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I want to use the kinds of monsters that appear in tabletop RPGs for commercial use in writing a fantasy game with different races, how can I tell public-domain content?

Some types like "Vampire" are obviously public-domain. But what about the more obscure ones like "Duergar", "Drow", "Boggards", etc. - are these also public-domain?

How can you tell if a kind of creature is not public-domain?

I'm asking for advice on how to navigate the system. Please explain the steps and how you figured out how something is public domain or not.

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Even public domain things can have elements subject to copyright and/or trademark

For example, the word “drow” is public domain: it refers to mythological northern Scottish elves. If you use it in that sense, you are not infringing WotC IP.

However, if you use the elements of dark skinned, matriarchal, tall elves, you are. Those elements are WotC IP.

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  • \$\begingroup\$ Comments are not for extended discussion; this conversation has been moved to chat. \$\endgroup\$ – Someone_Evil Dec 20 '20 at 19:36
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Find them in other public domain works.

Gary Gygax faced the same problem when TSR was threatened with a lawsuit over creatures appearing in the works of Tolkien. His solution was to prove that these creatures appeared in much older, out-of-copyright works, including ancient mythology and medieval bestiaries.

Gygax was successful at convincing the company to drop the lawsuit, even though many of the creatures in D&D more closely resemble their Tolkien counterparts than the original mythic inspiration.

However, copyright law is potentially much more complex than that. For example, the estate of Arthur Conan Doyle argued, in a recent case against Netflix, that while the character of Sherlock Holmes is out of copyright, certain personality traits only appearing in later, in-copyright Sherlock Holmes works (such as displaying empathy) are still under copyright.

In theory, Wizards of the Coast could sue over similarities to their specific versions of individual monsters. For example, they can't own copyright on "troll", but could arguably claim copyright on a troll who regenerates injuries unless burned with fire.

In practice, Wizards of the Coast is generally lenient with the use of monsters inspired by earlier works, even where D&D's characterization of those is original.

A good example of this is the lich. Earlier fantasy works used "lich" (an archaic word for a body) to refer to an undead body found in a tomb, but D&D's specific conception of the lich as a magic user who keeps their soul in a phylactery is largely original. This conception of the lich has in turn been used by other works such as World of Warcraft, and as far as I'm aware, Wizards has never tried to sue over it.

Wizards is stricter regarding certain creatures which it considers Product Identity; i.e. original creations owned by the company. These include the beholder, gauth, carrion crawler, displacer beast, githyanki, githzerai, kuo-toa, mind flayer, slaad, umber hulk, and yuan-ti, all of which appeared in the D&D v.3.5 Monster Manual but were omitted from the SRD on copyright grounds. Even then, some video games have gotten away with using these creatures; the mind flayer in particular appeared in Demon's Souls and the Final Fantasy series. Still, I wouldn't recommend using these creatures in a game, as WotC have explicitly declared that they own copyright on them, which suggests they reserve the right to enforce that copyright.

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  • \$\begingroup\$ It's also plausible that they (WotC/Hasbro or another fantasy group) may be willing to license some of their IP to you. Dealing with corporations is somewhat onerous, but consider that belonging to their product umbrella may provide good legal advice and help protect you from other litigation. \$\endgroup\$ – ti7 Dec 15 '20 at 5:46
  • \$\begingroup\$ @ti7: One obvious way to do so is to publish via DMsGuild. DMsGuild has stricter restrictions in many regards (e.g. if you publish something there, you can never publish that thing anywhere else), but in exchange, creators are much more free to use WotC's content (including non-SRD content) in their products. Per their Content and Format FAQ: \$\endgroup\$ – V2Blast Dec 15 '20 at 9:22
  • \$\begingroup\$ "When you create your own title for the Dungeon Masters Guild, you get access to a hoard of resources. Your work can use any of the 5th Edition D&D rules published by Wizards of the Coast, plus decades of published material for the Forgotten Realms, Ravenloft, Eberron, Ravnica, and Theros settings. [...] As other authors create content for the Dungeon Masters Guild and expand the Forgotten Realms through their titles, you then have access to use that material in turn." Anyway, that's just one example. If you're influential enough, you might be able to come to a separate agreement with them. \$\endgroup\$ – V2Blast Dec 15 '20 at 9:23
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These monsters are considered "Product Identity" and are therefore not available for use outside of D&D games: Beholder, Carrion Crawler, Displacer Beast, Umber Hulk, Githyanki, Githzerai, Slaad, Mind Flayer, Kuo-Toa, Yuan-ti.

http://www.d20srd.org/faq.htm

Other creatures from the D&D Monster Manual should be OK to use, as long as you don't go too far in copying the exact details.

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    \$\begingroup\$ The question was much broader than "Is a particular monster property of WotC?" \$\endgroup\$ – chepner Dec 14 '20 at 21:32
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There is no "quick 'n easy" way to do this, but I'd suggest you do so some background checking beforehand.

For instance with Drow:

You can find information about the "Trow" on wikipedia which is sourced. This is an obvious reference. It is good to take into account that there are common mutations in indo-european languages, e.g. the "t" and "d" sounds; likewise b/p, c/g, k/g, etc. So, in this case the origin of the word "Drow" preceeds Dungeons & Dragons and is linket to the myths from the Orkney and Shetland Isles.

Take the Senmurv, which appeared in the AD&D 2e Monstrous Compendium, whic is a derivative from the Persian mythological bird, the "Simurgh". With this you can see that many creatures find their origins in mythological traditions from around the world.

Some items are derived from other literary sources too, e.g. the Vorpal sword or blade which appears in Lewis Carroll's 1871 poem the Jabberwocky - and a very coveted item in the world of D&D.

You can sometimes use a change in spelling to disassociate your writing from something that has inspired you - but you need to make sure your version is not a "copy/paste" version of the creature but with a different spelling.

Or, you can reference the origin to acknowledge its intelectual property.

It may seem like a mammoth task at first, but in reality I don't expect you'll be looking up the etymology/origins of the entire monster manuals; so, hopefully with time, you will be able to build up a knowledge base and feel more comfortable knowing what you can/can't use, what you reference and what you possibly adapt or take inspiration from.

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    \$\begingroup\$ ...Your "wiki" quote (which includes a clear typo, and doesn't actually link to its source) seems to actually come from an unsigned comment on the talk page of the Wikipedia article on Drow; given that that's not really a reliable source, I'm not sure what the benefit of directly quoting it is. If you can confirm the information given there, it'd be better just to paraphrase/explain that information yourself (and cite the sources) instead of directly quoting an unsigned comment from the talk page. \$\endgroup\$ – V2Blast Dec 14 '20 at 7:57
  • \$\begingroup\$ I am not a lawyer, but as I understand it, references do not matter much from a copyright perspective. They are relevant in the context of plagiarism or academic misconduct, and in some cases they might be enough to either get away with fair use (if makes it clearer that it's criticism or satire), but generally references are orthogonal to copyright. \$\endgroup\$ – James_pic Dec 14 '20 at 15:09
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    \$\begingroup\$ @James_pic Indeed, although referencing is an ethical move in terms of giving credit where credit is due, it can make one's legal position worse. If I publish material with a telepathic tentacle-headed monster, and WotC claim I've infringed their material on mind flayers, I can point out that telepathic tentacle-heads were around long before D&D, and they would need to demonstrate that I've ripped off mind flayers in particular. If I include a reference that says "inspired by D&D's mind flayers", I've made it that much easier for them. \$\endgroup\$ – Geoffrey Brent Dec 17 '20 at 7:14
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A potential but unsafe rule of thumb

Look into how other companies have avoided infringement, such as Reaper miniatures. This could help you get a start point for some of the monsters you are considering to include.

E.g. If you search for drow on Reaper Miniatures, you will get dark-elf results, which could indicate that they actively chose to avoid the use of drow as a term. Other copyright protected monsters like Beholder and Mindflayer doesn't bring up results, even though they do sell Eye-beasts and illithids.

You have to be careful with this approach though, e.g. some companies might have a license to use the term, so do note:

You're far from covered with this method!

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