Can I use more specific monsters and creatures legally?

Question

To be specific, metallic or chromatic dragons for an example. I know mindflayers and beholders and such are way off the list. But is the concept of dragons in distinct categories like this too similar to be used to any extent?

P.S. Respectfully, please don't give me the standard "just make something new". I know that solution, but this isn't a major story point, just world-building that might be brought up in conversation by characters, and I don't want to be sued for my character saying "Did you see the evil-looking black dragon in the swamp?"

(Edit) I think I need to make a clarification since it seems it depends on a case by case basis. I want to include a dragon similar to the Steel Dragon. I don't care about it being steel, I can easily change that, but the lore about dragons pretending to be humans I love. Now, their is a lot of lore about dragons pretending to be human, but not to the extent that a steel dragon does. So that is what I really want to know.

Answer 1

As I see it, "metallic dragon" is just a description like "stone dragon" or "green dragon". I don't see how that description can be copyrighted.

But "mind[f]layer" or "beholder" (if used to refer to a fictional creature) seem quite unusual and specific, and those that are familiar with the work where they originally appear will very likely think of that other work. I think you might be breaching copyright with these terms.

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You can always legally refer to something. E.g. if your character lives in a world (like ours) where Harry Potter is not real but only a character in a book, you can legally have your character dress up like Harry Potter for a party. Or you can legally describe that when your character finally "vanquishes" their high school gradutation they feel like Harry Potter when he vanquished Voldemort. That's what a real person of our world might do or feel, so you can legally describe it.

I wouldn't overdo that, though. If you have a person in our world who imagines he lives in the Star Wars universe and dresses up pretending they were a Jedi and the whole story is about how this mentally ill person lives in this alternate reality – you could do that as a documentary about a real person, but I assume the copyright holders might rightfully object if it was fictional, because they could argue that the story you want to tell (about someone not living in our shared reality) could just as well be told with a made up fictional universe. (There's this movie about a teenager pretending to be a superhero and dressing up like one, but they don't use a superhero from one existing franchise but make up a superhero specifically for this movie. The audience can still understand that it would be the same with Spiderman or Superman.)

What you can never do is have a character or species or magical principle invented by someone else appear in your story. You cannot write a work of fiction where Smaug or Spiderman are real. (Well, you can, but you will be sued to hell.)

Answer 2

Pathfinder 2E remaster is going away from the chromatic/metallic dragon scheme that the system inherited from D&D, and the reason I usually hear given for it is copyright.

While many other OGL-originated creatures (such as chromatic dragons or the duergar) could be salvaged in the Pathfinder Remaster project by simply giving them new names and lore ...

So it appears that it was at least the opinion of the lawyers at Paizo that D&D's metallic/chromatic dragon scheme is derived from WotC copyrighted material, and thus only available to others under licenses such as the OGL. Or at least that it is legally in doubt enough to make it worth the effort to just rewrite theirs to be different.

D&D didn't invent dragons having a color of course. Black in particular has been used in literature since before copyright existed, in addition to being a perfectly reasonable color for a reptilian creature to be. Evan Paizo after the remaster will still have black dragons. However, if you want to use the D&D iconic chromatic/metallic scheme for pairing dragon colors and abilities, that's when this issue would arise.

Answer 3

The answer is NO.

I don't want to be sued for my character saying did you see the evil looking black dragon in the swamp?"

Then don't have your character say that.

You cannot use some other author's original words and phrases in your work.

Now that particular phrase, "black dragon", is probably fine. In Chinese mythology each Dragon King has a color, and the Black Dragon rules the North and Winter. The phrase "Black Dragon" is not copyrighted, nor are Green, White, Red or Yellow dragons.

But if something like a "Chromatic Dragon" appears only in the works of a specific author, don't use it.

It doesn't make a difference if you shoplift a packet of chewing gum, or shoplift a $5000 gold bracelet. It is still shoplifting. Violating copyright "just for an idle conversation" or for a major plot point doesn't matter, theft is theft.

If you cannot come up with something new on your own, stop trying to write for sales. Write for the fun of it. Then put it away and don't ever consider trying to publish it.

Maybe once you get the hang of building a new story with other people's characters and worlds, you can work your way toward a story in an original world, something entirely original, that you could actually sell as your own work.

Without having to hope the lawyers and author you stole from doesn't notice you, because your thefts were "small".

They will notice you.

Anybody that reads your work and recognizes the original author is going to talk about it.

You'll be caught. You'll be sued. You will lose much more than any money you received, all that plush punitive damages.

You'll become known to agents and publishers as a plagiarizer, and they will make a note of your name and avoid you like the plague.

You want to utterly destroy your chances of ever being a professional author?

Steal. See what happens.