Digital Art Zone

in the case of using, say the cupboard monsters and calling them kobolds for my story, there is nothing to copyright, since buying the figure is only a license to use it. 

but, i could write a backstory for these cuties ‘as kobolds’ and license the backstory for use?

KageRyu - 28 September 2012 12:05 AM

It really has little to do with whether it’s considered “a real thing” or whether it should be making money or not - it has to do with using the intellectual property of someone else, that party being aware of it, and whether enforcement is feasible.

Companies and individuals absolutely have a right to protect their IP.  And we, as consumers, have a right to point out when they’re being asses about it.  It leads to this sort of creative paralysis where everyone is paranoid about using something that happens to use the same terms or concepts, but in a different way, and fearing what is going to be perceived as a frivolous lawsuit that your average person can’t afford to fight.

What Misty Whisky is proposing does not, as far as I can tell, in any way infringe on TSR/WOTC’s IP of their expression of Kobolds, which sound more like potentially troublesome brownies/traditional Kobolds to me anyway.  But she’s worried that some overzealous WOTC employee is going to see that her work has something called “Kobolds” and bring the hammer down on her, even though her expression of Kobolds has nothing to do with theirs.  She is not using their intellectual property, just using the same word to describe her own<em>very different<em> Intellectual property.

I swear, sometimes I feel that Copyright law has done more to stifle creativity than protect it.  I realize it’s more because some companies are overzealous about it, but the paranoia that results is ridiculous.

I do feel the copyright laws go too far. When a company like.. For example White Wolf copyrights every possible permeation of a vampire, including the classic nosferaturu, whose image was devloped by a film (the bald head spindley legs), and borrows heavily from Myth and Legend…. And concepts developed by other authors… Like Anne Rice…  Then what is left for other creators?

Tough to come up with something original and vampire these days without treading on someone’s copyrighted work.

I respect the artist’s right to have some level of ownership… But when companies take every possible variation of something, consider it theirs, then… It becomes to restrictive then I have a problem with it.

With regard to Fairy’s and kobolds, I think they can look the way you want. Many fairy’s could change their physical shape to be tricky, so having them look as you like.

“Kobolt

This is the name of two types of spirits in Teutonic mythology.

(1) The goblins who inhabited the underworld of the mines, like the knockers of Cornwall and who were skilled in the art of mining and metalworking.
They are also known as Cobolts.

(2) The name of the household spirit of German folklore that behaved much like the English brownie.
These Kobolts, also known as Kobold, Kobelt, Kobel, looked like gnomes with their wizened little faces and garments with pointy hoods.  They inhabited the hearth area of the home or the barns and stables, where at night the would complete all the tasks that the humans had left unfinished.  As long as they were treated with respect and given their portion of family supper all would be well.  However, if this were forgotten, then the Kobold could be most malicious in exacting revenge before leaving.  Some Kobolds are known by the local names of Chimmeken, Heinze, Hinzelmann, Hodekin, King Goldmar and Walter”

- Spirits Faeries, Leprechauns, and Goblins, by Carol Rose, pgs. 182-183

Thomas Keightly in his 1880 book The Fairy Mythology has a whole chapter dedicated to Kobols and includes te tale of Hinzelmann to illustrate the nature and properties of a Kobold.

Keightly’s book was latter republished under the title of, The World Guide to Gnomes, Fairies, Elves, and Other Little People.

Keightly description matches the household spirit type of Kobolt.  Keightly also mentions that the word Kobold wasn’t used before the 13th century and talks about the origin of the word.

In Katherine Briggs’s An Encylopedia of Fairies: Hobgoblins, Brownies, Bogies and Other Supernatural Creatures mentions in the section on Knockers that these Cornish mine spirits are not evil and malicious like the German Kobolds.

The Briggs book is out of print, but it is one of the re fence books that most RPG designers and writers have used when researching fairies, elves, etc.  It shows up in the bibliography of many RPGs and in personal conversations with numerous game designers it was mentioned.

Nancy Arrowsmith in Field Guide to the Little People: A Curious Journey into the Hidden Realm of Elves, Faeries, Hobgoblins & Other Not-So-Mythical Creatures indicates that Kobolde were spirits that used to live inside of trees.  The trees were cut down and carved into figures that were locked up and brought indoors and became house spirits.

Children were told to never open the box the Kobolde was keep in else it would escape and cause troube.  To teach this lesson toys that housed a scarry Kobolde figure were made, which survive today in the form of a jack-in-the-box.

Arrowsmith goes on to mention that a Kobolde is about 2 feet tall, with a skin colors ranging from dark green to dark grey, and thei clothing is red or green.

And, I’ll shut up about this as I don’t want to start pulling more books off my shell, etc.

Some quick additional things about WOTC,, TSR, and other game companies.

WOTC is now owned by Hasbro.  TSR which latter got taken over by WOTC had numerous internal problems that resulted in legal among the people and they made numerous bad financial mistakes.

In regards to the old Deities & Demigods book Wikipedia says this.

“For the first 1980 printing, TSR obtained permission from Michael Moorcock for inclusion of Melnibonéan material (from his Elric series of books). The Cthulhu Mythos was believed to be in the public domain, so TSR assumed they could legally use it without any special permission. However, Arkham House, who claimed to hold the copyrights on a number of works by H.P. Lovecraft, had already licensed the Cthulhu property to the game company Chaosium. Furthermore, Chaosium had also licensed the Melnibonéan copyright from Moorcock. When Chaosium threatened legal action, the first printing was halted and the two companies agreed on a compromise: TSR could continue to use the material but must provide a credit to Chaosium to do so. TSR added the credit for the second printing of the book.

The Cthulhu and Melnibonéan sections were removed from the 1981 edition, making it a 128-page hardcover (and giving the original edition a high collector’s value).[2] TSR felt its material should not contain such an overt reference to one of its competitors and removed the two pantheons altogether, thus negating the need for the credit. For this reason, the first and second printings have generally been in greater demand by D&D fans and collectors.[6] The credit to Chaosium and some references to the deleted pantheons were still included in some of the subsequent printings.”

Tactical Studies Rules did get in trouble with ERB’s estate over a John Carter game and John Carter references in “Whit Box” D&D products.

Drow in the old Demonweb series (G,D, & Q modules) are described as having dark skin.  In an old Dragon magazine I used to have Gygax mentioned on where the inspiration for them came from.

One of the bad finical decisions that they made was connected to dice manufacturing.  They wasted a bunch of money on that one.

If you ever get a chance to talk to Lou Zocchi he’ll tell you all about the things that various game companies did that ended in them losing money and how nasty various game companies are.

I best shut up before I start going on about why Mattel end up making the Masters of the Universe toy line and other things connected to the gaming industry.

Jay_NOLA - 28 September 2012 02:39 PM

The Cthulhu and Melnibonéan sections were removed from the 1981 edition, making it a 128-page hardcover (and giving the original edition a high collector’s value).[2] TSR felt its material should not contain such an overt reference to one of its competitors and removed the two pantheons altogether, thus negating the need for the credit. For this reason, the first and second printings have generally been in greater demand by D&D fans and collectors.[6] The credit to Chaosium and some references to the deleted pantheons were still included in some of the subsequent printings.”

Dang…that means I’ve got the ‘valuable’ one?  COOOOOOOOOL….

I had that thing on order for ever, before the shop got it in…since it was on hold, I got one from the first shipment they got.  Still have it and it’s been rather ‘well used’...at least it’s still in one piece, unlike my original Player’s Manual…I think all the pages are still there, but I’m not too sure about that.

DaWaterRat - 28 September 2012 06:32 AM

[Companies and individuals absolutely have a right to protect their IP.  And we, as consumers, have a right to point out when they’re being asses about it.  It leads to this sort of creative paralysis where everyone is paranoid about using something that happens to use the same terms or concepts, but in a different way, and fearing what is going to be perceived as a frivolous lawsuit that your average person can’t afford to fight.

What Misty Whisky is proposing does not, as far as I can tell, in any way infringe on TSR/WOTC’s IP of their expression of Kobolds, which sound more like potentially troublesome brownies/traditional Kobolds to me anyway.  But she’s worried that some overzealous WOTC employee is going to see that her work has something called “Kobolds” and bring the hammer down on her, even though her expression of Kobolds has nothing to do with theirs.  She is not using their intellectual property, just using the same word to describe her own<em>very different<em> Intellectual property.

I swear, sometimes I feel that Copyright law has done more to stifle creativity than protect it.  I realize it’s more because some companies are overzealous about it, but the paranoia that results is ridiculous.

You quoted me out of context, and then argued against my statement meaning what it never meant.

I was not discussing companies launching frivolous lawsuites, and yes many companies do.  I specificly addressed statements of a completely different nature about enforcement and it just starting now because of monetary gain, when their are other factors.

Please at least keep quotes in context when replying and reply to the context they are in. Thank you.

Also, in reference to posts from wikipedia, I can say for absolute fact wikipedia is wrong on this.  I was alive and playing D&D in the 80s, have many of the magazines in question, as well as the books.  I lived through it.  Wikipedia has never been reliable in and of itself, and really should be coroborated with other sources, as anyone can edit a wikipedia article (one of it’s biggest failings as it causes a lot of misinformation to be posted on topics).

**Edit to clarify**
As I said before, there are many reasons Lawsuites may not have always been forthcoming over suspected IP infringement, and it has very little to do with a sudden realisation that it’s “profitable”.  The examples I gave were just a few, but some key reasons a company may not immediately bring suite is that it may not be aware of the potential infringement.  This is also why it seems more common for suites to be brought today than 20 years ago - because we live in an age of ever faster, ever more intrusive information technology, and it is far easier to learn of potentially infringing products and merchandise than 20 years ago…even 10 years ago.  Not all fantasy writers are into Role Playing or tabletop games, so in the past they had to rely on word of mouth to learn of a potential infringement, where today there are far better means.

Additionally, this technology is part of the problem in regards to seemingly frivolous suites.  While there are companies that intentionally use frivolous lawsuites to bully competition, not all lawsuites involving something that should be public domain is the result of this.  Often times the legal departments or agents simply do not know any better.  They rely on software that scours for key terms and situations, and if those come up they are too fast on the trigger finger, sending out lawsuites and DMCA takedown requests - resulting in the takedown of perfectly legitimate content and material, and apparent frivolous lawsuites.  There was a much publicised case of this regarding a video with bird songs on youtube that was flagged as commercial by the automated software - the real problem is that the people operating the software seem to be lazy and uninterested in following up the results to make sure they are valid, instead thinking the software is infallible.  There are lots of other causes too (for example over zealous attorneys advising a client they have a case when they really don’t, etc…).

My point is it is not a simple “it’s making money, so we’re going to claim it” and even when you are the target of one of these baseless actions to enforce IP that is not owned by the party claiming an infringment, you don’t nescessarily need to go to court to clear it up (you don’t nescessarily even need an attorney).  As long as you dot your “I"s and cross your “T"s, do your research (wikipedia is OK for a starting point, but generally not considered reputable in court or research circles so you will want to back it up with as many books and other references as you can - though wikipedia can be useful sometimes to find other books and references for a subject), and keep notes (such as a bibliography of references supporting the property being puplic domain) you should come out on top.

In regards to Kobolds specificly - the manner of appearance, cultural descriptions, etc… as depicted in D&D are protected under various IP laws.  the word is not.  They appear in a lot of fantasy works, in a fashion similar to their appearance in D&D, and if you can show that those works are unrelated and unliscensed, you might be able to justify them being Grandfathered in to public domain, but it is a slipery slope.