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With the recent OGL discussions and the probability of people moving out of D&D and making their own games and systems, it got me thinking...

What does Dungeons & Dragons own in terms of races, items and monsters?

Places like Forgotten Realms and characters like Mordenkainen are obviously theirs. Also they clearly do not own dragons and elves since those have existed in myths and fantasy for centuries.

But what about creatures like dragonborns and tieflings? Do they only own the name or do they own the concepts? Or just half the of the concept?

If you were to make your own world, what can be used freely and what would be stepping on Hasbro's and WotC's property? How do you even find what can be used or not?

This is mostly about lore and world building concepts than gameplay systems.

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    \$\begingroup\$ This seems like it'll need some extremely long answers, and any answer's going to need a "I am not a lawyer, and this is not legal advice" disclaimer. Not that that's necessarily a bad thing, but it is something to note. \$\endgroup\$
    – GMJoe
    Commented Jan 19, 2023 at 20:19
  • \$\begingroup\$ In terms of "what they own", WoTC/Hasbro has copyright on all of the materials they've published, and trademarks on some key terms and trade dress. That is, technically, "what they own". So I don't think that phrasing that question in that way leads to useful information. \$\endgroup\$
    – Dave
    Commented Jan 19, 2023 at 20:57
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    \$\begingroup\$ I removed the PF2e tag since none of the question is specifically about Pathfinder, Paizo, or Golarion. Examining that is probably a separate question anyways (but, in the case of PF2e, it's nothing). \$\endgroup\$
    – ESCE
    Commented Jan 19, 2023 at 21:16
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    \$\begingroup\$ @ThomasMarkov this points out that the statement "Places like Forgotten Realms and characters like Mordenkainen are obviously theirs." isn't really correct, in that these two terms are different legally; Maybe the better way is to say that these terms were identified as "product identity" under the OGL, and then ask what legal protections outside of that document applies to these kinds of terms. \$\endgroup\$
    – Dave
    Commented Jan 19, 2023 at 21:28
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    \$\begingroup\$ @Dave They claim all characters as theirs in their copyright notices, and claim names used in spells as product identity, so I am pretty sure Mordenkainen is going to be defended as their IP. Gary Gygax lamented often enough that he lost the IP on his own, favorite player character's name to TSR. If he could have used it, he would. \$\endgroup\$ Commented Jan 20, 2023 at 7:10

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I'm not a lawyer but I play one on the internet. For the purpose of this discussion, intellectual property breaks down into two concepts that are often confused: copyright and trademark.

Copyright is the right to print copies of a specific work. You can, to a limited degree, copyright a character outside the context of a particular work, but that gets very complicated very fast in the sense of "how much difference is enough?"

Generally, copyright in the context of tabletop gaming is extremely limited. You can't copyright game mechanics -- nobody can own the concept of "+4 to hit" or "AC 12", nor the concepts of Feats or Classes. The rules as a conceptual thing cannot be owned. You can, however, copyright a specific expression of the rules. So you can write a game that functions the same as D&D using your own words and expressions, and that is legal, but you can't use the exact text WotC has printed and claim it as your own separate game (and again this can get complicated because tweaking a word here or there isn't enough to count as a new work).

To some extent, WotC can claim a copyright (or possibly trademark) over certain game element names like "Tiefling" that don't have a particular mythological basis (the term appears to have been invented by WotC or TSR), but that copyright does not extend to the concept that the name represents. That is to say, you may not be able to write up a section on Tieflings, but you could call them Nephilim and have virtually the same species, because the concept of a half-demon child is not unique to Wizards, and they simply can't own a story idea like that even if it weren't a preexisting idea.

But I mentioned trademarks, and that's the broader and even more complicated side of IP. If copyright law is complex, trademark law is a portal to the Far Realm. A trademark is anything that is identifiable as belonging to a specific company, from a specific character to a setting to a particular typeface. Trademark protection is aimed specifically at preventing confusion among consumers -- it's basically anything that, if an average person involved in that particular hobby or industry sees it, will make that person say "Ah, this is a product from Brand X!"

In short, trademark represents anything Wizards can claim as "brand identity". I know for sure they've made that claim on some specific monsters including, as I recall, the beholder, owlbear, mind flayer, bulette, and flumph. Maybe gnolls, too, at least in the "humanoid hyena" form (the word "gnoll" predates D&D, but only as a sort of general term for some kind of dangerous fae-like creature). Much of D&D is based on existing mythology, folklore, and older stories and is thus blocked from any kind of trademarking -- for instance, they can't claim dragons are brand identity for Dungeons & Dragons because you can easily point to older works featuring dragons.

But there is a point where another work can't claim they're drawing on older works because they've used too many details specific to D&D. For example, if you have blue dragons that spit lightning, specifically, in your game, then you might be on unstable ground because associating specific color-coded dragons with specific breath weapons could possibly be a kind of brand identity.

Similarly, if you have kobolds who are tiny dragon-people, you might have a problem because while a kobold is a traditional germanic faerie creature that lives under the earth and sets traps for the miners, the tradition does not specify them as little reptilian humanoids.

But I say "might" a lot here, because trademark is hideously complicated. Much of it runs on case-law and "reasonable person" standards that don't lend themselves to clear bright-line rules. Even big corporations often have to actually run through a lawsuit to determine if something is or is not trademark infringement, and sometimes the outcome just depends on the individuals involved in the decision.

Which is all to say that it likely isn't possible to draw a clear border around what constitutes WotC IP and what doesn't. (Hint: Corporations like it that way. They'd prefer that you stay far away from their territory.)

If you want to be cautious and avoid infringement, your best bet is to make things up yourself or use only elements you can specifically trace to pre-1970s literary roots or are in widespread use in non-WotC products. For example, green-skinned goblins and orcs with jutting lower teeth probably originated with a specific line of wargaming miniatures intended for use with D&D, but since it's widely used trope in many different products (such as Warcraft and Warhammer), you're probably safe doing the same. In trademark law, "everybody is doing it" is actually a legitimate defense, since you can't claim "this element automatically implies it's from my company" if it's in common usage in your particular industry.

Note that "trademark" and "registered trademark" are not the same thing. A company doesn't have to register everything that could possibly be considered trademarked material in order to get legal protection on it. A registration is a sort of pre-determination that a given element is theirs and theirs alone, but it defines the minimum area they have trademarked, not the maximum.

I'm sure this isn't as useful as you could have hoped, but that's just the way IP law is. And I'm sure I've missed some points or said some things that aren't quite accurate. As said, I'm an interested observer, not a trained lawyer.

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  • \$\begingroup\$ Comments are not for extended discussion; this conversation has been moved to chat. \$\endgroup\$
    – Oblivious Sage
    Commented Jan 22, 2023 at 20:41
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Items claimed as "product identity" by Wizards of the Coast

I am not a lawyer, and not even playing one on the internet (I am playing a Hobgoblin).

Wizards is claiming the following items to be their "product identity" in the OGL 1.0a, so this would be a minimal set:

The following items are designated Product Identity, as defined in Section 1(e) of the Open Game License Version 1.0a, and are subject to the conditions set forth in Section 7 of the OGL, and are not Open Content: Dungeons & Dragons, D&D, Player’s Handbook, Dungeon Master, Monster Manual, d20 System, Wizards of the Coast, d20 (when used as a trademark), Forgotten Realms, Faerûn, proper names (including those used in the names of spells or items), places, Underdark, Red Wizard of Thay, the City of Union, Heroic Domains of Ysgard, EverChanging Chaos of Limbo, Windswept Depths of Pandemonium, Infinite Layers of the Abyss, Tarterian Depths of Carceri, Gray Waste of Hades, Bleak Eternity of Gehenna, Nine Hells of Baator, Infernal Battlefield of Acheron, Clockwork Nirvana of Mechanus, Peaceable Kingdoms of Arcadia, Seven Mounting Heavens of Celestia, Twin Paradises of Bytopia, Blessed Fields of Elysium, Wilderness of the Beastlands, Olympian Glades of Arborea, Concordant Domain of the Outlands, Sigil, Lady of Pain, Book of Exalted Deeds, Book of Vile Darkness, beholder, gauth, carrion crawler, tanar’ri, baatezu, displacer beast, githyanki, githzerai, mind flayer, illithid, umber hulk, yuan-ti.

Interstingly, some monsters that I normally associate with the brand such as the Owlbear, Rust Monster, Bulette or the Gelatineous Cube are not part of this list (in the case of the first three, maybe because their likenesses originated from cheap plastic toys). As Darth explains in his answer, the full extent of what they could consider Copyright material is larger than that. The actual scope will only be determined if you use something and get challenged in court. (Thanks to @KorvinStarmast for this way to express it).

Items claimed as copyright or trademark by Wizards of the Coast

A copyright notice (here taken from Tomb of Annihilation, p. 2) they use reads:

DUNGEONS & DRAGONS, D&D, Wizard of the Coast, Forgotten Realms, the dragon ampersand, Player's Handbook, Monster Manual, Dungeon Master's Guide. Volo's Guide to Monsters, all other Wizards of the Coast product names and their respective logo are trademarks of Wizards of the Coast in the USA and other countries. All characters and their distinctive likenesses are property of Wizards of the Coast. This material is protected under the copyright laws of the Unhed States of America. Any reproduction or unauthorized use of the material or artwork contained herein is prohibited without the express written permission of Wizards of the Coast.

So they consider at least all characters and their likenesses, product names, and artwork their copyrighted material. Sections of text large enough to be recognizably from their work are probably also covered. I believe if they use a brand in their course of business, they do not have to get a formal trademark (TM) or registered trademark (R) to defend it, although that can help their case in case things go to court.

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    \$\begingroup\$ Side note: WotC could claim things to be part of their product identity without that being legally enforceable. ... But if you want to not end up in the middle of a lawsuit, it's probably best to avoid using those things in your own works, or at least tread carefully. \$\endgroup\$
    – NotThatGuy
    Commented Jan 20, 2023 at 14:34
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    \$\begingroup\$ So, they are trying to claim control of a figure that someone wrote about 160 years ago? Next thing you know, some celebrity or company will try to trademark kimonos or açai. Oh, wait, that actually happened too.... \$\endgroup\$
    – Obie 2.0
    Commented Jan 20, 2023 at 22:05
  • \$\begingroup\$ text is only covered if copies word for word, retype it in your own words and it is completely fine. \$\endgroup\$
    – John
    Commented Jan 21, 2023 at 3:27
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    \$\begingroup\$ @John That's not right. If you write something in English, and I translate it into German (unlikely, my German isn't good enough) distributing my translation would be a violation of your copyright. The resulting work has both your copyright, and my copyright. \$\endgroup\$ Commented Jan 21, 2023 at 8:07
  • \$\begingroup\$ Books that they wrote, the pictures in them and elsewhere. So, nothing new here that a writer or an artist hasn't had to deal with when trying to make, or get away with what is essentially, a derivative work. +1. \$\endgroup\$
    – Mazura
    Commented Jan 21, 2023 at 20:25

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