Which D&D monsters are copyrighted?

Question

I am currently constructing a D&D supplement and was wondering which D&D monsters were copyrighted, so that I can avoid lawsuits. The reason I am asking on here instead of going to other sites is because I use my school Chromebook and can't access those sites.

Answer 1

The version and stat blocks of the monsters found in any Wizards of the Coast literature would be copyrights held by Wizards of the Coast. Some of the monsters they include in the game are based on previous works that are in the public domain, but the stat blocks and lore as printed are Copyright WotC. So, Krakens, Unicorns and Baba Yaga are all public domain creatures, but the lore and stats found in the D&D source books are not.

Moreover, the Baba Yaga of Russian folk tales is fine, but the one that mothered Tasha and has the stats bears Wizard's copyright. Note, that some of their content is legal to use under the OGL, if you follow the terms of the OGL.

Likewise some monsters that are from the D&D universe were not only bear copyright but also trade mark. For example, the following is a list of monsters are not only copyrighted, but trademarked (list is not exhaustive, just a sample of some of the more iconic monsters):

• Beholder
• Gauth
• Carrion Crawler
• Displacer Beast
• Githyanki
• Githzerai
• Mind Flayer (Illithid)
• Umber Hulk
• Slaad
• Yuan-Ti

An odd edge case is that you cannot copyright facts, even facts about fictional things, but it is a strange and dangerous line to walk. So, you can use the names of things that exist in public domain, but reproducing stat blocks or D&D specific lore without being under a license would be opening yourself legal liability of potential lawsuit from Hasbro and Wizards of the Coast.

Answer 2

All the monster descriptions are

Copyright applies to any work that is fixed in a tangible medium. Even if you describe a creature from the public domain in such a medium - like text - then your expression of the idea is copyrighted.

Copyright lasts for between 70 and 120 years. As a result, not a single monster description from D&D has lapsed copyright, even those descriptions from 1st edition D&D are still under copyright and you need a license.

The license for some monsters is freely given under OGL, but others, like Displacer Beasts, are corporate identity of WotC and their license is rather expensive to get.

Exception to need for license

"Fair Use"

There's some exceptions to needing a license. The most known one is Fair Use in the US or its UK counterpart fair dealings. most other countries have similar exceptions, especially since the Berne Convention on Copyright provides as a minimum standard a Right to Quote (emphasis mine):

(1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.
- Berne Convention on Copyright, Article 10.

In general the gist of those rules is, that commentary, critique, and parody of the work are ok to take the parts needed, but not more. This is also the niche in which Stack Exchange exists: we take excerpts from the rules to discuss them and their interactions.

Minimum amount required for Copyright

There's also a limit to copyright in that single words can't be copyrighted. One of the shortest stories that could be copyrighted is 6 words, it tells a little story and is attributed to Hemingway. The whole story reads:

For sale: baby shoes, never worn

This might be just about the absolute minimum of expression that gets a copyright, but something of equal length but less expression might be unprotected. There's no hard rule what is the minimum required expression but that it needs to be creative and original. So there is a minimum bar.

Single words or names like "Beholder" "Displacer Beast" or "Murderhoboshoemaker" don't make that bar and can't be copyrighted in the same way. Why? Let me quote the US Copyright office (emphasis mine):

How do I copyright a name, title, slogan, or logo?

Copyright does not protect names, titles, slogans, or short phrases. In some cases, these things may be protected as trademarks. Contact the U.S. Patent & Trademark Office, [email protected] or see Circular 33, for further information. However, copyright protection may be available for logo artwork that contains sufficient authorship. In some circumstances, an artistic logo may also be protected as a trademark.

Facts are not copyrightable

Facts themselves are not subject to copyright, as was decided in Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991). Their formatting and compilation however can be an expression and thus has copyright.

The fact that the Beholder is on Page XX of the Monster Manual can be freely reproduced, it's a fact. But reproducing its stat block is more problematic because there's a copyright in the layout. And you might overstep your license in both cases. And to cut back to the previous paragraph: Its lore and images only can be reproduced for Fair Use - like if you are Wikipedia and discuss what it is.

Work based on a work...

Also note, that there is a thing like derivate work, which means that if you take someone's work and modify it, you create a derivate. My version of the Mona Lisa is derivative of the original. But because Leonardo is dead for a couple of hundred years, there's no copyright infringement. But if I start to draw my versions of a Jack Kirby comics like... Captain America, and without a license, that's getting fishy. Kirby only died in 1994 and Marvel trademarked Cap. So technically drawing him without a license is copyright infringement, but the general stance of Marvel is to not smack on the fingers of fans that do stuff with their IP.

Wizards of the Coast however is known to be quite a litigant company when it comes to their IP, so derivate works that use their texts and artwork beyond the OGL are oftentimes hunted.

But... Public Domain?

Now, the tricky part with Public Domain work that was re-filtered is, that the copyright is only on the new and unique parts, not the general PD part. For easy examples of retooling a PD character... let's take Robin Hood, a merry but cold-blooded game thief, killer, and excellent bowman following the old stories. This characterization is all PD.

If you retell the story with a gentleman Fox Bowman, then your vulpine character has a very different copyright. If your Robin Hood Expy is blonde, owns a company, and goes vigilante, then it's an original work merely inspired by the old story. If your Robyn Hood is a girl, who lost an eye and was created by a dark ritual, then your copyright is almost everything on the character and separate from the robot mutant shapeshifter of the very same spelling. As said, names are not copyrightable.

Answer 3

Frame challenge: “Which D&D monsters am I licensed to use?”

If your aim is to “avoid lawsuits”, then which ones are copyrighted is the wrong question. As Trish rightly says, all of them are under copyright. (And as J. A. Streich notes, many of them are also trademarked.)

But clearly, that doesn’t mean that no-one can create supplements without getting sued! Instead, what you need to know is, “What am I licensed to use?”

Licence = permission

There is no way whatsoever to guarantee you won’t get sued—not just in this case, but in basically anything. All you can do is minimise your chances of getting sued. (You can also maximise your chances of a favourable outcome if it does happen, but that’s beyond the scope here).

The best way to avoid being sued for copyright or trademark infringement is to have permission from the copyright or trademark holders—the ones who might sue you. That’s what a licence is: permission.

The Open Gaming License^[1] (OGL) is the blanket permission that Wizards of the Coast gives to you, and to everyone, to use certain things that fall under their copyright/trademark, subject to certain conditions. It’s as close as you can get to a promise of “we won’t sue you”.

Everything(?) for D&D 5e that Wizards has put under the OGL is in their Systems Reference Document (SRD). Anything not in that document is off-limits. Anything that is mentioned in that document, but is identified as “Product Identity”, is also off-limits, barring a separate licence giving you that specific permission.^[2]

There’s also a wealth of third-party material under the same licence, but distributed in different documents and with different lists of Product Identity.

Separately, there is also the Community Content Agreement that applies to anything published on Dungeon Masters Guild. It looks like you have to actually start the process of publishing something before they show you what the licence terms are, which is annoying.

Fair use?

Now, a licence isn’t the be-all and end-all. The law often allows uses for which you don’t need permission, like fair use^[3] for copyright, and nominative use for trademarks (using the trademarked name for a thing to name that thing).

But here’s the thing. You say you want to “avoid lawsuits”, which I would suggest also means you want to avoid cease-and-desist letters, or any such legal to-and-fro. It’s a sensible goal—legal proceedings are typically tiresome, stressful, and expensive.

But for all that they’re unpleasant, legal proceedings are not inherently a punishment for doing something wrong. They’re the opportunity for both sides to argue the point, and for a third party to decide if someone did something wrong.

So when you say you want to avoid lawsuits, you aren’t merely saying, “I want to do the right thing.” You’re saying, “I want to stay well clear of any situation where someone might claim I’ve done the wrong thing and make me argue my side.”

Relying on fair use etc. is not a good way to do that, because their entire point is to be used to argue your side. The only way I can think of to use them without the lawyers being involved is to pre-emptively put your argument into your work (as many works do):

Such-and-such is copyright of so-and-so. I believe mentioning it here is allowable under the fair use provision of Country X’s copyright law. If you disagree, please send me a polite letter and don’t jump straight to suing, hey?

(And even then you probably should get a lawyer to write that argument for you! Customary disclaimer: I am not a lawyer.)

Finally, two other problems with fair use etc. One, you may very well give up some of those legal rights under the terms of the OGL or another licence. (The OGL seems to me to specifically forbid nominative use of trademarks, for one thing.) Can they require you to give up those rights? Who knows? You’d have to argue your side to find out!

And two, it’s not even clear to me how fair use could be applied to this specific case. Assuming US law, fair use is for “purposes such as criticism, comment, news reporting, teaching…”. I don’t think “I’m writing a D&D supplement” fits into that.

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[1] Or “Open Game License”. Wizards themselves have used both, not to mention “Open-Gaming License”.

[2] Note that Product Identity may be stronger than just “you can’t copy our stuff”. It would seem to also preclude independent creations, like adaptations from the public domain. If so, then if I publish a Robin Hood supplement that claims “Robin Hood” as my Product Identity, you don’t have permission to incorporate my work into anything that uses the name “Robin Hood”—even if all you copied from my work was something totally unconnected to that name, like my rules for archery contests.

[3] This is the US term. The name and the scope vary by jurisdiction (in Australia, where I am, we have a much more limited counterpart called “fair dealing”), but the basic idea is that there are some uses that the law permits, so you don’t need the owner’s permission.