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To what extent are fantasy elements public domain?


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#1 olgo   Members   -  Reputation: 118

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Posted 13 February 2013 - 03:53 PM

Hi guys,

 

  I've searched all over for information on this topic, couldn't find anything.   I decided to find a good community to post in, so I hope this is it.

 

  I'm wondering, what elements of the high-fantasy genre are copyright protected / public domain?  I realize elves and dwarves and goblins and orcs and general races like that must be public domain as they are used in an infinite amount of works.  

 

  What about more specific things such as Observers, Mind Flayers, and Bugbears?  Those are the ones I'm not too sure about.  

 

  Then even more specific than that, I assume are intellectual property, such as Drizzt Do'Urden or Volothamp Geddarm or Faerun or Amn.

 

I've been contemplating this because I am a huge fan of the high fantasy setting and I'm creating an RPG game.  I want my work to be inspired by Tolkein and Forgotten Realms but I don't want to cross any legal lines.  I want to have orcs and elves and the like in my game but I'm wondering "Can I have Observers? or do I have to change the name to Oogly Eyeball Floater?"

 

Thanks!



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#2 TheChubu   Crossbones+   -  Reputation: 3698

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Posted 13 February 2013 - 05:29 PM

Wizards of the Coast is pretty privy of their IPs...


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#3 sunandshadow   Moderators   -  Reputation: 4577

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Posted 13 February 2013 - 07:35 PM

If it has a proper name (meaning a name which is not a regular word capitalized) you can assume it's someone's IP.  If it is named with a regular word or mythological term it would be quite difficult for them to claim exclusive ownership of.  For example the word bugbear dates to the 1500s, referring to a bear-like goblin.  Floating eyeballs are from Japanese mythology AFAIK.  Does it really matter if you have to change the name from Observers to Gazers or Watchers or something like that?


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#4 samoth   Crossbones+   -  Reputation: 4509

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Posted 14 February 2013 - 06:10 AM

You cannot safely assume anything. For example "hobbit" and "beholder" are perfectly normal English words. Beauty is in the eye of the beholder is a well-known saying. The word hobbit can be tracked back to some 16th/17th century writings.

Nevertheless, Tolkien's heirs will sue you if you use "hobbit" and TSR will sue you if you use "beholder" or something that looks like a beholder. And, US law permits them to do so, too.

It is a relatively safe bet if you stay away from words commonly associated with some work (say, hobbit) and from known "troublemaker" terms. But either way, you can never be 100% sure. And no, common sense doesn't apply.

#5 olgo   Members   -  Reputation: 118

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Posted 14 February 2013 - 09:04 AM

Thanks for the reply guys.  The part that's so confusing is that all of this lore is so entwined with ancient mythology and corporately owned IP its hard to tell what's what.  Then I see games that are property of neither of the big names and they use a beholder looking creature and call it a Watcher, will they sue me if I use Watcher? Will they sue me if i use the likeness of a beholder and call it a Pupil-Monster?  Was just hoping there was some kind of guide or resource for looking this stuff up.

 

My backup plan is that my game will sell so few copies that it will fly completely under everyone's radar.

 

Not that I'm trying to copy anything ... I just like to pull inspiration from and want to be set in this established high fantasy world.



#6 samoth   Crossbones+   -  Reputation: 4509

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Posted 14 February 2013 - 09:47 AM

Then I see games that are property of neither of the big names and they use a beholder looking creature and call it a Watcher, will they sue me if I use Watcher? Will they sue me if i use the likeness of a beholder and call it a Pupil-Monster?

Yes, no, maybe, who knows. The fact that someone uses something that (maybe only in your opinion) looks like a beholder and isn't sued does not mean a lot. First, you don't know whether they're paying a royality fee or whether they're maybe just at court (though in that case, WotC would very likely go for a cease-and-desist first, so you wouldn't be able to see the game online). Second, it might just be similar, but not similar enough. Calling your lawyer for every website you see and going into a thousand frivolous lawsuits every month costs time and money, so you don't do that below "some threshold".

What that threshold is, nobody knows. It's a mix of being just as much to get pissed enough to pick up the phone, the likelihood of winning (the more similar, the higher), and the estimated amount of money that the other guy (that is, you) has.

There's the French saying Where there is nothing, the King loses his rights, or the German counterpart You can't reach into a naked man's pocket (I'm not sure if a similar idiom exists in English). Which means no more and no less than: Lawsuits cost time and money. If I'm going to sue you, I do that because I want your money (and of course for God and Justice). Therefore, the more you own, the more prominent this is, and the easier it is for me to get a hold on you, the more I'm likely to pick up the phone.
If you don't own anything that I can take from you, there must be a lot of injustice happening before I'm willing to pay for the lawyer.

Now, let's say there's some unknown rubbish game that uses my IP. Website with 50 hits per week, domain registered with GoDaddy, author unheard of, little evidence as to where he lives, presumably in some far away eastern country with laws that I don't know about... oh fark's sake. Too much trouble for too little gain.

Then look at this other game. Hmm... US guy, sells on Steam, a couple of thousand downloads per week. Trivially identifiable, reachable, actionable. Easy money.

About beholders in particular, WotC considers them as part of their "product identity". This makes it likely that the "piss off" threshold is rather low.

So, while I'd consider anything that looks like a big floating eye only marginally dangerous, anything like a big floating eye with a mouth is probably no such a good idea. Anything like a big floating eye with a mouth, a yellow body, and several smaller eyestalks... that means asking for trouble.

#7 olgo   Members   -  Reputation: 118

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Posted 14 February 2013 - 10:22 AM

Thanks Samoth.  That helps put things in to perspective.  Right now I've only spent the time modeling and animating wolves and goblins... thing's I consider to be pretty safe.  I was just using a beholder / observer as an example, not that I feel I MUST have one in my game,  it just seems like a good example of something that would be in that iffy area.



#8 DaveTroyer   Members   -  Reputation: 1052

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Posted 15 February 2013 - 01:15 PM

...

My backup plan is that my game will sell so few copies that it will fly completely under everyone's radar.

...

 

Nope. Don't do that. Bad idea. mellow.png

Doesn't matter if you don't sell any copies or if it's free; if you make it public, they can find you and sue you. 

The only real way to avoid getting dinged by lawsuit happy IP holders is to steer clear of their path.

Say they have a goblin race called Oofs, then yours needs to be called something way different, like Kikapunts or something. 

 

And the same goes for the look of your beasties. Take the Oofs and Kikapunts example from above. They shouldn't look identical, but they can share some features. You just need to make things different enough, and that's not too tough.

 

Its a dog-eat-dog world out there, so it's good to go out there with some caution and defenses first.


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#9 bschmidt1962   Crossbones+   -  Reputation: 1711

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Posted 15 February 2013 - 06:10 PM

The smartest thing to do is take any term you use you think may be questionable, and do a etymology search on it.

For example, 10 seconds on Oxford Dictionary tells me that the word "hobbit" was created by Tolkien.  So stay away from Hobbits :)

 

In general, you can do whatever you want with old, legendary stories, characters or races.  However you have to be careful not to infringe on any other company's expression of idea in how those characters are represented.

 

For example, you can certainly make a game based on the story Snow White.  That is a public domain story (written by The Grimm Brothers), and is old enough to be in the public domain.  However, you can not make any of your art, dialog, etc be reminiscent of the Disney movie of Snow White.  While Disney does not own the characters, they do own their unique creative expression of those characters and idea. 

 

In general, if your work is derived from (or potentially just 'inspired by') someone else's unique creative expression of an idea not in the public domain, it may be a violation.


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#10 olgo   Members   -  Reputation: 118

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Posted 15 February 2013 - 08:04 PM

...

My backup plan is that my game will sell so few copies that it will fly completely under everyone's radar.

...

 

Nope. Don't do that. Bad idea. mellow.png

Haha, that was more or less a joke about how I have no real high hopes for my work.  My main goal is just to publish a finished game :)

 

 

BSchmidt,  thanks for that input.  It really helped me realize how there are so many recreations of the same idea (every game has goblins, trolls, ogres etc) but they all look vastly different with the same general idea.






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