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So, I'm an artist and a writer. I also happen to be very into Dungeons & Dragons. I have made dozens of story ideas in my head, but still have yet to fully write any out. However, there is one story idea I've gotten recently that I'm particularly passionate about, passionate enough to want to make a full comic for it. There's one major problem though, and it's that the story centers around a mind flayer and the happenings of his colony. Mind flayers are copyrighted.

If I were to make this comic, what would I legally be able to do with it? Would I be able to upload it to certain webcomic websites such as Webtoon or Tapas, or is that out of the question? Would I at least be safe to upload it to a normal social media website like Tumblr? And, if it were to hypothetically build an audience around it, would I be allowed to make merch or sell physical copies on Etsy?

I'm really bad with understanding copyright law and fair use, so help would be much appreciated!

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  • You might want to look at China Miéville's "Perdido Street Station". I don't think he calls them mind flayers though, so perhaps it's ok then. Jan 10 at 5:32

2 Answers 2

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It's legal if published with universal free access, because WotC permits it.

Law as written generally requires the original copyright holder's permission to publish a story around copyrighted characters. Fair use mostly applies to reviews and other indirect use, rather than straight adaptation; it likely wouldn't apply here, but it doesn't need to. D&D's rights holder, WotC, has provided a broad license to create and publish D&D-based content, extended to everyone.

So: you can create and publish stories, comics, or anything else, as long as you are publishing them for free. "Free" is defined here as not requiring money or other conditions for access.

You are allowed to publish it on any public website, which doesn't require a subscription or payment, build an audience, benefit from ad revenue and sponsorships, produce and sell merchandise.

This license does include other conditions:

  1. Share-alike: if you rely on this license, you also permit everyone else to share your work or build upon it.
  2. Indemnity clause (they rarely come in play, but are very non-obvious).
  3. Revocability: WotC has the right to change this license, or to revoke it case-by-case, e.g. if they think the content will hurt them.
  4. No trademark license: you can't brand your publications or merchandise with official D&D logos.

This license is similar to what other franchises provide for fan works, when they do so, and leans on the permissive side. Most things short of a paper book or subscription-only content are allowed.

What's not allowed is any paywall or login-wall, including sitewide subscriptions and free subscriptions. You need to make sure the sites you publish on are open to read for anyone, without logging in. Paid access options on Patreon, Tapas or Webcomics are not allowed by this license.

For creating commercial D&D content, one would want to see the Systems Reference Document, dual-licensed under the extremely permissive and irrevocable Creative Commons CC-BY-4.0 license, as well as WotC's Open Game License. CC-BY has no restrictions on commercial use, doesn't impose the same terms on derivative works, and allows for paper publishing or paid access online.

But the Systems Reference Document, both OGL and CC-BY, explicitly excludes mind flayers from its coverage. For a story including them, you'd have to rely on WotC's discretionary fan content license. If you ever go commercial with it to the point of selling a product, you'll need to contact them for licensing (which they'll be happy to charge for, this being their business).

As to why mind flayers are excluded from the SRD, I can't tell for sure. One reason could be that most D&D concepts are based on prior art (races especially) or aren't copyrightable (game mechanics), making any WotC claims to them weak and easily contestable. No one owns the idea of dwarves or elves, and no one can own a stat block. When WotC considered tightening the OGL, major content makers threatened to create a "same but different" system, which they can, leading WotC to back down.

Illithids/mind flayers, on the other hand, while loosely based on Lovecraft's Cthulhu mythos, were first called by these names and codified by Gary Gygax. That makes them original IP with a strong claim. You still can use them under the fan content license, which applies to mind flayers, but isn't as free as CC-BY or OGL, restricting commercial use.

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  • Besises the CC licensed SRD, you can also use the OGL version, which has different limitations
    – Trish
    Jan 2 at 10:18
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    Technically, Mindflayers are excluded in both SRDs: because they are simply not included. They, as well as displacer beasts are considered product identity by WotC.
    – Trish
    Jan 2 at 10:40
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    @Trish The document also states explicitly that "... are not Open Content: ... beholder, gauth, carrion crawler, tanar’ri, baatezu, displacer beast, githyanki, githzerai, mind flayer, illithid, umber hulk, yuan-ti." It's true that, by law, anything not included is not licensed either, but WotC also went to the trouble of excluding Illithids explicitly. Why, I don't know.
    – Therac
    Jan 2 at 11:01
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    This answer is wrong, in the sense TV expert interviewees are. They go around the general subject but miss the specific point entirely. OP wants to post to TAPAS and WEBCOMIC, who are paywalled sites. Even if they go with the token-free option, Patreon advance chapters are also excluded by the license. Jan 2 at 16:57
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    @MindwinRememberMonica I actually checked Tapas and Webcomic first, and it appears that at least some comics there are readable for free. I've repeated the "free" point three times - it's up to the OP to pick sites that fit this license.
    – Therac
    Jan 2 at 18:50
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Technically, it should be fine under US law. The concept of the mind flayer cannot be copyrighted (because ideas cannot be copyrighted). The name "mind flayer" cannot be copyrighted (because it is insufficiently expressive). The stats of the mind flayer cannot be copyrighted (because information cannot be copyrighted). There is no reasonable justification for copyright there whatever.

However, WotC is extremely litigious, and you should expect a long and protracted lawsuit against very expensive and capable lawyers if you don't comply with their restrictive so-called "license." Defending against them will probably cost in the range of hundreds of thousands of dollars.

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    Sorry, but Illithids are trademarked and their look is copyrighted.
    – Trish
    Jan 3 at 18:20
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    An image of course can be copyrighted, but that's not at issue here because OP doesn't intend (as far as I can tell) to use official images in their work. Design copyrights are tenuous, but I think also not at issue here. Trademark law is too wishy-washy for me to have any idea if that claim should stand up, but that's not at issue either because OP asked about copyright. The real point here point is that whether or not they're right, WotC will sue OP into oblivion. (Note that WotC doesn't actually openly assert copyright or trademark, just "brand identity," which isn't even a thing.)
    – A. R.
    Jan 3 at 18:28
  • Brand identity is in effect a non-registred trademark. An image expressing the look of a character makes others using a similar expression copyright infringement.
    – Trish
    Jan 3 at 18:38
  • Any trademark value that might be present in the names of DnD monsters is surely at least diluted by WotC's fan content license, and at worst completely invalidated. Remember that the purpose of a trademark is to designate origin— yet WotC allows unaffiliated persons to use their supposed "brand identity" without any supervision as long as the resulting works are not used commercially! That's basically selective enforcement, which for trademarks is verboten.
    – A. R.
    Jan 3 at 18:45
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    There is some truth to this - if someone independently came up with e.g. a drink called "mind flayer", they'd be in the clear. But the combination of D&D "mind flayer" name, concept, appearance, and lore (colonies) is sufficient to make a copyright claim. Since the OP wants to play it straight, writing a story based on D&D lore, following the license is a much safer bet.
    – Therac
    Jan 3 at 22:39

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