This post is sort of conclusion to the copying and licensing series which is the previous five posts.
The fact is there is a dizzying array of roguelikes, which were originally released into the public domain (Moria 4.8 is another example, released into the public domain in I believe 1987). The other fact is that various proprietary roguelikes (of which the NGPL is one) shamelessly copy and borrow from the PD roguelikes, the BSD roguelikes (at least Hack IIRC), and even other commercial or proprietary roguelikes. During my very interesting exploration into the licensing issues surrounding creating a proprietary, closed source, commercial (and authentic!) Roguelike game, I came to the following reasonably strong conclusion:
If a monster (or item, or feature, lore flavortext, et cetera.) has appeared previously in a public domain setting, it does not matter if such a monster (etc.) appears later in a GPL or other effectively proprietary game or fantasy setting — it’s free game. I’ve also hit upon a great way to avoid any potential problems; just say where you got the idea from. This could be easily included in the in-game encyclopaedia — another feature common to many roguelikes.
Let’s discuss orcs vs. mind flayers as a quick example. Orcs, as well as ogres and goblins and leprechauns and fairies, are all over the place; no one owns the copyright to them. They appear in Dungeons and Dragons, fantasy novels from hacks to Tolkein, as well as in many free and proprietary roguelike games. Such as Nethack. Well just because it’s in nethack doesn’t mean it is protected under the NGPL. It would be simple to use orcs in my game; just include some passage regarding orcs from a long-out-of-copyright book. IN the case of orcs, the concept is millenia old;
Old English glossaries record the word orc corresponding with Latin Orcus (deity of the Underworld), and synonymous with þyrs/ðyrs “ogre” (cognate to Old Norse: þurs), as well as “hell devil”. The Woordenboek der Nederlandsche Taal defines ork in the very closely related Old Dutch language as a verslindend monster (“devouring monster”), and points at a possible origin in the Old Dutch nork “petulant, crabbed, evil person”. …
The first English use of “orke”, in 1656 (forty-one years before Perrault published his Mother Goose tales), comes from Don Zara, a fairy tale by Samuel Holland. It is a pastiche and a parody of fantastical Spanish romances such as Don Quixote and presumably is populated by beasts and monsters in common to them.[e] A monster called Orcus is mentioned in Edmund Spenser‘s Faerie Queene (Book II, Canto XII, line xlvii).
And there, regardless of Tolkein’s creation of a popular conception of orc, I can use orcs in my game without even having to say I got them from Tolkein. Which technically I didn’t — I got them from dungeons and dragons and Nethack. Point being that including this information to ‘color’ or ‘shade’ or ‘set’ or ‘place’ orcs into the fantasy world of NetWhack (the village of Brynn, etc). prevents me from being accused of copying ‘the kind of orcs in Nethack’ vs ‘the kind of orcs in D&D’, etc. Which I am not doing, at all. My orcs are slightly different in various ways, expressed for example in the game mechanics, actions and AI, lore, world, quests and so forth, of the game. They’re orcs, but they’re uniquely presented. My orcs won’t necessarily be confused for orcs in any other game. In other words, when you encounter orcs in my game, there will be enough surrounding context to explain or present these orcs as belonging specifically to NetWhack. And that is not to say I am trying to claim IP over orcs. But you would probably not want to say that your orcs came from a land called Aejon, or that they had certain qualities only found in Aejonian orcs.
Now let’s look at Mind-flayers, or Illithids. The general concept from these beings was taken from H.P. Lovecraft’s general mythology. Yet, they have been ensconced into the world of Dungeons and Dragons to the point where they, and the Githyanki and associated, have become trademarks of Wizards of the Coast. Yet, mind flayers also appear in closed source proprietary commercial games such as Final Fantasy 1, 4, 9, 11, 12 and Tactics. The pictoral depiction of these mind-flayers is very close if not identical to the description of them in D&D. Gary Gygax stated that he got inspired by the cover of a Brian Lumley book, The Burrowers Beneath, which is part of the whole Cthulu Myhos. It has been pointed out in many online discussions that Square Enix is technically in violation of the WoTC copyright on mind-flayers. Yet it is unlikely WoTC will sue Square, as they have not done so, and these ‘mind flayers’ have now been in FF games for around 40 years.
The situation is, however, a little deeper. As it turns out, the mind-flayer by any other name is a mythological creature. Most D&D and even Tolkein monsters are based on mythological creatures from various cultures. It’s ‘fantasy come to life’. SO it has come out that essentially that for all intents and purposes, the artwork and name cannot be protected unless you are also describing that creature as a member or component of a WoTC fantasy property — such as the Forgotten Realms. As it turns out, this is also how Nethack managed to steal rothes and Jubilex from the Forgotten realms — because they don’t purport to exist them in a D20 universe. Secondly to all of this Nethack’s guidebook even advises players to look up polearm stats in AD&D manuals because the stats are virtually identical. They get away with this for various reasons (In the modern age, most of D&D is free-use under the SDL/OGL, which in short means you can use it anywhere for free without attribution so long as you do it without attribution).
All of this led me to the conclusion that the reason why certain IP is placed under such unrestricrive clauses is because the companies have no choice, because the properties are free-for-use anyways.
Tim Kask, a D&D play tester and editor of Dragon Magazine, described the early days of monster invention in a 2007 article:
There once was an unknown company in Hong Kong that made a bag of weird animal-things that were then sold in what once were called dime stores or variety stores for like $.99. I know of four other very early monsters based on them.
Gary and I talked about how hard it was to find monster figures, and how one day he came upon this bag of weird beasts… He nearly ran home, eager as a kid to get home and open his baseball cards. Then he proceeded to invent the carrion crawler, umber hulk, rust monster and purple worm, all based on those silly plastic figures.
So really, the truth is that being original just means copying something which isn’t copyrighted and then trying to get away with copyrighting it. For better or worse that’s our system and it’s worked out well so far, but it creates a very dangerous situation for content creators such as myself who want to take things as far as they can go in designing an immersive original fantasy world.
As stated above the best thing I can do is reference where I got the idea from, and it better be some ‘public domain’ or common-mythos source. I also plan to research and include what other roguelike games such creatures exist in.
But I won’t be trying to include mind-flayers in my game and then saying that it’s okay because Final Fantasy and Nethack did it. Two wrongs don’t make a right.
Finally, there is also the concept of the un-named/unknown monster. Including an M in my game, that is purple, and docks you stat points (chance on hit), and ‘looks like a wizard with a squid for a face’ or whatever, is perfectly fine. It isn’t copying anything because the game doesn’t even tell you what it is. Maybe it even has special “magic” powers (Psionics doesnt exist in said hypothetical universe, so it couldn’t possibly be “mind flayers” from D&D). You don’t necessarily know the name of every monster when you see it for the first time. As it turns out these monsters are really the purple brainbeasts of Grothb who live in the eastern mountains, created by the Evil Lady of Witchswiss valley. But you might never know that.
I like this idea of encyclopaedia and having a detailed thick book for a game manual. I have an illustrator lined up for this project too. A decent artist, somewhat of a realist style, who has never played any fantasy or roleplaying game before ever. This should be fun!