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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!

A_Fluffy_Mugcake
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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. – Martin Ellison Jan 10 '24 at 05:32

2 Answers2

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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.

Therac
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  • Besises the CC licensed SRD, you can also use the OGL version, which has different limitations – Trish Jan 02 '24 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 02 '24 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 02 '24 at 11:01
  • On reasons why, I have two guesses: 1) there might be other license deals blocking OGL/CC licensing for these, or 2) they have the strongest copyright claims to these - elves/dwarves/orcs have too much prior art, and stat blocks aren't copyrightable at all. But I'm not sure, so not putting it in the answer. – Therac Jan 02 '24 at 11:24
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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. – Mindwin Remember Monica Jan 02 '24 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 02 '24 at 18:50
  • I said it in my comment, "token-free option". Remember, the Q&A is not only for the question OP but for any reader that stumbles upon it. The answers should be as accurate, concise, and precise as possible. – Mindwin Remember Monica Jan 02 '24 at 20:51
  • @MindwinRememberMonica I know it should apply to everyone, but I'm not familiar with Patreon's token system... Any suggestion on how to explain this in simple terms? – Therac Jan 02 '24 at 21:06
  • What happens if WotC revokes OP's license, but the terms of the site to which the work was posted do not allow OP to revoke their license to the site? – interfect Jan 03 '24 at 17:35
  • @interfect If that happens, the creator's license to the site becomes null and void. The site is now violating WotC's copyright. If the site's policy includes an indemnity clause (Webcomics and Tapas do), the creator can be held liable for this. In short: if a revocable license is pulled, delete the content. If you can't do so on the website, email a takedown request, and CC WotC on all communications, to prove best effort. – Therac Jan 03 '24 at 17:54
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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.

A. R.
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    Sorry, but Illithids are trademarked and their look is copyrighted. – Trish Jan 03 '24 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 03 '24 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 03 '24 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 03 '24 at 18:45
  • It's also not true that similar expression = copyright infringement. One must consider whether the similarity is substantial, and whether the expression constitutes fair use. – A. R. Jan 03 '24 at 18:51
  • I think the OPs focus on copyright is due only to unfamiliarity with IP laws, so a brief discussion of trademark would improve this answer. Note that comments on other answers claim WotC has explicity excluded mind flayers from their "open" licenses. – Vaelus Jan 03 '24 at 19:39
  • @Vaelus They're excluded from the OGL and the SRD licenses, but they're not specifically excluded from the Fan Content Policy (which also acts as a license) as far as I can tell, except possibly by a reference to "trademarks" that includes what is described as an incomplete list of trademarks but appears to just consist of logos. – A. R. Jan 03 '24 at 20:03
  • As an aside, even WotC seems to be confused about what laws protect their own IP. The fan content policy includes a suggestion that they own copyright interests in DnD's game mechanics, which they certainly do not (because we have specific precedent that game mechanics are not copyrightable). But they don't seem to think their monsters are protected by trademark. But then who knows? Their expensive lawyers must be too busy suing people into oblivion to write coherent licenses— the FAQ on the Fan Content policy openly contradicts the policy itself. – A. R. Jan 03 '24 at 20:05
  • Either WotC is confused, or they want sow confusion. In any case, some of that confusion could be cleared up by stating that characters are often "protected" by trademark (and Illithids and/or Mind Flayers may be) and what the limits of trademarks are, along with you existing explanation that only specific concrete expressions of characters are protected by copyright. – Vaelus Jan 03 '24 at 21:57
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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 03 '24 at 22:39