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We are making a college board game, and would like to know if we can use a few monsters from dnd to make our game. We don't use the same name as you do, just the images from online and the books.

bdb484
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Louis Lunn
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    You should search the site before posting: https://law.stackexchange.com/search?q=game+copyright – BlueDogRanch Sep 30 '19 at 14:54
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    You say "just" the images but the images are much more strongly protected than the names. Consider the amount of effort that goes into thinking up a name versus drawing a picture of the thing. – David Richerby Sep 30 '19 at 22:47
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    You may be interested in reading about OrcPub (and OrcPub2) which was / is an online DnD character building tool and the various legal issues they have faced. Also, although I think you've posted your question in the right Stack Exchange site since it is legal based, be sure to check out rpg.stackexchange.com and boardgames.stackexchange.com if you haven't already. – RyanfaeScotland Oct 01 '19 at 09:13
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    Please clarify: What do you mean with "a college board game"? Is it a project made for a class which is only meant to get you a good/passing grade? Or do you intent on making it a product? – Mefitico Oct 01 '19 at 13:52

4 Answers4

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No. The images are copyrighted, and you are using them in a way that would leave you with virtually no argument for fair use. The factors for fair use are set out in 17 USC 107, and they indicate that the courts would reject your use:

  1. The purpose and character of the use, including whether it is of a commercial nature or for nonprofit educational purposes: There's no indication that your use would be for nonprofit or educational purposes.

  2. The nature of the copyrighted work: Works of fiction and art are highly creative works at the heart of the policy for copyright protection.

  3. The amount of the portion used in relation to the copyrighted work as a whole: You are apparently copying entire images, though I suppose you could argue that each image is just one small portion of a larger book or website.

  4. The effect of the use upon the potential market for or value of the copyrighted work: You are trying to create a board game, putting yourselves basically in direct competition with the makers of D&D.

I generally prefer a pretty liberal interpretation of what constitutes fair use, but this just has virtually nothing that would make me comfortable arguing in your favor.

bdb484
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    This only applies if they distribute it. Making a board game with copyrighted images for personal use is (As far as I know) perfectly okay. – Programmdude Oct 01 '19 at 00:42
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    You are mistaken. It is the act of copying that violates the copyright. – bdb484 Oct 01 '19 at 02:11
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    On the flip side: it would essentially be impossible to show damages for that home-made board game, and there would insufficient public interest to justify criminal prosecution. – MSalters Oct 01 '19 at 07:40
  • I'd imagine those images are registered, so it would actually be incredibly easy to show damages. – bdb484 Oct 01 '19 at 08:35
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    @bdb484 : who would suffer those damages? If the game was distributed, then yes, every game someone gets from the OP is potentially one less game being sold by the copyright owner. But if someone is creating and playing it privately, what damages does the copyright owner suffer? Singing a copyrighted song in a forest where no one can hear it is still technically illegal, but who is damaged if no one can hear it? – vsz Oct 01 '19 at 11:52
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    @bdb484 It would be easy to show use, yes, but not to demonstrate that the copyright owner suffered more than trivial damages (i.e. the value of buying the game/image) as a result of that use, because it was private personal use. – ArtOfCode Oct 01 '19 at 11:53
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    @vsz Wrong all around. When an artist's copyright is registered, he is entitled to statutory damages, which can go as high as $150,000. The artist need not prove anything about how they were harmed -- only that the copyright was registered and the defendant infringed it. Also, singing a copyrighted song alone in a forest is not illegal at all. – bdb484 Oct 01 '19 at 14:14
  • @ArtOfCode As discussed above, the character of the use is relevant to determining whether the use was infringing, but not relevant to the award of statutory damages, which can run into the six figures for each work infringed. The copyright holder need not demonstrate anything about his actual damages. – bdb484 Oct 01 '19 at 14:16
  • @vsz the standard criteria where copyright starts to apply is 'fixed in a durable medium'; singing a song alone in the forest is not relevant, but recording yourself singing that song alone in the forest on your phone is a violation even if it's never ever shown to anyone. – Peteris Oct 01 '19 at 19:38
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    Again, not quite correct. Copyright protection attaches when a work is fixed in a tangible medium, but there's no such fixation requirement for infringement. The copyright holder enjoys the exclusive right to copy the work, but he also enjoys the exclusive right of public performance. So singing or playing a copyrighted song to an audience at a club could violate copyright, even though it wouldn't be a violation if you were alone in the woods. – bdb484 Oct 01 '19 at 19:46
  • @bdb484 : this doesn't stop some companies (like the owners of the "Happy Birthday" song until they lost a case and the song went into public domain) from bullying people even for singing it in a non-public place. – vsz Oct 02 '19 at 04:08
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    I'm not sure what that has to do with anything. – bdb484 Oct 02 '19 at 06:01
  • Quibbling on point 4: Dungeons and Dragons is a series of (at least) five different tabletop roleplaying games, which at least some would consider distinct from board games. However, there is also a D&D branded board game, Wrath of Ashardalon, which this non-lawyer assumes would be extremely problematic for point 4. – Joel Harmon Oct 02 '19 at 11:36
  • Re "putting yourselves basically in direct competition with the makers of D&D.", That's not what the test is about. It's about whether the market for the original work is usurped by the new work. Competition (i.e. providing an alternative in the same market) is not market usurption, even if it leads to fewer sales of the original. It's about whether the new product fulfills the need to access the original. The new game doesn't replace D&D even if it competes in the same market. It does usurp the market for the images unless only tiny low-res copies are made. That could matter. – ikegami Oct 03 '19 at 18:08
  • For example, MST3K usurps the market of the films they parody because you could see the entire parodied film by watching the MST3K episode, evne if they add comentary over it. That's why MST3K gets licenses for for the films they parody. – ikegami Oct 03 '19 at 18:08
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Many D&D monsters and creatures are based on creatures occurring in folklore and myth, such a vampires and trolls. Those are in the public domain, and anyone may use them freely. But images published as part of D&D, or by independent artists, are subject to copyright, and may not be used without permission. As the answer by bdb484 says, there seems no plausible case for a fair use exception to copyright here.

Note also that the specific descriptive text used in the D&D Monster Manual and other publications is protected by copyright, and may not be copied or closely paraphrased. This is true even when the creature being described is one from traditional folklore.

New creatures or monsters invented as part of D&D would be fully protected by copyright. While the general idea cannot be protected, anything based at al closely on a published description is likely to constitute copyright infringement.

If you were to copy content from published D&D books, a copyright suit might force you to stop distributing your game, and leave you with sizable damages to pay, depending on the exact facts.

You would be wise to invent your own monsters, or create your own versions of traditional monsters from legend and folklore.

Philipp
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David Siegel
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    Most D&D monsters have alternate-source images on the internet so you could probably build your game using monster names from the MM and open source images from the net. As David said--stick to common monsters, I believe Mind Flayer was created by D&D, but not "Greater Devil", "Blue Dragon" or "Elf". Stay away from the MM text too--don't base your attacks, stats or description on the text from the MM. Note that the original MM stole 2 chapters from other sources, was sued and had to remove them. It works both ways! – Bill K Oct 02 '19 at 21:33
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    @BillK Be sure that any such images are in fact under a license that allows the intended use, and that they were posted with the authority of the copyright owner. It is unfortunately common for people to take images and repost them, claiming to relase them under a permissive license, when they have no right to do so. In such a case, any reuser relying on such a license commits infringement. – David Siegel Oct 02 '19 at 21:37
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As noted in other answers, no, you are not allowed to use these creatures under Fair Use. You could go back to their original mythological underpinnings (for those that have them), but you would have to take great care to make sure everything about them you describe comes from myth and not from D&D.

There is another option, however. Many Dungeons & Dragons monsters are available for use under the Open Game License. This does not cover images (at least not Wizards of the Coast’s images; some artists have released images of D&D monsters under the OGL), but it does cover their names, their stats, the names of their abilities, and their general “character.” It also does not cover certain particular iconic monsters, which Wizards of the Coast reserved as “product identity.” This would be beholder, carrion crawler, displacer beast, gauth, githyanki, githzerai, kuo-toa, mind flayer (illithid), slaad, umber hulk, and yuan-ti. It also doesn’t cover myriad other monsters that simply were never released in a book that got open-game treatment. But all of these monsters, for example, may be used.

Correctly following and using the Open-Game License requires some care. Read it carefully, and in particular pay close attention to the requirements in Section 15.

KRyan
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  • Just out of curiosity, why only OGL, no SRD mention? – nitsua60 Oct 02 '19 at 03:48
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    @nitsua60 Because the SRD isn’t really legally relevant. The SRD is just the original document that Wizards released under the OGL, but ultimately what you need to use any open-game content is the OGL, whether that’s the SRD or other open-game content (e.g. Pathfinder, maybe some 5e stuff?). – KRyan Oct 02 '19 at 03:57
  • Ahh... okay. I'm probably not understanding the nuances of what exactly SRD(s) contain vs. OGL(s). Thanks! – nitsua60 Oct 02 '19 at 13:12
  • @nitsua60 Basically, OGL is the licence that can be used to allow you to re-use and redistribute certain D&D content. The SRD is one particular document released under that license. – KRyan Oct 02 '19 at 13:13
  • You can find D&D-related images published under OGL by third-party publishers (in fact I have some on my machine, including the OGL that was distributed with them), but not the images from official rulebooks AFAIK. – Neil Slater Oct 02 '19 at 15:36
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If this is a class assignment to create a game that you have no intention of distributing or selling, then I think you qualify for fair use. Within the context of a college class, it should qualify as educational.

If you are creating a game aimed at the college marketplace that you intend to distribute and/or sell, then it is more complicated. Obviously you can't use the copyrighted images in your product without permission. But can you use the images in a product prototype or mockup that is shown to potential investors or focus groups? This would almost certainly not count as fair use, but if you are only doing private viewings, and you make it clear that those images are placeholders, you probably won't attract any trouble.

If you want to avoid any problems, then find a starving art student that would love to be paid to create images for you. There are sure to be plenty around.

Mohair
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