Is the Greyhawk pantheon protected "Product identity"?

Question

A bit off the usual topic here but I thought I'd see if anyone knew:

Specifically, I'm wondering whether I could make and sell non-game products (like t-shirts, for example) that feature Greyhawk deities.

I'm assuming that the pantheons are Product Identity, but they aren't specifically listed in that list on the OGL.

Also, does being Product Identity protect the content from non-game uses? I assume it does, but again, the OGL talks specifically about writing campaigns, publishing additional rules, etc, not about kitschy little products.

I'm totally thinking so local and small-scale that WotC would probably never notice, but I don't want to do it at all if it isn't by-the-book. Thanks for any insight.

Answer 1

I'm not a lawyer or giving legal advice on a course of action, only explaining my understanding of relevant law and licensing.

There are two things here: copyright and licensing. They cannot be mixed up if you want a clear picture of what's permitted. Because each use completely different rules, they can have different, even opposite answers! Therefore you first have to determine which have control over what you wish to do.

What the OGL is a license for is to re-use the text that it is licensing. You're not aiming to do that, so the OGL is entirely irrelevant to your purpose. Even if you could adjust your purpose to somehow use the license (and were willing, as it requires, to print the OGL verbatim and legibly on every T-shirt and mug!), it indicates in clause 1.e that characters and their names and likenesses are Product Identity by default.

So, yes, the Greyhawk pantheon happens to be Product Identity, but that's irrelevant (i.e., can't stop you) because the OGL doesn't control the use you're aiming for anyway. So what does copyright have to say?

It is unfortunately straightforward in this instance. Copyright grants monopoly rights over particular expressions of ideas. The deities of Greyhawk are original creations and therefore are protected by copyright. That means that Wizards of the Coast has a monopoly on publishing their likeness in all media, including T-shirts, until the term length of their copyright expires.*

So basically: no, you can't use them in any way.

^{* Due to repeated extensions of copyright term limits by the U.S. Congress and the exporting of those extensions via various international treaties, in most places in the world the copyright won't expire until most of us are dead.}

Answer 2

From the OGL:

(e) "Product Identity" means product and product line names, logos and identifying marks including trade dress; artifacts; creatures characters; stories, storylines, plots, thematic elements, dialogue, incidents, language, artwork, symbols, designs, depictions, likenesses, formats, poses, concepts, themes and graphic, photographic and other visual or audio representations; names and descriptions of characters, spells, enchantments, personalities, teams, personas, likenesses and special abilities; places, locations, environments, creatures, equipment, magical or supernatural abilities or effects, logos, symbols, or graphic designs; and any other trademark or registered trademark clearly identified as Product identity by the owner of the Product Identity, and which specifically excludes the Open Game Content;

Emphasis mine.

Gods are characters with names, and therefore fall under the OGL. As such, I would not try and make money with things that fall under the OGL. You might think that because you're local and small you're below the notice, but unless you want to one day drown in WotC-paid lawyers I would not do this.

Answer 3

Trade mark

The names and images of Greyhawk deities are trade marks of WotC. If you use those in any way that would lead a reasonable person to believe that your products were in some way associated or endorsed by them then you are infringing their trade mark. Given what you are planning to do this would almost certainly be the case.

It is not necessary to register or claim a trade mark in order to own one. Trade marks are a common law right that arise from the use of a unique identifier for a product or service; the Greyhawk deities meet these requirements, there are many precedents for character names in literary works to be trade marks.

Copyright

There is no copyright in the names - they lack the requisite creative element. There is copyright in the images; you can't use those. Nor can you use any image derived from those; if you draw an image of St Cuthbert that looks like any image published by WotC it is an infringement.

The OGL does not cover images at all so they are not licensed.