When is it plagarism

[Bunsen]

Okay, working on releasing my own RPG system and Campaign World and I was wondering what WOTC had copyright on. My friend is saying they have the rights on using Rogue, Barabarian, Paladin and such as Class names. They wouldnt have right to Dwarves, Elves and Orcs but what about Kobolds, Gnolls and most imprtantly Mindflayers. If anyone's got any info about what is public domain, could you post it here. Thanks

[Eero Tuovinen]

Okay, working on releasing my own RPG system and Campaign World and I was wondering what WOTC had copyright on. My friend is saying they have the rights on using Rogue, Barabarian, Paladin and such as Class names. They wouldnt have right to Dwarves, Elves and Orcs but what about Kobolds, Gnolls and most imprtantly Mindflayers. If anyone's got any info about what is public domain, could you post it here. Thanks

You cannot copyright common words already established in common parlance. Thus rogue (thief, standard english word), barbarian (dating to about 2000 BC in greek), paladin (medieval french), dwarf (short person, standard english), elf (sprite, standard english) orc (from latin orcus) and kobold (medieval german) are all not copyrightable. AFAIK gnolls and mindflayers are inventions of the D&D crew from various periods, so those are their property. You could conseivably use mindflayer as a name in an entirely different context, though, or use either of the above almost as is by giving them new names. As a rule of thumb, you can only copyright representations of ideas, while the ideas themselves are always common property. Otherwise we wouldn't have very much room for invention, would we?

I suggest familiarizing yourself with OGL/d20 scene, as much of the things you might want to use are available under OGL licence anyway.

[Sean]

Gnolls were invented by Lord Dunsany, so they're open to all. Mind Flayers are arguably Wizards IP (they will argue it). If you want to find out the short list of creatures that Wizards may own, find a list of the monsters that were taken out of the original SRD - these are the ones they think they own.

The Tolkien estate will sue you if you use "Hobbit" or "Balrog". Wizards will sue you if you use one of the monsters on their short list. It's not clear whether they will win, but if you don't want to spend a lot of money and/or time and/or hassle finding out don't use these critters. Ditto the ones Wizards is claiming.

(There are some interesting grey areas here that haven't been challenged, like the Displacer Beast, which visually is identical to a creature in an old Arthur C. Clarke (IIRC) novel, but has different powers. Hasbro apparently thinks they can try to own this. Another interesting area would be if you had a brain-eating non-bipedal, non-intelligent tentacled horror and allowed it to be called a 'mind flayer' on the ground that it was descriptive of what the creature did, maybe giving it a primary name that was different too.)

[timfire]

I checked the SRD, Kobolds and Gnolls are in, but the Mindflayer ISN'T... so I assume that means you can use the former but not the latter.

I know the legal value of the OGL is questionable, but if you're worried about what you can and can't use, download the SRD from WOTC. You can use anything in the SRD as long as you include a copy of the OGL and make it clear what's original and what's taken form the SRD.

[edited for spelling & grammar]

[madelf]

The Tolkien estate will sue you if you use "Hobbit"

Has this ever actually occured?

It seems like there were a couple of old games that used "hobbit". I don't recall having heard anything about lawsuits over it. Of course they might be touchier now than they were then, too.

Also note that just because someone doesn't have a leg to stand on, doesn't mean they won't sue. (A certain publisher who believes they own the rights to all the works of H.P. Lovecraft, many of which have actually passed into public domain, comes to mind)
I even had some clown once accuse me of copyright infringement with work that was my original creation, though nothing came of it. I called their bluff & they backed down.

The only way to be safe is to go all original (and keep your development notes & rough drafts), or be certain to document the antiquity of your source... so that you know beyond a shadow of a doubt that your ass is covered if you ever get taken to court.

[Jack Spencer Jr]

The Tolkien estate will sue you if you use "Hobbit"

Has this ever actually occured?

Legends says that TSR was threatened with legal action over the use of "Hobbit" and "Ent" in D&D, hence why they use "halfling" and "Treant"

I am uncertain of the accuracy or details of this. Different people have told me different things.

[daMoose_Neo]

I got that once on CafePress- they wrote me to tell me they suspended my shop because the artwork on it appeared to be copyrighted...which was absurd :P Wrote them and they were nice enough *cough* to unlock it.

As for 'Hobbit', I don't believe I've seen it anywhere else than a lisenced or fan/virtually unknown project. Halfing is all over the place, Lucas used the name "Nelwyn" for his "hobbits" in Willow, but never else where have I seen "Hobbit", which would be copyrightable as a name though DND's "Halflings" are virtually so.
Faries, Elves, Dwarves, Gnomes, Unicorns, etc are all for the most part mythical and fairly old so no one can truly hold a copyright on that.

[madelf]

"Hobbit" supposedly was used in Tunnels and Trolls without anyone raising a stink.

Again, I'm not saying that would be the case now. I personally wouldn't touch it with a ten foot pole. I've even skipped "Halfling" and made all my short and non-burly folks Gnomes.

And just to be nitpicky... when it comes to names, we really should be talking about trademarks. Names aren't covered by copyright.




On the copyright infringement claim, I didn't get hit by cafepress. I was working on an on-line game, doing the illustrations for it, and I (along with the game creator) got a letter accusing us of copyright infringement and threatening legal action. Neither of us had even heard of the company making the accusation. Some searching uncovered another on-line game that (though very different) would have seen what we were doing as competition. They were trying to scare us off. I found that rather annoying.

[greyorm]

One more reason you never take legal advice from non-lawyers.
Names are not copyrightable. They are trademarkable. WotC, the Tolkien Estate, and etc. would own the trademark for the names.

Maybe not much difference to you, but there is a big difference legally. The tests for infringement are very different between copyright and trademark. For trademark infringement, even anything "confusingly similar" to a trademarked name, logo, or slogan is actionable. As well, the fines and penalties faced by the defendant differ.

"A trademark includes any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name."

However, I'm not a lawyer. This is not legal advice. Talk to a lawyer who specializes in intellectual property law.

[Paganini]

Just a note, T&T did not get away with using "hobbit." They changed it to "halfling" at the request of the TE.

[Space Cowboy]

"Hobbit" supposedly was used in Tunnels and Trolls without anyone raising a stink.

Again, I'm not saying that would be the case now. I personally wouldn't touch it with a ten foot pole. I've even skipped "Halfling" and made all my short and non-burly folks Gnomes.

I'd agree with Madelf's point of view.  In my humble opinion, to be sued (assuming it gets that far) is to lose, given the costs of legal representation.

For my own creative work, if someone notes and if I agree that a big company has even a remotely colorable claim, I change the term.

Cheers

[madelf]

Just a note, T&T did not get away with using "hobbit." They changed it to "halfling" at the request of the TE.

It is certainly possible that I have been misinformed, but it was my understanding that hobbit was used throughout the life of the product, and multiple editions of the game. In fact I've seen references to the sixth edition which mention hobbits as being one of the available races.

[Bunsen]

Okay, I know I'm gonna sound like a noob, but whats the SRD, i know about the OGL and where to get it but I dont know where to get the SRD. Help anyone?

[Loki]

http://www.wizards.com/default.asp?x=d20/article/20040121a

best of luck.

[John Kirk]

If you're looking for terms that are definately in the public domain, you might want to look at my game Legendary Quest.

The game is based completely off of authentic European and Mediterranean folklore and mythology.  As such, there isn't a single monster in the game whose name anybody owns.  There are 3 monster books, and many of the monsters have alternate names and spellings listed.  So, that will definately get you started.  Now, if you completely duplicate my entire list of monsters, then I might have something to say about it :-)  But, I probably wouldn't have a legal leg on which to stand.

The same goes for the classes in the main rule book, "The Grimoire of Game Rules".  I didn't make up any of those terms either.  I could probably claim to have ownership of many of the spell names in the magic systems, since they mostly describe otherwise unnamed powers of mythical beasts and I had to call them something.

As far as "Hobbit" goes, the closest terms I have found in my research of folklore is "Hobithryst", meaning "Good Giant" in Old English.  This is a bit of an odd term, considering the small size of Hobs in general, but folklore rarely makes sense.  I'm almost certain Tolkein derived the term "Hobbit" from this.  (He was, after all, an English professor and a linguistic genius.)  If you want to have Hobbit-type characters, just use the authentic term of "Hob" like I do, or "Hobmen".  "Lob", or "Lobby" are other equivalent terms (used in the last Harry Potter movie, incidentally).  Or, you might just want to use the term "Hobgoblin", which means "Good Goblin" in Old English.  Obviously, D&D got that one wrong :-)

"Kobold" is a term for a German mining goblin.  Oddly enough, Kobolds are also known for their culinary skills.  In actual fact, the name of the element "Cobalt" is derived from it.  So, Kobold is perfectly safe to use.

As far as Gnoll goes, I've never seen it in any literature other than D&D.  And, believe me, I've looked.  I think that it was made up as a contraction of "Gnomish-Troll", indicating a Gnoll is some kind of Gnome/Troll hybrid, but I can't say for sure.  I think you'd better keep away from using that term.

Mind Flayers are, without a doubt, a D&D invention.  Tread very lightly here.  If you want an authentic source for a Mind Flayer type creature, you might want to look at the ancient mystery cult of Mithraism.  One of its cryptic symbols is that of a lion-headed man with serpents coming out of its hair entwined around its body.  David Ulansey in "The Origins of the Mithraic Mysteries" argues fairly effectively that this creature corresponds to the Grecian Gorgon (Medusa).  In actual folklore, the mystery cults (including Mithraism, the Hashashim, the Templars, the cult of Isis, and others) are the origins of the modern day myths concerning psychic powers, so using this "Gorgon" man as a Mind Flayer alternative makes a lot of sense from a mythic perspective.

BTW, Euro, I'm quite impressed that you knew that "orc" derives from "orcus".  You are quite correct.  Very few people have that bit of esoteric knowledge.