copyright licensing
How can Heroes of Might and Magic 3 feature Beholders when the same thing was banned from Tibia by Wizards of the Coast?
<p>Facts that I managed to find:</p>
<ol>
<li>Heroes of Might and Magic 3 features <a href="https://mightandmagic.fandom.com/wiki/Evil_eye_(H3)" rel="nofollow noreferrer">beholders</a> (a monster in the Dungeon town), a flying brain-like blob with multiple eyestalks and one large center eye that shoots destructive beams.</li>
<li>Tibia used to feature <a href="https://tibia.fandom.com/wiki/Bonelord" rel="nofollow noreferrer">beholders</a>, a flying brain-like blob with multiple eyestalks and one large center eye that shoots destructive beams.
Changed to <a href="https://www.tibiaqa.com/10125/why-cipsoft-changed-beholder-name-to-bonelord#:%7E:text=With%20a%20small%20patch%20on,full%20of%20dungeons%20and%20dragons" rel="nofollow noreferrer">bonelord</a> after a copyright claim by Wizards of the Coast.</li>
<li>D&amp;D universe features <a href="https://forgottenrealms.fandom.com/wiki/Beholder" rel="nofollow noreferrer">beholders</a> - a flying brain like blob with multiple eyestalks and one large center eye that shoots destructive beams.</li>
</ol>
<p>I did not find any reference to D&amp;D, Wizards of the Coast or anything related in the credits and other resources for HOMM3.</p>
<p>How can 3DO use beholders while Cipsoft (Tibia creator) cannot, and isn't the fact that WOTC didn't pursue the same with 3DO (afaik) grounds for the copyright being unenforceable?</p>

<p>The &quot;Beholder&quot; was originally invented as part of AD&amp;D (2nd edition IIRC) and copyrighted by TSR (Gary Gygax and associates, essentially). WotC bought TSR and all its assets, including copyrights. There were at least two other RPGs that tried to use Beholders and other original creatures from the <em>Monster Manual</em> of D&amp;D and dropped them after a cease and desist order from  the copyright holders. I believe one was from TSR, and one from WotC after they purchased TSR. To the best of my knowledge there was no actual copyright suit, so the validity of the copyright was never tested in court, but it is probably valid.</p>
<p>Merely calling a creature a &quot;Beholder&quot; is not enough to violate the copyright, there would need to be actual copying of the description, or a sufficiently detailed similarity to make the use an infringement. That is always a matter of judgement, ultimately for a court in a copyright suit (or an appeals court).</p>
<p>So, while all the possibilities mentioned in <a href="https://law.stackexchange.com/a/64375/10">the answer by @Dale M</a> are valid, it is additional possible that the version used by HOMM3 is not sufficiently close to the one copyrighted as part of AD&amp;D for a copyright claim to prevail, or the WotC fears that it would not prevail, and so does not spend the money to try.</p>

<h2>There are 4 options</h2>
<ol>
<li>The creators of HOMM3 have negotiated a licence with WotC</li>
<li>They are using it without permission and WotC have not got around to doing anything about it</li>
<li>Ditto and WotC have decided not to do anything - unlike trademarks, a copyright owner does not have to protect their copyright</li>
<li>Ditto and WotC are in the process of protecting their copyright right now</li>
</ol>

<p><a href="https://www.quora.com/How-can-Heroes-of-Might-and-Magic-3-feature-beholders-when-the-same-thing-was-banned-from-Tibia-by-Wizards-of-the-Coast-copyright-licensing-RPG-fantasy-fiction-RTS-gaming-IP-law" rel="nofollow noreferrer">As per the development director of Heroes 3 response to a quora question</a></p>
<p><strong>David Mullich, development director of Heroes of Might &amp; Magic III and IV
Answered April 25, 2021</strong></p>
<blockquote>
<p>We used a beholder in Heroes of Might &amp; Magic III because we did not
think we were infringing anyone’s copyright or trademark in doing so,
and Wizards of the Coast never claimed that we were infringing any of
their rights.</p>
<p>I cannot say why Wizards of the Coast may have contested Tibia’s use
of a beholder and not ours, but if we were to make HOMM3 today, we
would probably err on the side of caution and avoid using a beholder.</p>
</blockquote>
