When is it plagarism

[Erick Wujcik]

...working on releasing my own RPG system and Campaign World and I was wondering what WOTC had copyright on...

While the information posted above is excellent, I'd just like to add another perspective...

You asked what terms were public domain (elf, dwarf, etc.), and which were not (as others have pointed out, mindflayer and gnoll are off-limits). The best advice, of course, was that you should consult with an attorney (greyorm is quite right!).

However, I'd like to point out why you, and other RPG designers, should sometimes avoid those names that are in the public domain.

See, you are embarking on the creation of an IP; an 'Intellectual Property.' Your creation, and here I'm pointing at the role-playing world that you are hatching, is a potentially valuable IP.

Will it eventually make you millions? Will movie directors, electronic game producers, toy manufacturers and fast food joints come rushing at you with lucrative contracts?

It's unlikely.

On the other hand, such things do happen.

We have a tendency, in our little 'paper' RPG industry to think of ourselves as 'small potatoes,' especially compared to the multi-billion dollar electronic game market. But the one thing we've got in our field is the freedom to create IP...

...and, believe me, at the latest e3 in Los Angeles, where all the new electronic games were being showcased, one didn't see a whole lot of creative freedom; mostly justgames based on movie, comic or sequel IP.

The question is, what makes an IP valuable? And what degrades the value of an IP?

The general rule is, the more generic the components, the more worthless the IP. Conversely, the more unique and 'brand-able' the components, the more valuable the IP.

Now, in this case, when I say 'components,' I'm talking about the literary components, things like the names of places, people, creations, powers, abilities, etc. In other words, the 'components' that would go into the recreation of your literary property into another media (into an animated television show, for example).

So, in your particular case, calling the delicate, long-lived, pointy-eared people, 'elves,' degrades your IP. Calling them, for example, "I'tox" or "Greenbloods" or "Oak People" offers your future licensors the ability to apply trademark, and to sell, sell, sell all kinds of tie-in products (which explains why the Tolkien Estate was pretty fussy about who was going to use the term 'Hobbit').

I'd go on, especially on the topic of how much 'new' and how much 'used' (public domain) should go into a new game, but I think I've got the making of my next article for the Forge right here...

Erick

[greyorm]

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.

Check higher in the thread, as Sean stated, gnolls were a creation of Lord Dunsany. He wote about them in "How Nuth Would Have Practiced His Art Upon the Gnoles," wherein they were not described, except as "very wealthy and very protective of that wealth."

The first mention of gnolls in D&D is from Gygax, D&D, Vol 2. Monsters & Treasure: "A cross between Gnomes and Trolls with +2 morale. Otherwise they are similar to Hobgoblins, although the Gnoll king and his bodyguard of from 1 - 4 will fight as Trolls but lack regenerative power."

They've even been referenced in the Terry Practchet novel, Equal Rights. And I see them included and referenced in various video games, such as Warcraft and Everquest, and in various non-WotC-owned or licensed print products for RPGs.

Given the above, gnolls appear to be quite "safe" to use, as WotC doesn't seem to be actively defending it as their IP (if they've claimed it as theirs at all). Given the widespread useage, if they ever had trademarked it, given the number of references and usage I have seen, it would have effectively entered the public domain and is no longer defensible as IP (much as what happened with 'Kleenex' and 'Xerox').

[Paul Czege]

Erick,

I'd go on, especially on the topic of how much 'new' and how much 'used' (public domain) should go into a new game, but I think I've got the making of my next article for the Forge right here...

Great topic! Have you seen Greg Costikyan's blog entry, http://www.costik.com/weblog/2003_09_01_blogchive.html#106365113630129672">Husky & Starch: The Wonderful World of Sucky Licenses?

Paul

[Mike Holmes]

Didn't Terry Brooks use Gnolls, too, as his genric bad guys? I seem to recall the phrase "wizened little men" used over and over to describe them. Or do I misremember?

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.

Oh, I don't think you have to go that far. Mind Flayers are Spawn of Cthulhu. Think about it for a second. Alien, looking like Cthulhu except for the lack of wings. Highly intelligent, but posessed of infathomable motives. And capable of causing breaks in people's sanity.

How are Mind Flayers not carefully copied Spawn of Cthulhu? Oh, sure, no wings, and not as large, but...

As such, if you want to put something similar into a game, I think it'd be a relatively easy thing to file the numbers off. In fact, I believe that you could even call them Spawn of Cthulhu if you wanted to.

Not a lawyer, yadda, yadda.

That said, you have to consider what Erick says. I mean he was involved with this little thing called Teenage Mutant Ninja Turtles (and other strangeness), so I think he makes a very good point. Why not be more original. That's not to say that you should lose all reference points - people make that mistake all the time, too. But, c'mon, what do Mind Flayers have that you couldn't improve upon?

Mike

[greyorm]

Didn't Terry Brooks use Gnolls, too...Or do I misremember?

You are thinking of "gnomes." Small, weathered, yellow, superstitous, pagan savages. And they weren't all bad guys: the healers of Storlock are gnomes; though in the main, they tend to be on the wrong side of things.

Brooks work is interesting because of what he does with very traditional concepts. While remaining true to their archetype, he changes their details, and not just surface detail, enough to create his own rather unique conceptions thereof.

[Bunsen]

Most of what I am using is my own cration or at least different enough to not be classed as the same. I just needed some things to populate the holes in the world.

For example, instead of elves, I have created a race called the "Vy'ir" who take the place of the magic race but have a completely different origin, purpose in the world and different abilities.

Also, instead of having Dwarves, I have the "Dru'marr" who look similar, but have a very distinct feature that seperates them, and they are taking on a more Druidic society, as they try and protect the now injured World Wyrm.

So really there shouldn't be much trouble there but I wasnt sure about how much could be similar to WOTC materials, so I checked the SRD. From my understanding of the OGL you can use anything in the SRD and still get publihed, right?

And my mum works with some lawyers so I could get them to run past it and give me teh jist of it cause it confuses the fug out of me.

[Eero Tuovinen]

Most of what I am using is my own cration or at least different enough to not be classed as the same. I just needed some things to populate the holes in the world.

Not any of my business, but I do hope that you have some other function for these guys than being placeholders.

So really there shouldn't be much trouble there but I wasnt sure about how much could be similar to WOTC materials, so I checked the SRD. From my understanding of the OGL you can use anything in the SRD and still get publihed, right?

If you use the SRD you have to also have the OGL licence somewhere in your book. The licence text is available in the WotC site. You will need to add any OGL sources you use in the book to the last chapter (the place where they say that the licence text is copyrighted to WotC) in the form they give in the source material. Add also your own work, whatever it's name and copyright status.

You have to also somehow designate the parts of the book that are OGL and differentiate them from the other content. All content from OGL sources has to be so marked, but you can also designate any material you own yourself. Nowadays the favored way is to have a list of such OGL chapters and pages on the title page or just before the licence. Another option is to put all OGL or non-OGL material into boxes and tell somewhere that this and this means that the material is OGL. Take an OGL book and look there how they do it.

[Bunsen]

I didnt mean place holders, I meant using some aspects of them, such as appearance and some abilities but giving them a good overhaul. But mostly I'm going to create new creatures and stuff its just that some of the stuff in the SRD would fit really well in my world and system. But mostly it's going to be mainly original work.

[efindel]

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.

I know it's considered bad form to reply to older messages here; forgive me, I was out of town for a week.

There is no official "sixth edition" of T&T -- the "sixth edition" is a fan-created work, and T&T is officially currently still on its fifth edition.  But in any case, I pulled my copy of fifth edition down from the shelf... and it does indeed use the term "hobbit".  

I'll note that I have the British edition, though; I don't know if the US edition is identical or not.

[Jack Spencer Jr]

I know it's considered bad form to reply to older messages here; forgive me, I was out of town for a week.

I think the rule-of-thumb is if it falls off the front page of the forum, barring the thread being closed. This thread is still fairly active, so you're alright.

I'll note that I have the British edition, though; I don't know if the US edition is identical or not.

I used to have the British Corgi version. FBI is selling it now, I think. They ran out of their copies and they got their mits on the Corgi backstock. There are some minor differences in the text, completely different artwork, different layout for obvious reasons, but otherwise the same. Some refer to it as the 5th ed revised.

[Tav_Behemoth]

You have to also somehow designate the parts of the book that are OGL and differentiate them from the other content. All content from OGL sources has to be so marked, but you can also designate any material you own yourself. Nowadays the favored way is to have a list of such OGL chapters and pages on the title page or just before the licence. Another option is to put all OGL or non-OGL material into boxes and tell somewhere that this and this means that the material is OGL. Take an OGL book and look there how they do it.

Note that, unlike any other form of writing, you can't mention the titles of the works you used (even in a bibilographic citation) except:

1) within Section 15 of the Open Gaming License you have to print in your book

or

2) if you specifically get permission.

In my opinion, this is one of the big and unresolved problems with the Open Gaming system--every other open system for transmitting & refining intellectual effort, like scientific or academic publication, depends on accurate citation of prior sources.

As a rule, creators *want* their OGL material to be cited; since they can't stop you from using it, they'd just as soon receive credit for their work!  Some publishers may believe that having their books referenced by an "inferior" source might damage the value of their name, however, which (I think) is why the OGL is designed the way it is.

There are some recent threads at EN World that touch on this; don't want to cross-post (esp. about technical issues with a license most of y'all don't use), but drop me a line if you're putting together a Section 15 or just have an intellectual interest in the role of citation in open systems.

[Ben Lehman]

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.

I know it's considered bad form to reply to older messages here; forgive me, I was out of town for a week.

There is no official "sixth edition" of T&T -- the "sixth edition" is a fan-created work, and T&T is officially currently still on its fifth edition.  But in any case, I pulled my copy of fifth edition down from the shelf... and it does indeed use the term "hobbit".  

I'll note that I have the British edition, though; I don't know if the US edition is identical or not.

BL>  I wonder if the inclusion of "Hobbit" as an English word in the OED has any effect on its legal status as a trademark.  I wonder, if it doesn't, if it is the first official word in the English language that is illegal to print for reasons outside of profanity.

yrs--
--Ben

[Erick Wujcik]

...I wonder if the inclusion of "Hobbit" as an English word in the OED has any effect on its legal status as a trademark.  I wonder, if it doesn't, if it is the first official word in the English language that is illegal to print for reasons outside of profanity.

Since we're wandering into IP (Intellectual Property) confusion, a few words of clarification.

First off, there are three levels of IP protection (please excuse the elementary subject matter).

0. Ideas themselves cannot be protected. Only the application of ideas, or the expression of ideas. For example, you can't protect, no matter how novel the concept, or how valuable the IP, a mathmatical formula (there is a continuing debate about whether computer algorithms should be protected as IP, and you can count me as against it).

1. The application of ideas is protected by patent. The game "Monopoly" was patented, as were CCGs by the Magic/WOTC folks. It's not a huge issue in the RPG field, since no one bothered to patent any of the original RPGs (although they could have -- and my lawyer was quite certain that I could have patented my diceless role-playing system, but I would rather have more diceless RPGs than risk limiting their creation).

2. Trademark protects particular words or phrases, usually those that are descriptive of products or services. As a general rule, you only trademark those terms that are labels (I'll mention "Rifts" and "RECON" as two that I've been involved with). For a very specific example, 'Superhero' is trademarked jointly by DC and Marvel Comics, because it refers to a type of comic that they have labelled 'Superhero Comics,' and to use that term even casually in a RPG is an invitation to a lawsuit.

'Hobbit' has not, to the best of my knowledge, ever been the subject of a trademark. For one thing, each and every new issue of the "Lord of the Rings" would be ammended so that a little 'TM' (or a little circle with an 'R' in it) could be attached to each use of 'Hobbit' throughout the text, and I've yet to see that...

3. Which brings us to copyright, which protects creative works and, to some degree, their component parts. Absolutely, without question, 'Hobbit' and the related creation (small humanoids with furry feet and large appetites) are covered by Tolkien's copyright, which is the property of his estate. Hobbits, in other words, are the expression of Tolkien's creativity, and an original part of his copywritten work (his novels).

The word 'Hobbit' itself is not protected. Should you wish to name a character 'Hobbit' in your upcoming novel, screenplay or comicbook, you're pretty much at liberty to do so (unlike, say, 'superhero' or 'Coca Cola' or 'Paxil')... Pretty much...

However, you are not free to plunder Tolkien's copyright. Which means you can't infringe on the expression of his idea, on his 'creation.' So, in the case of RPGs, you can't include a 'Hobbit' class, especially if you describe them as Tolkien does, or paraphrase Tolkien's description (although, clearly, TSR felt free to create a 'Hafling' race).

Remember when I said you could name a character 'Hobbit?' Well, you can, so long are you aren't trying to profit from Tolkien's creation. In other words, if you name your character 'Hobbit' because she's small and has largish feet, you're borrowing from Tolkien to give your audience a shorthand clue as to the chracter...  which is stealing from Tolkien, and a violation of copyright. Which means you can't use 'Hobbit' in any way that reminds us, in either a positive or negative way, of Tolkien's creation.

So, to answer the original question. Yes, it's okay for a dictionary to print up a definition of 'Hobbit' (although, if you made a 'Middle Earth Dictionary' that consisted of a lot of Tolkien's creations, you'd also be violating copyright)...

Erick

[Ron Edwards]

Hello,

Although all the discussion has been interesting so far, I think the hobbit excursion has been a red herring. Erick, thanks for clarifying the rules that people really ought to know before posting about what they "heard" the Tolkien estate did or didn't do. (and yeah, article article)

I'd like to focus back on Bunsen's basic question. Bunsen, have you had your questions answered? Are there any other aspects of the issue that you'd like to bring up?

Best,
Ron

[Bunsen]

From my understanding of what you guys said, i can :

A) Use anything in the SRD as long as I have a copy of the OGL in my book, point out that it is from the SRD, either by boxing it in or otherwise.

B)Copyright anything I create myself.

If i have any part of this wrong please point it out.