Copyright name questions About "Halflings" and Skaven???

[AlduinTWE]

So I realize this may not exactly be the most appropriate place to be asking questions about legal jargon but I've noticed something. And maybe someone versed on the legality of copyright can explain this to me.

Warhammer has "Hobbits" worked into its world. But they're not called hobbits. They're called "Halflings" Tolkien's other name he used to refer to HIS INVENTED RACE. & Warhammer isn't the only I.P. I've noticed them in. I've seen "Hobbits" in the Witcher franchise, & even in the Overlord video game series. I think Dungeons and Dragons has them too. But like Warhammer, they all refer to the hobbits as halflings. WHY? We all know what we're talking about & what they are, why can't we use the term in other franchises if the creature itself can be lifted from the Lord of the Rings without issue? Culture, physical traits and all. I'm very dumbfounded by this. Halflings, regardless of name are the inventions of Tolkien, so shouldn't the creature itself belong to him too?

Another thing, this term "Skaven" - I've seen it used in the Elder Scrolls series. It's a city in Hammerfell that made its debut in the very first game. Which came out in 1994 - around 8 years after the ratmen of Warhammer fame were introduced to the setting in 1986. There is also an NPC in Skyrim named Lu-ah Al-Skaven. A Redguard woman, presumably from the city in Hammerfell. Not only that, "Skaven" is also the name of a hand-full of REAL WORLD locations from Denmark, Sweden & Poland.

So I got to thinking, could I theoretically also use the term "Skaven" to refer to a race of ratmen in a story or I.P. I make, so long as I change up the characteristics & culture? If not, would changing the spelling work? Same with "Hobbits" - Lets say, I respelled it "Hobits" would that work? Why hasn't anybody done anything like that to get around the name thing? Or would that be a legal no-go as well.

I understand Hobbit likely can't be used, because Tolkien made the word up (everbody still stole the creature but whatever). But since Skaven as a word has existed pre-Warhammer & appears in other mediums, Theoretically, I should be able to use the word Skaven, yes? Kind of like an "Orc" situation. Tolkien use this to described a flat faced race of malevolent being. Now, there were no orcs pre-Tolkien, but the word did exist beforehand. I believe it meant monster in old-english (feel free to correct me if I'm wrong) So, thats how other franchises get away with using orcs too. Spelling & all.

If my ratmen were totally different, could I use the term? If not could I change the spelling and be okay? This is all very confusing. I've wondered this for years.

P.S. I've also seen where the word Khajiit has been used to describe a race of catmen from the Elder Scrolls as well as an old mage from the Overlord Anime/Light Novel series. Why is that allowed? As far as I know, that word & spelling has no real world origins - so why no legal issues there? I'm mostly interested in the Hobbits & Skaven though. That has always bothered me! :)

[ChristmasCretin]

I mean, you could just google it

[an entire Roman legion]

just a sidenote: coincidences happen, and nothing is really original

[Leoscar]

Copyright laws likely aren't the same in different countries. Not every intellectual property protection has world wide effects too.

[Testikles]

"Originally, halfling comes from the Scots word hauflin, meaning an awkward rustic teenager, who is neither man nor boy, and so half of both. Another word for halfling is hobbledehoy or hobby. This usage of the word pre-dates both The Hobbit and Dungeons & Dragons. The German surname Helbling has a similar origin."

https://en.wikipedia.org/wiki/Halfling

As for your other question: Since Skaven is indeed a "real world" name of some places you are certainly able to use it. Connecting it to rats, however, could be interpreted as infringement...and given how protective GW can be it's an option in any case.

Generally, such questions often lead to lawsuits that go on for years and cost an absurd amount of money. So unless you really have to I would not bother with it...and just come up with stuff on your own.

To drive the point home here are three articles concerning lawsuits about the word "sky". Yes, sky, that blue thing above our heads. Should be simple, right? Well...

https://www.bbc.com/news/technology-32593735

https://www.theverge.com/2013/6/30/4480300/microsoft-skydrive-trademark-loss-uk-against-bskyb

https://www.gameinformer.com/b/news/archive/2016/06/19/no-mans-sky-keeps-its-name-after-settling-lawsuit-with-sky-tv.aspx

[EthanT]

Long story short: Games Workshop will send its army of lawyers to sue anyone who infringes on their IP. If they havent, then they clearly have no legal basis to do so. Remember this is why the Imperial Guard and Space Marines had their names changed (To cement their IP as Space Marine and Imperial Guard couldnt be copyrighted)

[Gorwe]

Let's go:

1. Hobbits: I don't think it'd be a wise idea to use it in any way. Afaik, Tolkien came up with it and it literally means "hole builder" or "hole dweller" from holbytla or something like that.

2. Halflings: what Rinden said about it is true. Tolkien did not come up with the word, but as a professor of languages on Oxford, it's natural that he was more aware of some things. My personal understanding is that the "half" portion refers to height. If an average human is 1.6m, an average halfling would be 0.8m, obviously. Basically, another form of midget.

3. Skaven: You are completely correct except in linking it to rats. DO NOT LINK THAT NAME TO ANTHRO-RATS! If you do that, you are simply provoking GW. Regardless of what you do. But you can create cat or wolf people called Skaven, why not?

4. Khajiit: I had no idea about that overlap. But seeing how their province is literally called "Elsewhere"(="Elsweyr"...I believe this also has an overlap with some book series or something), I wouldn't mind it that much.

[abyssalfury]

A pre existing word is completely irrelevant; it's the ideas associated with that word that matter.

I don't know the deal with Tolkien, but I would assume it's probably not a copyright issue considering the amount of other things that were derived from his work. It may be as simple as people not liking the word Hobbit, or a bunch of other reasons. It could also be a case where the copyright holder chooses not to enforce the copyright - someone could hold a copyright, but choose not pursue any legal action related to it.

EDIT: Looked into it, apparently yes it is a copyright issue. Sounds like D&D originally used Hobbit very early on, but changed it to Halflings due to legal issues. Halfling is presumably generic enough as a name that it isn't copyrighted.

Using Skaven as a word is fine. Using Skaven as a race of ratmen derived from Warhammer is not, as long as GW could prove that you infringed on their copyright. There isn't necessarily specific rules to what counts as infringement, but something would have to be fairly far removed from Skaven to be okay, particularly considering how much GW guard their copyrights - i.e. a change in spelling wouldn't work, neither would calling them Skaven and changing their culture.

Note that you can absolutely have a race of Ratmen who act like the Skaven, as long as you a) don't call them Skaven, b) don't try and represent them as being related to WH, and c) don't use characters or concepts directly related to WH.

[AlduinTWE]

This has been very insightful, thank you all! I do have another question though regarding ents. Like the term orc, this is also an existing word meaning giant. Tolkien used it to to describe a race of treemen.

Similarly to Skaven, as you guys say, the term can be use so long as you don't connect it to ratmen. In this case treemen. Dungeons and Dragon learned this the hard way. I'd read they too had treemen called ents but renamed them to treants. A wholly original word.

However the term treant has been used by several other franchises to also describe a race of treemen. Warcraft is probably the most famous example. But treants also make appearance in the Overlord light novel series. Why can they get away with this?

Cone to think of it - has anyone here played any games in the Dungeons franchise? In the 2nd & 3rd games there are actual "ENTS" - so whats up?

Medieval Fantasy sure is a fickle genre when it comes to stuff like this.

[Rekkin]

If you really want to tear your hair out over hobbits, check out the early Ultima games where there was a race named 'Bobbits,' which were just the modern Halfling by a less different name. *That* was close enough to not fly, and they were changed for later games.

I think you'd have to dive pretty deep into IP law to figure out why Ent was off-limits but Treant has become a generic catch-all, but some of it might just boil down to the fact that someone did want there to be a generic term and were okay with other people using it.

[TD2013]

IP laws are pretty tricky mostly because it's a rather outdated system, and leads to several issues like diffrent countries having different IP laws, and thus all this confusion happens that only lawyers can figure out, sadly. Also some companies are more fanatical in their IP claims than others; Wizards of the Coast (Hasbro) and Games Workshop have been rather notorious with their law firms however.

But a few things are clear cut to everyone, mythology names and references are open to all, so if you make a variance of a Mythological race/monster/creature, it should not be claimed. Games workshop actually TRIED to claim Mythology names to their brand/IP but failed miserably. Hence you see them now "renaming" their Fantasy races into names they can lay an IP claim on, such as Dawi (former dwarfs) and so on.

A good suggestion I think to combat any kind of claim on your own (homebrew) setting's creations is to make your world/races/creatures ect. Different by at least 20% that of anything that is known. This is also known as the 20% rule. And the cause why sometimes movies / tv series look so odd if it's of a known franchise (ex. Star trek "kelvin" timeline) but owned by another corporate company.

So in short, Basic Fantasy races / creatures cannot be claimed by anyone, but as soon as they call a basic fantasy race by a special name (Dawi, Skaven, Drucchi) then they may have an IP claim. Savest method is to name your setting's ratmen something different, and make them *at least* 20% different to the Games Workshop version.

Yes it's really annoying, and no these corporates should not IP claim well known Fantasy names and races. But it's better to be save, than sorry. That's what I did with my Dark Elfs for my homebrew DnD themed setting. Name them differently, different history. retain the Skin and Hair color (which is Mythology reference to them, though debated by experts, but w'ever :) _

[brynjar]

This was a good read, thx peeps

[AlduinTWE]

Originally posted by TD2013:

So in short, Basic Fantasy races / creatures cannot be claimed by anyone, but as soon as they call a basic fantasy race by a special name (Dawi, Skaven, Drucchi) then they may have an IP claim. Savest method is to name your setting's ratmen something different, and make them *at least* 20% different to the Games Workshop version.

Yes it's really annoying, and no these corporates should not IP claim well known Fantasy names and races. But it's better to be save, than sorry. That's what I did with my Dark Elfs for my homebrew DnD themed setting. Name them differently, different history. retain the Skin and Hair color (which is Mythology reference to them, though debated by experts, but w'ever :) _

Thats a pretty good explanation. But I pose another question (or a few). In Norse mythology, there are two kinds of elves. Light elves and dark elves (sometimes called black elves). But Tolkien coined the terms "high elf" , "wood elf" , "deep elf" and even "sea elf" none of those types existed before his works.

You say basic fantasy creatures are okay so long as special names are not used. Are those terms invented by Tolkien not considered "special" or unique to his works? Or is it because they're elves PERIOD, that the applied English word that precedes the word "elf" is not considered unique enough/makes the term claimable? I see high elves everywhere, wood elves too. Name a fantasy series, they probably have at least those two species. Case in point - Warhammer, Elder Scrolls, D&D and so on. I think The Elder Scrolls even has sea elves and deep elves(dwemer aka dwarves)

They're everywhere. But there are a handful of species/terms that I've only ever seen used in one fantasy series, that being Blizzard's (World Of) Warcraft franchise. The elves unique to their imaginary world are known as night elves , blood elves , spider elves and void elves. Would those terms be up for grabs too, just like Tolkien's? I don't see why not. I think D&D has a few unique species too. Grey elves, moon elves, sun elves too many elves etc... same question goes for them too. Like, whats the limit here? If Tolkien's terms can be use by various other creators, do you think some of those'd be safe for use too?

I get not making them exactly like they're depicted in other mediums, but lets say night elves. If I wanted to make them evil instead of good and gave them different features like narrow eyes and eyebrows that don't hang 10 feet off their faces along with a non Asian inspired culture like Warcraft has but I still wanted them to have purple skin, is that considered infringement?

I mean Ariel from Warhammer isn't too dissimilar to the night elves of Warcraft. She has purple skin as well as some "nature-like" features like wings. Night elves from Warcraft often have attachments like that on their bodies, where they're almost one with nature itself. She even allies with the wood elves and the night elves are basically the wood elves of their world.