# Wizards copyright release of un-used creatures



## Metalmaster (Jan 17, 2012)

When I saw a falling star 3 nights ago I wished that Wizards of the Coast finally released some troubled creatures from their copyright chains.

Really, put Zorbo, Metalmaster, Julajimus, Deepspawn, Gravorg, Morkoth and all those other long-not-used-and-probably-never-used-again-creatures on the list of copyright-free creatures... 
Why would you give away Destrachan, Remorhaz, Bulette and even Rust Monsters and keep hold of creatures you never ever use again anyway.

All creatures that never are used again or only rarely should end up on a list so other companies and projects can use them freely and work magic with them, i'm talking about Pathfinder, Tome of Horror and other such similiar projects here... give them the possibility to use these creatures as keeping them copyrighted forever is a shame for some creatures.

I understand you copyright Mind Flayer, Carrion Crawler and Displacer Beast, but why copyright Zorbo and Metalmaster which are not seen since 2nd edition...?

Or if you don't let loose of the copyright then use them in your own products instead of 10.000 kinds of drakes, goblins and elementals.


this is to Wizards (if they ever read this) not to other forummembers of course, i'm a huge monster fan that happens to collect monster-books and I think these monsters deserve to make it into future products, that only takes place when they are released from their copyright... D&D made some very awesome monsters during 2nd and 3rd edition, but they didn't use them in the 4th edition and probably never will if I see the latest monster-additions which are only drakes and new elementals... so release them into the world like you did with the 3.5 monster manual creatures, only keeping the extremly D&D-classics and new 4th and 5th generation monsters copyrighted.


----------



## Umbran (Jan 17, 2012)

This was in the Media Lounge, which was certainly not appropriate, so I have moved it to the New Horizons forum.


----------



## Albrecht79 (Jan 17, 2012)

Metalmaster said:


> this is to Wizards (if they ever read this) not to other forummembers of course...




This seems really ridiculous and that you are only trying to flame and cause dissension? They own those creatures. Why not create your own?


----------



## foolish_mortals (Jan 17, 2012)

hey how do you find which critters are copyrighted or not?

foolish_mortals


----------



## Umbran (Jan 17, 2012)

foolish_mortals said:


> hey how do you find which critters are copyrighted or not?




If it was published, that published version was covered by copyright.

There are some descriptions in folklore that are public domain.  But all game-rule representations are going to be covered by copyright, because the games are all too young to be in public domain.


----------



## Metalmaster (Jan 19, 2012)

Dear Albrecht

Create my own creatures? I don't play D&D, I want monster books for pictures, info, readibility and everything EXCEPT for the fact that they are used in a game, and since those are my favorite creatures that never see the light of day again because of copyright I have something against copyright in that matter, in such copyright-cases many old things are forgotten only because of that same copyright.

If you don't use it, set it free into the world so other can use it, if you use it copyright it all you want.


----------



## Glade Riven (Jan 19, 2012)

Umbran's statement is an oversimplification, but is correct...to a point. Copyright, trademark, and patent law are rather complicated. Copyright covers the _expression_ of an idea, not an idea in and of itself. Trademark covers_ brand identity, _designed to prevent confusion. Patents cover a process (technically, D&D's game mechanics could be patented; the process is an expensive and lengthy one, though).

So let's look at the Illithid, an iconic monster of D&D and considered brand identity by WotC. Is the name Illithid or Mindflayer trademarked? Not according the the USPTO (did a quick search). WotC may claim trademark without registering it, but if they ever wanted to take someone to court it would have to be registered with the USPTO before hand.

Moving on to Copyright. Can their description of an Illithid be used by anyone? Nope, because the description is covered by copyright. That won't be entering the public domain for...well, a century or two. Maybe more, with the way copyright keeps getting extended. But you can write whatever description you want, so long as it is different from what has been published by TSR or WotC.

The caviot is that if your description for your illithid is too similar to WotC, they can sue and they may win because your description would be considered a derrivative work. Unless you're trying to make money off of it, though, the likelyhood of being sued is rather insignificant. Since WotC has proof of prior use in commerce, they can even register the trademark retroactively.

So, uh, yeah...pretty much what Umbran said.


----------



## JoesephBear (Jan 19, 2012)

> The caviot is that if your description for your illithid is too similar to WotC, they can sue and they may win because your description would be considered a derrivative work.




Well, to a lesser extent at least. Basically, you cannot use the lore behind illithids. Their physical design is blatantly derived from Cthulhu and his spawn, which is in public domain now. Their lore is an original work though. Heck, if I wanted to make a mindflayer race for my own ogl game, I would just call them lesser spawn of Cthulhu and run with the original Lovecraft lore. That's essentially what they visually are, albeit no wings and man-sized. Besides, all of Lovecraft's best stuff is in public domain now.

"Illithid" and "mindflayer" are original words and are copyrighted, maybe kinda sorta. Final fantasy games and Dark Souls have had blatant "mindflayers" and have called them as such. However, Wotc can't feasibly sue a japanese game company. Unfortunately, most people on enworld are not japanese game companies.


I guess while I'm at it I'll blow off some steam about some other brand identity monsters.

Beholder / Gauth: It's a man-eating floating eyeball with tentacles that shoots lasers. A common trope of pulp sci-fi. It would not be hard to build a legit beholder clone based on those old tropes, and you could even call it a Beholder due to the name being so cliche ("Eye of the Beholder" being a dirt-old saying and all that).

Carrion Crawler: It's a tentacled man-eating slug/caterpillar thing. How original. Change its ecology to something interesting and give it a different name and you have a legit clone.

Displacer Beast: It's bloody Coeurl from Black Destroyer. Give it some e-mag powers, make it an intelligent being, and give it a pronounceable name. Boom. Clone completed.

Kuo-toa: Savage fish-men. Does this even need addressing? Use Deep Ones if you want a Lovecraftian angle.

Slaad: Giant evil toad-men. Really? Original product identity? See kuo-toa.

Yuan-ti: Sorry WoTC, Conan beat you to the whole snake-men angle. Next.

Umberhulk: It's a giant bipedal stag beetle. Rework the gaze into something else (toxic fumes? magic ray?) and you're good.

The only truly original ones seem to be the two Gith races. I haven't really seen anything else like them.


Almost all of D&D's monsters are rooted in non-copyrightable concepts, making it easy to make your own clone for your own product. Sure you can't rip WotC's monster lore wholesale, but that just means you have to come up with your own cool twist. And cool ideas are in abundant supply in this hobby.


----------



## Hassassin (Jan 19, 2012)

A further complication in trying to make sense of these issues is that trademarks only cover making money. You can use trademarks like D&D in a non-commercial context*.

Publications are also quotable. If you wrote a book (or blog post) about the history of roleplaying, you could quote the description of Illithid verbatim, as long as you clearly cited the source.

In any case copyright, trademark and patent laws vary. IANAL.

*I think some jurisdictions might also allow "loss of money" as an argument in trademark violations, but I'm not sure.


----------



## Metalmaster (Jan 20, 2012)

JoesephBear said:


> Well, to a lesser extent at least. Basically, you cannot use the lore behind illithids. Their physical design is blatantly derived from Cthulhu and his spawn, which is in public domain now. Their lore is an original work though. Heck, if I wanted to make a mindflayer race for my own ogl game, I would just call them lesser spawn of Cthulhu and run with the original Lovecraft lore. That's essentially what they visually are, albeit no wings and man-sized. Besides, all of Lovecraft's best stuff is in public domain now.
> 
> "Illithid" and "mindflayer" are original words and are copyrighted, maybe kinda sorta. Final fantasy games and Dark Souls have had blatant "mindflayers" and have called them as such. However, Wotc can't feasibly sue a japanese game company. Unfortunately, most people on enworld are not japanese game companies.
> 
> ...






For Beholder you can just rework Argus, Chuul can replace Carrion Crawler all together, Coeurl and Displacer Beast are all copyrighted but the Kamadan isn't copyrighted, Yuan Ti is only a name, too many snake-humanoids out there same with Slaad and Kuo-Toa... the only truly unique creatures I really miss in Pathfinder are Mind Flayer and Umber Hulk, I really don't care for the Gith as they are boring creatures afteral.

My concern is more with the less known creatures from D&D that are rather unique in what they do, such as Metalmaster, Zorbo, Morkoth and Deepspawn.


----------



## Olgar Shiverstone (Jan 21, 2012)

What's the status of the lowly flumpf?  Did they ever get updated past the original FF?  Are they public domain now?


----------



## JimiBones83 (Dec 25, 2015)

Actually, copyrights only last 70 years, and I believe Mind Flayers first appeared in 1975, meaning theyd be public domain in 2045. Still quite a ways off though


----------



## Echohawk (Dec 26, 2015)

Olgar Shiverstone said:


> What's the status of the lowly flumpf?  Did they ever get updated past the original FF?  Are they public domain now?



Short version: Yes, the flumph has appeared several times since its initial publication. No, not public domain, but usable via the OGL because of _The Tome of Horrors_.

Long version: Monster ENCyclopedia: Flumph


----------



## MerricB (Dec 26, 2015)

JimiBones83 said:


> Actually, copyrights only last 70 years, and I believe Mind Flayers first appeared in 1975, meaning theyd be public domain in 2045. Still quite a ways off though




Err, not quite.

In the US, work-for-hire copyrights go for the shorter of 120 years past creation or 95 years after publication. For individual works, it's 70 years past the death of the author.

UK is 70 years past the death of the author.

Cheers!


----------



## RedSiegfried (Dec 30, 2015)

They gave away Rust Monsters?  That's interesting.  Not sure I know what I'm talking about but I thought that was one of the monsters that GGG invented based off the little plastic figurines he found.  So TSR/WoTC owns the concept of a Rust Monster then?  Do they own the depiction of one since the depiction was based on a toy?  And who owns that?  

These are the kind of questions that keep me awake at night.  Not.  Just kind interesting though.


----------



## Echohawk (Dec 31, 2015)

RedSiegfried said:


> These are the kind of questions that keep me awake at night.  Not.  Just kind interesting though.



WotC didn't give away the rust monster, that's still their intellectual property. They did include it in the d20 System Reference Document, which means that anyone releasing products under the OGL can make use of rust monsters in their work, but only if they do so according to the licence provided by WotC.

You aren't misremembering the history of the rust monster as a toy. I recommend Tony DiTerlizzi's  article on this topic for some great pictures. Whatever intellectual property might be associated with the original plastic model still belongs to the company (or companies) which manufactured or produced those toys. But there is more to the Dungeons & Dragons rust monster than just its appearance; the D&D version has a name and special abilities that make it a "rust monster", rather than simply a prehistoric creature that looks exactly like a rust monster.

Given that (and the amount of time that has passed) it would be difficult to build any kind of legal case that TSR and WotC infringed or are infringing any of the original toy producers rights. It's also perhaps notable that these toys were originally marketed as "prehistoric animals", so presumably they are supposed to resemble actual historical creatures, and nobody can claim exclusive rights to the shapes of real creatures.

If you are looking for something to ponder while you deal with insomnia, a more interesting edge case is probably the displacer beast. That's a creature not included in the d20 SRD, so its use is restricted to WotC (and any licensees not relying only on the OGL). However, the displacer beast is heavily inspired by the coeurl, a creature created by A. E. van Vogt in a 1939 short story titled _Black Destroyer_, so  while WotC can claim to own the "displacer beast", they don't have exclusive rights to publish a creature which looks exactly like a displacer beast/coeurl.

It delights me more than it probably should that Paizo actually went to the trouble of getting permission from Van Vogt's estate so that they could include a coeurl in _The End of Eternity_ (the 22nd Adventure Path release). Wes Schneider wrote a great article on this subject here.

Come to think of it, both the displacer beast and rust monster would be interesting creatures for the Monster ENCyclopedia series (eventually).


----------

