Creature Copyright Confusion

I searched around the forums and at one point even asked support directly about this, but to say there are conflicts would be an understatement. According to the WotC SRD for D&D, there are a number of named characters, locations, items and creatures that fall under exclusive copyright through the publisher. For example, paragraph 4 of the latest SRD (2016) specifically calls out Beholders as a designated Product Identity item and therefore off-limits to third party creators without express written consent. I was referred to the document by a Roll20 rep when I asked about what I could and could not create, token-wise in my case: So those use the D&D5e Open Game License and  System Reference Document  to allow others to use those pieces of intellectual property to make things to sell. However, certain things are disallowed - for instance, a creator might make a token with what looks to be a Beholder, but it cannot be named as a "Beholder". That seemed pretty straight forward, but even a quick glance at the Roll20 marketplace has over a dozen token packs that include Beholders, with that exact name and the likeness you'd expect, along with Mindflayers and a number of others laid out in the SRD as being off-limits. Right there, out in the open and I seriously doubt they got permission from WotC to sell them. Now, I know Wizards has bigger fish to fry and would rather not spend time and money going after some starving artists selling digital tokens for a few bucks, but there still seems to be a question of legality when it comes to the content that A) Marketplace creators can create and B) Roll20 publishes. Ultimately as a creator, I'm responsible for the content I post, but seeing how often Beholders show up in the marketplace has me looking for solid answers. TL;DR: Can I create a Beholder token to sell without getting sued and, if not, why are there so many already up there for sale?

The general way to handle this is to avoid the trademarked term. "Floating Eye", "Eye Beast", Eyestalk Monster, etc. Or to include the name as a keyword and not the title. I can't speak for Wizards or Roll20, and although I think this is a pretty minor matter, it's better to be safe than sorry. Were I to offer tokens of such things, I would offer Squidheads/Cthulhumen, or Devilkin, rather than Mind Flyers or Tieflings. When in doubt, play it safe or ask a lawyer.

So basically, all those people that are offering Beholder tokens, making no effort to hide the name or attribute copyright, are effectively breaking the law? And to that end, Roll20 is enabling them? I realize you're not employed by either, I'm just venting a little. I reached out to WotC and they were less than helpful. Effectively the answer they gave me was "take a look at our document on Fan Works and do your best to interpret what we mean. If you get it right, great! If not, we're suing you into the ground!". Bottom line is that I want to make and sell some of these beastie tokens, but if I change the name of the tokens so as not to rile the copyright gods, it means I can't compete in the search results against those who straight up use the terms Beholder or Mindflayer in their product descriptions since the average user isn't gonna search for "floating eye beast".

I looked through the top-selling 8 or so marketplace items that were not licensed products. None of the eye monster tokens was named a beholder. One had a tag that said beholder. So you won't be losing sales by not calling the token a beholder. Nobody really cares about what the token is called anyway (until it gets time to search through your art library after the purchase is made). I would suggest putting "beholder" into the search tags of the overarching marketplace product where it is hidden away from sight but drives search results.

Brian C. said: I looked through the top-selling 8 or so marketplace items that were not licensed products. None of the eye monster tokens was named a beholder. One had a tag that said beholder. So you won't be losing sales by not calling the token a beholder. I appreciate the idea, and I may very well give this a shot, hoping my assets stand out for themselves. That said, just type "beholder" in the search field, and the very first link that appears is titled Behold . It's not a licensed product, but it contains 18 tokens, all named Beholder (01-xx or zombie or whatever). See for yourself here:&nbsp; <a href="https://marketplace.roll20.net/browse/set/5705/behold" rel="nofollow">https://marketplace.roll20.net/browse/set/5705/behold</a>. &nbsp;The third search result is titled Chibi Underdark Pack &nbsp;which contains two Beholders (named Beholder) as well as 2 Mind Flayers, again, named exactly that. Not to mention, WotC has also copyrighted the term "Underdark" - <a href="https://marketplace.roll20.net/browse/set/4877/chibi-underdark-pack" rel="nofollow">https://marketplace.roll20.net/browse/set/4877/chibi-underdark-pack</a> . I don't call attention to these in order to tattle or anything, they just illustrate the point of my frustration.

B Simon Smith said: You should definitely let Roll20 staff know whenever you find a product that might be breaching IP laws. Scroll to the bottom of Roll20 (this forum webpage), click where it says "DMCA" this stands for Digital Copyright Act (a US law that complies with international IP standards). DMCA is why WotC as a company, not Christopher K, should report/complain if they want Mind Flayers removed. If they choose to, which they may very well be choosing not to.

Gold said: DMCA is why WotC as a company, not Christopher K, should report/complain if they want Mind Flayers removed. If they choose to, which they may very well be choosing not to. I was gonna say this too, yes. A complaint from me wouldn't get anywhere unless I was the person holding the trademark/copyright, which I am not.

THIS. This post means a lot to me and I share the authors worry and frustrations. I am working on a demon pack that would hold a lot more search power if I could use the established index names and terminology for their types. I am most certainly going to play it safe and use the terms, "gaping demon", "gorgon", and "undead centaur" to my certain media detriment in order to duck the legal hammer of Thor. The suggestion to utilize the target names in search tags is reasonable. I suppose we aren't directly calling a thing THE thing, only implying that it is relative to the context of the thing we hope people are looking for :P. Still, its a silly dodge and it would be lovely to have some opportunity to legitimize artist works where the target product is focused. On a related thread of thought, is there an application process via the marketplace for license to sell particular characters? I suspect the opportunities are 3rd party through publishers like pazio but it would be something to legitimately make Star Wars aliens for example.

I suspect you'd need to reach out directly to the copyright holder for permission. Not that it helped me any. As I mentioned before, I sent a message to Wizards after reading in their FAQ that you'd have to ask for permission from them to produce works for sale, but they just blew me off, probably because A) I'm not a toy manufacturer that stands to make a profit and B) I wouldn't be making enough to pay any sort of licensing fees to them. Granted, that might be different depending on the property, but in your case? As someone who has worked with and for Disney in the past - don't count on it.