chaosium are some specific elements might be considered part of a trademark. For instance, if you wante to illustrate Cthulhu, I would strongly suggest going back to the original works for inspiration rather than working from Chaosium illustrations.


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## James Jacobs (Aug 5, 2008)

pawsplay said:


> Be very careful about commissioning art for Cthulhu stuff; many of the images with which we are familiar were created by Arkham or Chaosium are some specific elements might be considered part of a trademark. For instance, if you wante to illustrate Cthulhu, I would strongly suggest going back to the original works for inspiration rather than working from Chaosium illustrations.




Also an excellent point. It is indeed pretty complicated.


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## CountPopeula (Aug 6, 2008)

According to a basic search on the Trademark Electronic Search System, at http://www.uspto.gov/, there are only two active trademarks on Cthulhu. One is The Call of Cthulhu, held by Chaosium, which applies to "rules book and supplements for playing a fantasy roleplaying game." The second is The Cthulhu Cult Collector's Edition, held by Visceral Pictures of Tarzana, California and applies to "prerecorded digital video discs, prerecorded video cassettes, prerecorded compact discs and written explanatory material, namely, pamphlets sold therewith, featuring movies based on stories of the author known as HP Lovecraft."

Chaosium also held the trademark Cthulhu for President, but abandoned the mark in August 2006.

It appears, then, as long as your role-playing game material does not build upon work copyrighted by Chaosium (which would include original fiction and game text, etc.) or use the phrase "The Call of Cthulhu" there would be no conflict.

Cthulhu Mythos does not appear to be trademarked.

On the other hand, I'm not a trademark (or any kind of) lawyer. But one could assume if it was a registered trademark in the US, it would be in the database of US trademarks maintained by the US government.


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## Umbran (Aug 6, 2008)

pawsplay said:


> Be very careful about commissioning art for Cthulhu stuff; many of the images with which we are familiar were created by Arkham or Chaosium are some specific elements might be considered part of a trademark.




To heck with them being part of a trademark - the images are apt to be covered by copyright themselves.  The source stories has gone into the public domain, but not the far more recent images.


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## S'mon (Aug 6, 2008)

pawsplay said:


> Be very careful about commissioning art for Cthulhu stuff; many of the images with which we are familiar were created by Arkham or Chaosium are some specific elements might be considered part of a trademark. For instance, if you wante to illustrate Cthulhu, I would strongly suggest going back to the original works for inspiration rather than working from Chaosium illustrations.




Recently created artwork (probably all Chaosium art) is copyright protected.  That it's derivative of HPL's work is unlikely to prevent this.

Trade Mark law only apples to marks that indicate the origin of goods and services, so I doubt much if any of this art is actually TM-protected.


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## S'mon (Aug 6, 2008)

CountPopeula said:


> On the other hand, I'm not a trademark (or any kind of) lawyer. But one could assume if it was a registered trademark in the US, it would be in the database of US trademarks maintained by the US government.




Yes, but - in US law, unregistered brands can be protected as "Unregistered Trade Marks" - which is what (TM) means in the US, with (R) for registered marks.

In the UK (TM) means a Registered Trade Mark, we have Passing Off law which functions similarly to US unregistered marks.

Basically what that means is that even if you don't use Chaosium's lone registered mark; if customers look at your product and think it comes from Chaosium or is licensed by them, you may have committed a tort.  A disclaimer may be helpful.


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## S'mon (Aug 6, 2008)

CountPopeula said:


> A
> It appears, then, as long as your role-playing game material does not build upon work copyrighted by Chaosium (which would include original fiction and game text, etc.) or use the phrase "The Call of Cthulhu" there would be no conflict.




You can use the term descriptively - you can publish the public domain story "The Call of Cthulu" and call it that.  You should avoid publishing an RPG titled "Call of Cthulu" though.


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## deadplayer (Aug 6, 2008)

frankthedm said:


> Depends what you use and who you ask. Some folks will argue all of the HPL material is fair use. BUT that's only the HPL material. Individual authors that wrote on in the mythos may easily fall under their own rights and Chaosium can lay claim to anything they expounded on themselves.
> 
> Chambers "yellow sign" stuff predates even HPL's works so it has a great chance of lying in public domain.




Right.


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## Steely Dan (Aug 6, 2008)

Asmor said:


> It's really kind of a shame that this is such a complicated issue... From what I understand, Lovecraft was quite open with his creations and in fact actively encouraged others to use them and expand the mythos.




Yeah, didn't he correspond with Robert E Howard?


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## Belorin (Aug 6, 2008)

Steely Dan said:


> Yeah, didn't he correspond with Robert E Howard?




He did indeed, as well as Clark Ashton-Smith and Robert Bloch!

Wikipedia link

Bel


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## Belorin (Aug 6, 2008)

As to the OP, did you mean actual Cthulhu Mythos elements or merely writing  in a Lovecraftian style? 

Bel


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## rgard (Aug 6, 2008)

Steely Dan said:


> Yeah, didn't he correspond with Robert E Howard?




Yes he did.   Along with Clark Ashton Smith Howard was a member of the "The Lovecraft Circle."


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## Steely Dan (Aug 6, 2008)

rgard said:


> Yes he did. Along with Clark Ashton Smith Howard was a member of the "The Lovecraft Circle."




Didn't Robert use Tsothagua (sp?) or something in a Conan story?


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## JohnRTroy (Aug 6, 2008)

Much of the Lovecraft work is public domain, and could be adapted.  I think any studio could make an adaptation of one of Lovecraft's novels.  There was an episode of The Real Ghostbusters that was named "The Collect Call of Cthullu" and used the character.

The big problem is that you can't grab the whole Mythos, because others have contributed to it.  Brian Lumley, for instance, has stated that his contributions to the Mythos in his stories still belong to him and will sue to make sure his copyright isn't violated.


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## Alzrius (Aug 6, 2008)

Belorin said:


> As to the OP, did you mean actual Cthulhu Mythos elements or merely writing  in a Lovecraftian style?




The former. Nobody can copyright or otherwise claim that something as ephemeral as a style of writing can be protected.


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## CountPopeula (Aug 7, 2008)

Alzrius said:


> The former. Nobody can copyright or otherwise claim that something as ephemeral as a style of writing can be protected.




Sure they can. That was the whole basis of White Wolf's lawsuit against Sony for that Underworld movie. It was "thematically similar" and had Vampires fighting Werewolves. I'm surprised they haven't tried to sue Stephenie Meyer yet.

I mean, one of their copyright claims was that in Vampire: The Masquerade Vampires and Werewolves hide their existence from humans, so that's theirs, Oh, and they have a woman who's an excellent assassin and warrior... man, they should sue the Weinstiens for Kill Bill, too.

They stopped making press releases in 2003, though, so... I would assume they didn't win, because they would have bragged about it, and there wouldn't have been a sequel to Underworld... and certainly not a third film in the works, which there is.

Claiming something and bringing suit about it is one thing, winning is another. It depends on how litigious someone is, and what they think they're entitled to based on their existing IP.


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