I’m breaking my arm patting myself on the back … at least for being quick on the draw.
I was able to come up with an additional answer to the following question, moments after it was posted on Avvo.com:
Q: Can I use mythological creatures on a card game?: Are mythological creatures, such as chimeras, wyverns, cerberus, mermaids, spirits, dragons, etc. of public domain? What I mean with this is, may I use this concepts on a card game without facing any possible sues for trademark or copyright infringements based on the character concepts?
Considering the artwork won’t be exact copies of any existing card game or illustration made before. Just the concept like: dragon.
A couple of other lawyers had already responded within minutes, but brownie points were available for a third answer if provided immediately. I recalled an excellent article about a successful copyright infringement defense that I’d read years ago in The Philadelphia Lawyer. And I recalled that Art’s firm had posted the article on the Web. So I immediately found the link to it and posted:
A: Gerry’s answer: This was a good question, and attorneys Jacobson and Michelen provided some good answers.
From a copyright standpoint, you want to minimize the likelihood that you’d be creating a “derivative work.”
See this article by attorney Art Seidel http://www.drinkerbiddle.com/Templates/media/files/publications/2001/a-case-of-variations-on-a-theme.pdf
It tells the story of how he successfully defended a claim that a particular artist had created a “derivative work” depicting cardinal birds from a copyrighted work that the artist had previously sold to the Franklin Mint.
If you haven’t already read Art’s story, now’s a good time to enjoy it. What a brilliant litigator he was!