Is it possible to use creatures from an RPG (like Dungeons and Dragons) in writing a book without infringing on copyrights?

Question

I am planning on writing a book that happens in a universe separate from Dungeons and Dragons universe but I want to have a character be a Kenku.

I know that they are copyrighted for use in other RPGs. But what about in books? Would I just have to change the race name, but can I keep all the attributes? The Kenku is going to be cursed to look like a human. They talk by mimicking things they hear. The main character is trying to fix the curse but doesn't know that the Kenku is a Kenku. The main character thinks the Kenku is a human cursed with some type of impaired speech which makes it hard to understand him.

How do I find what I am able to use and what I can't use? Would the be in the Open Gaming License? Or somewhere else?

Answer 1

Derivative work

The Kenku first appeared in Dungeon Magazine 27 in 1991 and appears to be an original work as far as I can tell. It, therefore, enjoys copyright protection until 70 years after the author dies - it seems unlikely that the author died before 1950 so the copyright has probably not expired, AFAIK, the author is, in fact, still alive.

Your usage is what is known as a derivative work and making derivative works is one of the rights that copyright grants to the copyright holder. You can't do it without permission unless you have a fair use defence: you don't.

If you call your Kenku a duck; it's still a Kenku

This is the inverse of the well-known duck test much beloved of philosophers and employment-law judges but equally relevant to copyright-law judges.

Changing one (or several or even many) aspects of a copyrighted work is still copyright infringement.

You are free to write something inspired by the Kenku but once "it looks like a Kenku, swims like a Kenku, and quacks like a Kenku, then it probably is a Kenku".

Answer 2

The practical answer to this is more complicated than copyright and trademark, as WotC has specific rules that deal with this.

The short answer is that, you cannot use Kenku in your book. However, there are certain circumstances where you could:
If it's fan work that meets WotC's Fan Content Policy
If you don't actually mean "Kenku", but a dissimilar bird person that communicates with mimicry (still iffy, as they may decide it's too similar and sue you anyway)
Or you make your book in the Forgotten Realms and get hired by WotC

First, are you going to sell the book? If not, as long as you follow WotC's Fan Content Policy, you can use it. Free as defined thus:

You can use Wizards’ IP (except for the restrictions listed in #3) to make Fan Content that you share with the community for free. Free means FREE: You can’t require payments, surveys, downloads, subscriptions, or email registration to access your Fan Content; You can’t sell or license your Fan Content to any third parties for any type of compensation; and Your Fan Content must be free for others (including Wizards) to view, access, share, and use without paying you anything, obtaining your approval, or giving you credit.

Let's say you do want to sell it, though. You're still not out of luck.

If make a raven-inspired bird person that talks by mimicry, stuck in a human body (you keep saying Kenku, but that's seems to be the most important aspect - incorporating something that real life birds can already do). And when this person does return to bird person form - simply give them functional wings and literally never call them Kenku.

It may talk like a "duck", but it will no longer look like one. Just as the Tengu of Pathfinder are wingless, but do not use mimicry (they look like a duck, but no longer talk like one), which distinguishes them from the version of Kenku they are based on (Third Edition Dungeons and Dragons, not Fifth, which is the version of Kenku you're interested in). In Legends of the Five Rings, Kenku diverge even further - they have huge wings and do not use mimicry. Additionally, it's pretty likely that if your character has limited mimicry to the point of being noticeably bad at human speech, you're going more by common ideas than what's implied or written about the Kenku's speech capabilities.

That could still be iffy if WotC decides that speech mimicry and being a raven person (regardless of wings) together are iconic enough to be a Kenku. So the more you focus on the core concept of speech mimicry and the more you diverge from Kenku as WotC presents them, the better off you'll be. Ravens are not the only birds that can mimic speech, for that matter. And the way Kenku mimic speak is fairly specific and limited. If their speech was more like an actual bird in sound (not a perfect reproduction of what they heard) that would diverge a bit. As would allowing the character to eventually reach fluency. Alternately, having the character learn sign-language (just don't make it Drow sign language, I guess?) might be another divergence.

However, if you literally want to sell books with a WotC Kenku character, specifically the Fifth Edition Kenku? You would need to get hired by WotC to write this book. From my understanding, Kenku, being from Volo's Guide to Monsters are not covered as Open Gaming License content. And since you'd be removing the Kenku from any Dungeons and Dragons setting, it's unlikely WotC would want to hire you. If you wanted to use Kenku exactly as they are, you should probably just set your book in the Forgotten Realm and try to sell it to them, because you'd be reproducing what WotC calls their "Product Identity".

For a more information (not all of it good) on WotC's practices in regards to this, see:

To what extent can a person use Wizards of the Coast's D&D monster information?

Are Drow Copyrighted? And OGL?

Answer 3

A work that is clearly derivative of the content in the D&D Monster Manual, or another protected publication can only be used with permission from teh copyright holder, in this case WotC.

Use of the name "Kenku " might be protected as a trademark, but use of a trademarkeds work inside another work but not using it tro market of identify the later work is probably not trademark infringement, because it is not "use in trade".

In any case various forms of human/bird mixture, or of intelligent bird-like species is very common coin in SF, and before that in mythology and folklore. WotC has no copyright on tht idea, nort could they have.

Use of several of the specific, distinctive, original characteristics of the Kenku might make a new work a derivative work, this is a very fact-dependent question. But use o9f the general concept has no copyright, tidemark, or general IP implications, and can be done safely.

The same is true for most other monsters or character races/species in D&D or similar RPGs or in fantasy novels or other works. Using a general idea, particularly one that has been used by many others, without the distinctive original elements created or owned by WotC or any other copyright holder is not infringement. Using a few of the original elements, but some elements of your own creation and some from other sources may or may not be infringement, depending on the relative importance of the elements and how a court sees the result.

So it depends on what aspects of the Kenku or any other creature one wants to use, and how original they are with the person or firm claiming copyright.

Answer 4

Kenku are based on the mythological Tengu. You can copy the stats of the creature but it's D&D background fluff that is not part of the original legend would be copyrighted such as proper names and places not in public domain.In any case, you would not be able to copy the fluff text word for word. Many of D&D monsters are from Legend save few inspired by other works (I.e. halflings) or original creations such as Mindflyers and beholders. You can create derivatives of those creatures but can't call them that name.