Are there copyright concerns writing about fantasy elements other authors have used?

Question

I am wondering if there are any copyright concerns when writing about elves, dwarfs, wizards, clerics and the like? How do I write high fantasy without stepping on the toes of Tolkien or Forgotten Realms?
I am noticing that many people include these similar elements, from Discworld to Eragon, so I am assuming the general subject matter, being based in myths and legends, is open game.

Answer 1

Insert Standard "I Am Not A Lawyer" Disclaimer here.

Writing about ideas or mythical races is, generally speaking, quite alright. They are not copy-right/trademarked because they are ideas/in common usage.

It's not directly related to writing, but it is in a similar creative space - Games Workshop have quite a history and reputation for retaining a rather rabid legal department who will bully and harass anything they see as encroaching on their "Intellectual Property" on 'brands' that they own. The most infamous of these were their Space Marine suits. They would send anyone and everyone breaches if they were using the words "Space Marine" in any commercial sense (https://www.techdirt.com/articles/20130206/06521321890/games-workshop-proves-it-would-rather-bully-authors-than-be-culture-participant.shtml)

However, this backfired on them when a court ruled that they couldn't enforce trademark on terms or ideas such as Space Marine, High Elves etc and they have been busy rebranding their products ever since (i.e. Space Marines have now become Adeptus Astartes - which they always where, mind you, but were commonly referred to as Space Marines. The Imperial Guard became the Astra Militarum. High Elves became Asur and then Aelfs, Orcs becam Orruks etc).

TL;DR version: Using concepts such as elves, mages, clerics and adventurers etc isn't impeding on any IP. If your cleric was a Cleric of Lathander, your elves were Eladrin and the capital city was Ankh-Morpork etc IS directly impeding IP and you will be liable.

Answer 2

Try to be original!

I mean, assuming that you are trying to write something other than mediocre derivative works.

Yes, it is legal, but that doesn’t mean you have to use them.

Although JK Rowling showed us that you could write brilliant novels re-using worn out concepts and ideas, many readers are sick and tired of the same formulaic re-hashed elves, dwarves….

Start by reading more extensively about the genre. Asking “is it legal?” shows that you haven’t read the myriad of fantasy books containing those elements.

Also, you might find out that your brilliant and original ideas about “High Fantasy, along with some sci-fi, and parody” have been exhaustingly written about by a few dozen writers.