Marvel & NCSoft Update

As we have noted here before, Marvel has filed a lawsuit against NCSoft and Cryptic Studios based upon claims that City of Heroes infringes Marvel's intellectual property.   NCSoft has now retained Cooley Godward LLP and last Monday filed a Motion to Dismiss in the United States District Court for the Central District of California.

The motion is made pursuant to the federal rule that allows a defendant to terminate a case where the plaintiff fails to allege facts that would support legal claims justifying further proceedings.  Generally, the short memoranda that accompany these sorts of motions do their best to persuade the reader (the judge) that the suit should be thrown out.  So they can have some punchy rhetoric thrown in.  This one kicks off with the following:

Kids with wandering imaginations have long decorated school notebooks with pictures of fantastic and supernatural beings of their own design.  The ingenuity of individuals, as expressed through the creation of characters incorporating timeless themes of mythology, patriotism, 'good,' and 'evil,' has been a source of entertainment in the form of role-playing games for ages.  In the face of technology that enables individuals to engage in such activities in a virtual, on-line context, Marvel Enterprises, Inc. and Marvel Characters, Inc. (collectively, 'Marvel') have taken the unprecedented step of attempting to appropriate for themselves the world of fantasy-based characters...

The meat of the memo is the legal analysis, which I won't comment on, except to say that you'll find a lot of the citations and themes in the copyright section familiar if you followed the Napster litigation.  After the legal analysis, the memo concludes:

City of Heroes is a tool that encourages originality, not slavish copying.  It allows young and old to exercise their imaginations to create super-powered beings and send them off to interact with the creations of other individuals in a virtual world called Paragon City.  If it should be banned, then so should the #2 pencil, the Lego block, modeling clay, and anything else that allows one to give form to ideas...

As I mentioned before, the EFF is paying close attention to how this unfolds and is looking for fans outraged by the lawsuit.  Wendy Seltzer, staff attorney for the EFF, has posted over on Warcry:

If you've tried to play a character that looks like a Marvel character, we'd like to hear from you. You can post to this thread, or better yet, email me at wendy@eff.org. 

Looks like the hearing on the motion is scheduled for February 7th. 

Comments

[Richard Bartle]

Greg Lastowka (quoting Wendy Seltzer)>If you've tried to play a character that looks like a Marvel character, we'd like to hear from you.

If Marvel win the case, wait 5 years. Then, it'll be "If Marvel have created a character that looks like your City of Heroes character, we'd like to hear from you".

Or, not being a lawyer, am I missing the point? Only it seems to me that if Marvel believes CoH contains Marvel IP, that means Marvel accepts that the characters in CoH are something which can carry IP. That being the case, any future Marvel superhero that matches any of the tens of thousands of characters created by CoH players must be violating CoH's IP. Wouldn't it be in Marvel's best interests to prevent CoH from having all that IP than to hand it to them on a plate?

Richard

[J.]

Well, from that thread, someone asked Wendy the obvious question: why should anyone admit to having a Marvel-inspired character? Her answer:

"We don't think Marvel's trademarks or copyrights are infringed _even if_ players create characters that look a lot like Marvel's, any more than people who sketch Spider-Man should have to pay royalties for showing their friends.

Copyright law's fair use defense and trademark law's principles of use in commerce and "consumer confusion" both mean that not every use of an image is an infringement. If players aren't passing off their characters as Marvel, but instead using some of Marvel's ideas as inspiration for their own non-commercial creations, they shouldn't have to pay a Marvel tax."

[Ola Fosheim Grøstad]

Richard> If Marvel win the case, wait 5 years. Then, it'll be "If Marvel have created a character that looks like your City of Heroes character, we'd like to hear from you".

Why would CoH characters be trade marks?

[Bruce Woodcock]

CoH characters aren't trade marked, but they are owned and therefore copyrighted by Cryptic. Part of their "plan" was, when they contacted both Marvel and DC before release asking for lists of all prohibited characters, was to claim any character the CoH comes up with that isn't on the lists would be theres. And given the sheer number of them, it's going to be hard for DC or Marvel to create any new character that doesn't infringe in some way with some CoH character.

Bruce

[Ola Fosheim Grøstad]

Bruce, that would never hold, at least not on a global scale. CoH characters aren't recognized by the public, DC/Marvel characters are. What does copyright reward you for? Basically for the work you put into expressing an idea, but not the idea itself. What has Cryptic developed? Not the characters, but the character creation system... DC/Marvel have developed their characters. This is quite different IMO, at least on the ethical level. DC/Marvel characters are signs that point to real works i.e. specific stories. CoH characters point to play-experiences... not works.

[Lars Lien]

Why should one piece of art have copyright protection whilst another should not?

I can see no (legal) difference between a specific story and a specific play experience.

Sure, Marvel characters may be recognized by the general public, however most CoH characters would be recognized as a CoH character/play experience by most anyone playing the game (100k+ subscribers).

Is this a popularity contest?

[Dave Rickey]

Copyright and Trademark aren't the same thing, Trademarks have much stronger protections and more flexible interpretations (for example, since UPS has trademarked the use of brown trucks and uniforms for a delivery service, someone who ran a courier service using brown minivans and business suits would probably lose in court, even though they aren't exactly the same).

And actually it is a popularity contest, one of the purposes behind Trademarks is that they are so instantly recognizable because they represent a significant investment by the holder in building brand awareness. Infringing on the trademark in order to gain from its recognizability is exactly what the trademark protections are supposed to prevent. But I don't think that's Marvel's claim, rather Marvel is worried that the "lookalike" characters in CoH will dilute the value of the trademarked characters (trademarks that are not agressively defended can be lost). The lawyers present can feel free to correct me.

--Dave

[David Demchuk]

Yes, but playing a resemblance of a Marvel character on CoH doesn't take anything away from Marvel (any more than designing and wearing your own Spiderman costume rather than buying one at Walmart)...unless Marvel is a) planning on releasing their own MMORPG based in the Marvel universe, or b) planning on licensing their characters to a game developer for a similar purpose. (The thinking being, I guess, "Why would I play Spiderman in that loser game 'Marvelworld' when I already play him in 'City of Heroes'?") Does anyone know if Marvel had any such plans? And why isn't anyone at DC launching a similar lawsuit? It's not like you couldn't just as easily impersonate certain DC characters (or Mattel characters, or certain celebrities)...

[Alan]

I love motions like this. So inflammatory and yet so.. empty.

Here's my guess on how this began:

Marvel sees that players can and do create look-alike characters in CoH. Marvel is not happy about this. Players may misuse the characters, say things they shouldn't, act inappropriately, effectively erode some of the good will Marvel has built up in the characters. Marvel instructs its attorneys to do something and so they sue NCSoft for various copyright, trademark and unfair competition claims, hoping to nip this in the bud. Marvel may also be worried about NCSoft creating look-alike characters of their own (Statesman). If it can, I'm sure Marvel wants to close that one down too to prevent others from doing similarly.

The big problem here is that they're dealing with a new nontraditional medium: computer games. NCSoft may have provided the means but does that mean they're wholly accountable if their subscribers create things that look like copyrighted chars? Words like "inducement" and "contributory" and "dilution" come to mind but no shoe quite fits this one.

Is it a commercial use by the infringers? Is there a profit realized by the infringement? Is there any dilution? Does the use affect Marvel's ability to realize a profit from similar uses of those same copyrighted and trademarked items?

I like the Napster cites and arguments but this is a new medium. It's not file sharing. It's not mp3s. It's not even all that similar to the Napster medium. (All my opinion of course.) This is the same reason the Grokster case is going to the US Supreme Court. It doesn't quite fit with previous decisions.

This is a 12(b)(6) motion, an exceedingly common one in law. Most if not all cases have one of these. The vast majority of these motions are not sustained and the case moves on to discovery or trial. My prediction is that this motion won't be sustained, certainly not in its entirety. I wouldn't be shocked, however, to hear that one or two causes of action are knocked off. A few of them feel light and ill-supported, though it's hard to tell from the (biased) defendant's motion (which is all I've read).

~//~

Richard Bartle> If Marvel win the case, wait 5 years. Then, it'll be "If Marvel have created a character that looks like your City of Heroes character, we'd like to hear from you".

You still need a registered copyright so the turnabout isn't quite guaranteed. For misappropriation you also need some connection between Marvel's new character and some element of inspiration drawn from the CoH character. Traditionally that is *very* difficult to show.

Lars Lien> I can see no (legal) difference between a specific story and a specific play experience.

Fixation. U.S. copyright law is based entirely on fixation. It's the reason performances can't be copyrighted. Arguably a "play experience" is not fixed and, hence, not capable of copyright registration and protection. However, the code that generates it *is* fixed and protectable. Subtle difference but significant.

[Kirk Job-Sluder]

*ahem* Marvel's own Squadron Supreme has characters that are obviously and admittedly similar to DC's Justice League. What I get from reading these cases over and over again is that we are looking at a plutocracy in which how much right one has to created works depends on the size of your legal team.

[Bruce Woodcock]

Yes, Marvel is working on their own superhero MMOG. However, that certainly doesn't have to be a requirement. Let's say I own a copyright on a character I created in a series of super spy novels. Now, just because I haven't licensed him to be used in a game yet, does that mean another company can run along and make a bunch of games using that character? Or a character almost exactly like him, with an obvious anagram of his name? No, I don't think so.

As for Squadron Supreme being a ripoff/homage to the JLA, yes they were. Marvel also ripped off the Legion of Super-Heroes via the Shi'ar Imperial Guard. But despite their obvious similarties, they did develop distinct stories of their own, and this was not used to gain advantage in the marketplace. No one bought issues of Squadron Supreme instead of JLA saying, "Hey, these are the same characters, so why should I buy JLA?"

The issue will come down to something similar here. That CoH will remove any direct "copies" of Wolverine in its game is a given. The question remains if CoH should remove any Wolverine-like characters that have claws and regeneration and an accent but a different costume. IANAL, but it seems to me one could argue given that these characters are player controlled and are in a completely different context with completely different backstories and history, they are sufficiently different IP. But getting back to the point, can it be said that no one will play Marvel Super Heroes Online because they can just as easily play Wolverine in City of Heroes? I don't think so. Firstly, you're not going to get to play Wolverine or other characters in MSH Online anyway, and secondly, the context of being in the whole Marvel Universe changes the very meaning of the character.

Bruce

[greglas]

I don't want this to come off wrong, but talking in breezy generalities about trademark law and copyright law is ill advised -- they are pretty complicated doctrinally. Most popular understandings of what they are and what they cover are at least partly wrong. For the basic principles, a good place to start on copyright is here and a good place to start on trademarks is here. Dave's statement that copyright and trademark are very different things is correct. If you're really curious, read Title 17 and compare it with Title 15, Chapter 22. And after that, start reading the caselaw. :-)

Richard>"If Marvel have created a character that looks like your City of Heroes character, we'd like to hear from you".

Hmm... there are a lot of issues to think about. One of the questions that interests me is this: suppose you generated your CoH character by hitting the "random" button -- and you end up with a really cool-looking character that way. Are you an author now? Is hitting a random generation button the kind of "authorship" that society should protect?

[Scott Shepherd]

Quote: "Bruce, that would never hold, at least not on a global scale. CoH characters aren't recognized by the public, DC/Marvel characters are. What does copyright reward you for? Basically for the work you put into expressing an idea, but not the idea itself. What has Cryptic developed? Not the characters, but the character creation system... DC/Marvel have developed their characters. This is quite different IMO, at least on the ethical level. DC/Marvel characters are signs that point to real works i.e. specific stories. CoH characters point to play-experiences... not works."

Actually NCSoft/CoH have published many characters created in their game via their monthly comic sent out to all their subscribers. They most definately hold the copyright to those characters and content. Whether they hold any copyright on the characters that haven't been published existing only in-game is questionable.

[Bruce Woodcock]

If a million monkeys banging on a million typewriters produce an exact copy of Hamlet, is it copyright infringement? Okay, so Shakespeare is in the public domain and monkeys don't have IP rights, but you get the idea.

Bruce

[John Biernacki]

I only have a short comment about this. Something on Marvel's part I don't understand. They should have realized how many superhero fans play CoH, and probobly many of those CoH Players are Marvel fans, or were. I know plenty of players from the game who used to love Marvel now have thier names on Marvel Boycott petitions agenst this lawsuit. Did Marvel not consider upseting thier fanbase?

[Richard Bartle]

greglas>Is hitting a random generation button the kind of "authorship" that society should protect?

It depends how many times you were prepared to hit it to get the character you want. That turns it into an editing process, which is a form of authorship. Photographers will routinely take hundreds of pictures at a shoot, then select the best ones to use; their art is as much in the selection of images as in the capturing of them. When the composer Dvorak was asked how he composed such beautiful melodies, he replied that he thought of all the possible notes then discarded the ones he didn't like - again, an editing process (although he probably was being a little facetious).

Richard

[ren]

Greg > One of the questions that interests me is this: suppose you generated your CoH character by hitting the "random" button -- and you end up with a really cool-looking character that way. Are you an author now? Is hitting a random generation button the kind of "authorship" that society should protect?

Ye-know that’s just the sort of thing that I wonder about too. It gets to one of the hearts of IP law, this thing we call an Author and how the legal fiction is constructed by a given society at a give time. At present we seem to want Authors to be human. I’m not sure about US law on this matter, I don’t think that there are specific provisions for computer generated works, but in UK law there are cases that have taken this into account.

In Express Newspapers plc v Liverpool Daily Post & Echo plc [1985] 1 WLR 1089 one newspaper created a competition that used ‘random’ 5 letter sequences as with most of these things the commercial point was to incentives people to buy the news paper so that they could be part of the competition, then another one decided that it wanted to print some sequences (the winning one I assume). They contested that as the sequences were generated by computer and the computer was not a human then they did not constitute a work and did not enjoy copyright protection. It was ruled that there was indeed a human author – the person that was operating the computer – from memory the judgment is actually a little unclear as the programmer was also the operator which in the case made no difference but for our purposes it does.

The next step on I think takes us into to SF where we could suggest that a computer program was sufficiently autonomous that it could legitimately be seen as the author or at least a human operator has insufficient input for them to make that claim; if the program was one an AI one that had mutated to its current form even the coders may have a tenuous claim.

In the case of the random button the weight, in respect of this specific question and in the light of this case, I think would fall on the side of the creator of the program i.e. NCsoft. As with all things IP and character related I’m not sure that this position is for the best but I won’t bang on about it again.

[Ola Fosheim Grøstad]

But Ren, a five letter sequence cannot be seen as a work for the same reason that a sentence cannot count as a work. So why would they even consider it as a copyright case? For randomness, sure it can be a work, if Dali splatted some paint on a canvas and signed it, you bet. It is highly unlikely that somebody else would come up with the exact same figure without building on Dali's splat. Even a white canvas can be a work, why not?

Regarding trademark, you should get protection even without a registered trademark. It is just weaker, and tied to fraud. I.e. you are not allowed to cause authorship confusion. What if CoH had aimed for Superhero satire? I bet they would have escaped the whole issue then.

[ren]

Ola Fosheim Grøstad > But Ren, a five letter sequence cannot be seen as a work for the same reason that a sentence cannot count as a work. So why would they even consider it as a copyright case?

Well they did and I’m sure that the sequences were held to be a Work with an owner - it could have been the collection but I don’t think it was – anyone got the judgment to hand?

[ren]

To quote me (Hands off MY avatar ! Issues with claims of virtual property and identity - 2003), quoting the judgment:

“In this case a computer program was used to generate unique five letter sequences which were printed on 22 million cards as part of a competition called Millionaire of the Month. Council for the defence argued that as there was no human author copyright did not subsist – hence the defendant was free to publish the winning sequence is their newspaper. Ruling, Whitford J defined the role of the computer as instrumental, saying “The computer was no more than a tool” and rejected the defence argument stating “it would be to suggest that, if you write your work with a pen, it is the pen which is the author of the work rather than the person who drives the pen.””

[Ola Fosheim Grøstad]

Ah well, but then the judge didn't even consider the possibility of it being a work? And even if it was, couldn't they just have claimed that it was "news" and therefore not copy protected? (Different countries have their own peculiar implementations, so it is hard to use single cases for reasoning about these issues, but the ethics is still interesting on a more global scale, I think.)

I wonder, is CoH's avatar creation system protected as a pattern (patent)?

[ren]

Interestingly Marvel is fighting this stuff on the other side. The creator of The Hulk, Spider Man etc Stan Lee has just won a judgement entitling him to 10% of profits from them, well that’s my summary, see the news all over the place via google:

http://news.google.co.uk/news?q=stan+lee+marvel+robert+sweet&num=100&hl=en&lr=&sa=N&tab=nn&oi=newsr

[Sten Drescher]

The memorandum frightens me, because it seems to demonstrate a certain amount of lack of research on the part of NCSoft's attorneys. Perhaps it is standard legal practice, to force the other party to demonstrate every aspect of their claims, but the assertion that "none of the [copyright] registrations, on their face, are owned by either plaintiff" is flatly wrong. Zenith Publishing Corp, Canam Publishers Sales Corp, Leading Magazine Corp, and Cadence Industries Corp are all either former identities of or agents for Marvel.

[Tom]

I think the reason Marvel has gotten so riled up about this is because they are afraid people will say to themselves "hey, this game looks cool because I can play as wolverine on it so I'll buy it", and NCSoft will be making money off Marvels IP.

Not because:
"Players may misuse the characters, say things they shouldn't, act inappropriately, effectively erode some of the good will Marvel has built up in the characters."
-Alan

No one makes money off sketching spider-man on their school books or pretending to be him in their backyard.

[ren]

I do like that idea that Marvel must also believe that their ‘good will’ is also associated with the IP rights pertaining to the vast range of villains that they have created.

[RedWolf]

I've heard rumours that the reason Marvel are having a hissy fit over this is because they are planning a MMORPG of their own and NCSoft beat them to it.

Meanwhile, Marvel very recently lost a court case with Stan Lee, creator of their superhero characters, because they didn't want to pay him the 10% royalties quite clearly printed in his contract. The fact that they would be willing to go to court with a legend like Stan Lee shows just how greedy Marvel have become.

[Aegis]

Just so everyone is clear... Marvel and VU are NOT making a MMORPG anymore. The development was scrapped last fall, followed by this lovely lawsuit being brought by Marvel.
I think what this really comes from is the fact that NCSoft beat them to the punch. The plans for Marvel's ORPG was to have people play in the Marvel Universe where all of their characters exist, but not to actually play as one of their already existing characters.... so basically we "could look but not touch" as it were. Well honestly Cryptic has already grabbed the superhero market in this respect. The thoughtline would go.. " Why play my XZ character in the marvel universe when he already exists in the COH one where the only difference between the two is the addition of the marvel characters as NPC's in the Marvel Universe??"

It almost seems to me as if Marvel is trying to recoop their loses from their failed attempt at launching a MMORPG. I mean if they felt that their IP was being misused why did it take them this long to file a motion?? Wouldn't they have done this before COH had even launched considering the things that they are complaining about could be done all the way back into the Alpha/Beta testing??

[Char]

Now, I'm not a lawyer. Nor am I even legally inclined, but I am a gamer, and I think that the gamer's voice should be heard. I haven't purchased City of Heroes yet, but I'm planning on it at the end of the summer (if it's still on the shelves) but I am an avid comic book reader.

"No one makes money off sketching spider-man on their school books..." - Tom

You'd be surprised what kids can do these days. When I was still in highschool, if you had enough artistic talent you could make as much money as the kid selling drugs at the back of the school. =/ The thing is that kids don't care or know about TM/C laws, but they do care about their heroes, and they do know how to spend money.

When Marvel started (ending just before Stan Lee was no longer a part of the "Marvel team"), they cared about their fans. Now it is just about the money, they know that they have millions of teen boys and young adults in the palm of their hand, and for every one that boycotts, there will be another two that may be considered loyal.

On another note, I don't think Marvel should be blaming NCSoft for the lack of imagination that has become such a distinct trait of this generation. After all, the game is just a medium inwhich players can unleash the imaginative process. Is it the game developers fault that We have grown lazy in our imaginative processing?

Again, I am a gamer and a first year university student. I know nothing about the world of law and order, possibly everything I have brought up here is irrevelant. It is my opinion.

[Michael Gilbert]

Like the previous post, I'm not leaglly inclined, but I'm a gamer that reads comics. I've been playing CoH for almost a year. during that time, I've created at least 6 different characters, and each one has been a creation of my own. That is, I didn't choose my outfits or powers based on something I saw in a comic or a movie. What I can say is that in the time that I have spent in CoH, very rarely have I seen a toon (or character for the non-geek) that resembles a Hulk, Wolverine, or popular Marvel creation. I believe this is because the idea is to be your own superhero. While I'm sure that there is the 16 year old comic geek that is dying to be Captain American, the vast majority of the toons are all original. Now, if CoH released a powerset that included wall crawling, throwing glowing playing cards, or stretching yourself out, I'd say that they have a case. For that matter, what about the Incredibles? Pixar created a slew of superheroes that had similar powers, where's that lawsuit? I mean, the boy Dash could run really fast, isn't that the Flash? Even their names are similar! and the Mrs. Incredible (Elastigirl) could stretch herself out just like Mr. Fantastic. Is Marvel and DC getting royalties from this movie? What if Pixar used Dash in an afterschool special where he smoked Marijuana? Does that mean that DC should sue because he looks like the Flash, runs like the Flash, but the flash doesn't smoke weed?

Maybe I'm wrong, but I don't see where marvel is coming from here. They don't own the fact that someone has claws. They don't own people that are green. They don't own people that dress in purple and shoot arrows. I hope that I've at least made some sense, and I'll be following this story pretty closely.

[The Ogre]

"I think the reason Marvel has gotten so riled up about this is because they are afraid people will say to themselves "hey, this game looks cool because I can play as wolverine on it so I'll buy it", and NCSoft will be making money off Marvels IP."

Then what about pen and paper role playing games? You think no one has every bought Mutants and Masterminds to play the XMen? Or Silver Age Sentinels to play The Fantastic Four? There is nothing deliberately misleading about CoH in their advertising. They show all original characters, encourage YOU to make original characters and I believe, if I remember correctly, that in the user agreement policies you agree NOT to make any existing characters. You can't fault NCSoft for making such a robust character generator than people can make whatever they want out of it.

[LoneVacationer]

As I see it Marvel can't "claim" ownership of beings with super powers. However, they are not trying to claim any such thing in their lawsuit. City of heroes, full of guys with heat vision and super speed. Marvel in no way can say that by making an enhanced human in spandex you are infiringing on their copyrights.

However, some powers in city of heroes are definetly stolen. 3 metal claws coming out of a person's hand. If that doesn't immediately scream WOLVERINE (tm) than I don't know what would.

I believe Marvel has a legitimate case, but I do not thik it is wise of them to pursue legal action against them. City oh Heroes jsut lets fans who love comic book heroes play in a world as those heroes. Its just something marvel should see and smile about, knowing that people actually like their characters.

[Greg]

I think the outcome of this issue should depend on the details of the character creation in city of heroes. For example, if they allowed people to paint their own texture maps, they would hardly be responsible for someone making a spiderman texture. On the other hand, I don't think they should be able to provide a spiderman head, torso, arms and legs and web slinging abilities and say that people that put them all together are making their own creation.

[AlmightySasquatch]

Large companies have always walked all over their consumer base. They rely on their popularity, and their ability to influence the media to keep things like boycots out of the news.

Why attack their consumer base? It makes sense in the long term. Eliminate a competitor, and you'll generate bad press, and lose some business. Six months later no one remembers, but that competitor is still gone, and you've absorbed most of its consumers.

[Shalloo]

Okay Marvel is acting stupid again. I have a couple Marvel comic subsrciptions. I am a fan of the X-men. So are a lot of people. That is the problem here. The Marvel universe is populated with mutants of every size, power, and description. So the chances of someone making a character that unitentionally mimics a Marvel character are pretty good. Marvel wants a piece of the pie that is online gaming without having to pay any money for it. They are not losing any money. Nobody will cancel their subscriptions and follow the adventures of a Marvel rip off.

[fonter]

If you make a super-hero that is a shapeshifter, Marvel can't get you for copyright infringement, even though they have characters that are shapeshifters.

If you make a female shapeshifter named "Mystique" with dark skin then you are.

This comes down to a judgment call, something that lots of geeks don't like, because judgment involves interacting with people in suits and robes. You won't find a hard-and-fast rule for when it is and it isn't a violation, and if you nyah-nyah a judge with this fact, all you'll get is contempt.

Characters like "Icon," "Supreme," "Quantum," and "Hyperion" are obviously based on Superman, but they also serve as *commentaries* on Superman, so they are protected.

[Kirk Job-Sluder]

Bruce Woodcock: But despite their obvious similarties, they did develop distinct stories of their own, and this was not used to gain advantage in the marketplace. No one bought issues of Squadron Supreme instead of JLA saying, "Hey, these are the same characters, so why should I buy JLA?"

Well hrm. To start with, copyright these days is only marginally about gaining advantage in the marketplace. DC didn't need to show that Squadron Supreme affected JLA sales, only that significant similarities existed, and that Marvel profited from those similarities.

Which gets to my biggest complaint about the nature of copyright today. I've grown to accept the concept that Disney is probably going to have the exclusive right to peddle Steamboat Willie at the end of this century. However, we are now in a legal environment where mere similarity is sufficient to provoke legal action. At least part of Marvel's complaint is that a CoH iconic character looks similar to Captain America. Of course he looks similar to a dozen other patriotic character heros from a half-dozen other publishers as well.

A funny thing about the shift from copy to similarity is that IP law has been transformed into a plutocracy rather than an incentive for individual artists. Marvel can create Squadron Supreme as obvious parody, homage, or just downright plagarism of JLA not only because it is legally entitled to, but because it can afford a legal team necessary to defend that legal entitlement. I suspect that to some degree, there also exists a gentleman's agreement within the industry such that Astro City can riff on both Superman and the Fantastic Four. Even if users are creating their own Hulks, Wolverenes and Spidermen, there is a 50-odd year old tradition of homages, parodies, and similar characters.

But, copyright law these days is less about being right, but about getting a settlement. I found that out when local copy shops refused to photocopy the galleys of my book chapter. "Look," I said showing my driver's license. "I wrote this. My contract with the publisher permits me to hand out however many copies I wish." Eventually, we had to compromise in that I used their equipment and pressed all the buttons under their directions. That copyshop did go out of business under the weight of threatened lawsuits.

[Ian]

As for the character generator itself, all of the options they offer are 'generic' - i.e. there is no "wolverine" torso, although it can be mimicked with a tight spandex suit with a specific pattern and the yellow/black combination of colors. This, in addition to the rest of his suit, mutant origin, as well as claws and regeneration powers, effectively allows players to masquerade as Wolverine.

For pictures, look at the character walkthroughs here: http://www.cityofheroes.com/features/archetypes.html

The problem is that certain things draw too heavily from the original characters (the claws power is an example of this - I don't follow comics, but I can't think off the top of my head who else has three metal claws that extend from the knuckles). You do have to remember that someone, somewhere crafted these sections of models, and made them to look like their trademarked counterparts. But is that a serious violation in any way? (Like the no brown trucks thing that someone mentioned earler?)

Still, I don't know what kind of infringement a bunch of guys in a restricted environment who look kinda like Marvel characters could do to their IP rights. I think that's a distinction here, since the characters in the game are not public in any way (well, at least not those who are under the scrutiny of this case).

But then again I'm a far cry from any legal type of person, and have only been following this case loosely.

[Kirk Job-Sluder]

fronter: This comes down to a judgment call, something that lots of geeks don't like, because judgment involves interacting with people in suits and robes. You won't find a hard-and-fast rule for when it is and it isn't a violation, and if you nyah-nyah a judge with this fact, all you'll get is contempt.

My objection to the current state of this judgement call has less to do with interacting with people in suits and robes, but rather with my very well supported perception that what rights we have in regards to commentary, satire, parody, and fair use, might disappear because they are too expensive to defend.

In addition, I think what is at stake here is the idea of contributory infringement. I think that if we crack open that door on liability much further, then what we end up with is an environment where it becomes risky to create any social software that permits users to create and/or share information.

Characters like "Icon," "Supreme," "Quantum," and "Hyperion" are obviously based on Superman, but they also serve as *commentaries* on Superman, so they are protected.

Isn't that based on the assumption that the actions of a competing publisher are more worthwhile as *commentary* than my actions as someone doing performance of a character who is similar? (And I should add, without any commercial interest in said performance?)

[Snazel]

I am a big fan of City of Heroes, I'd like to see the game prosper, even more than it already has. It is a superb game.

Having said that, clearly some of the powers, and pieces of costumes in their character generator are derivative. Not just generic powers, attributed to many super heroes, but very specific iconic images and powers, attributed to very specific and higly recognizable characters.

You cannot deny that Wolverine's claws, beard and trademark stogie are all easily accessed in the character generator. You'd be lying to yourself, if you did not admit the first time you saw those options in the character generator, you did not think of Wolverine as the origin.

My goodness even the sound effects are the same.

It seems to me, that when you augment your brand/company/product with something derived directly and undeniably copied from someone else's property, you violate copyright law.

If one of the options in the character generator would be a bright yellow rounded triangle with a red S on it, or wearing a magic ring with Green Lantern's specific symbology on it, DC would be knocking on CoH's door as well.

Seems to me, there's also makeup options in CoH, that look remarkably like the makeup of KISS. Gene Simmons has sued over this kind of thing before and won, I wonder how long before we KISS Ltd, try and get a piece of NCSOFT's cash cow? :)

[RoguePencil]

I have no legal training, but I am an avid comic book fan who played City of Heroes from the day it came out until the day World of Warcraft came out. Putting aside any legal issues, I would never deliberately create a copy of an existing character. It's one thing to play Batman in a game about Batman, where Batman is the only choice of character, but I think people who copy characters in a game with this many choices are missing the point. The idea is to build on what has gone before. The big boys -- Superman, Spider-Man, and so on -- are there for inspiration.

I couldn't copy them in City of Heroes, because, in my mind, they were already out there in Paragon City, not because they'd been copied by someone else, but because they were as fundamental a part of things as gravity. Superman is like a colossus straddling the world. I'm not worthy to play him if there's another option. It would be blasphemy.

But how much inspiration can you take from something without it being called a copy? Infringement depends on just how much similarity you're willing to allow between the trademarked item and the new one. To illustrate, I've got two URLs below. Both are images, compilations of screenshots I captured in City of Heroes. I didn't doctor these up to change their look, just cut out wasted space and added character names.

http://premium1.uploadit.org/RoguePencil/infringecoh.jpg
This first image shows six obvious copies of existing characters, all seen by me in the game: The H_U_L_K, The T_H_I_N_G, Human-Fire, Iron-Man, Humann Spiderr, and Kent. This is by no means an exhaustive list of unoriginal characters. I saw four or five blatant ripoffs of Wolverine, as well as a couple of Green Lanterns, and at least a dozen different Hulks -- Controlled Hulk, Hulk II, Hulktoo, Raging Hulk, TheTheHulk, and so on. A friend of mine who played had a character named Nightcravvler, who looked just like Mr. Wagner, and another friend had a Ghost Rider (although the flaming skull was impossible to do, so it did not look much like him). I assume the problem is just as bad on the other servers. I can see why Marvel might be upset.

http://premium1.uploadit.org/RoguePencil/charsminecomp.jpg
The second image shows the eight characters I played, and demonstrates (I hope) the diversity of the character creation system. This diversity is exactly what's necessary to create the comic book character you want to play in the game, but it's the same flexibilty that allows such flagrant abuse by other players. I think my designs also show some of the gray area around what exactly defines infringement.
Broadsyde: He has a metal right arm. So do many existing characters. Is this infringement? How much like, say, Cyborg's arm would it have to look before it would cause complaint?
Cold Steel Kid: This design seems pretty original to me, but then, the high-tech armor costume has been done so many times, the Kid almost certainly looks like a trademarked character.
Penndragon: supposed to be King Arthur, who is in the public domain...at least, he better be.
Deuce Wyld: Here I tried to stay loyal to Silver Age costume concepts yet create an original design at the same time. Deuce looks like any number of heroes who wear spandex and large, folded gloves and boots. The little eye-mask has also been done to death. He's the same, but different. Who can sue?
Sszarno: He is supposed to be a derelict fire god. He's a flame-based character with spiky orange hair and glowing eyes, so he looks a bit like Firestorm. Can this provoke a suit from DC?
Johnny Impact: another vaguely Silver Age design. Out of all the concepts I brewed up with the CoH creation system (and there were many, many more than you see here), this was, by far, the one I liked the best. He was inspired by Iron Man, Captain America, and a few other old-school characters. I like to think of him as an homage to the greats. But is it an homage, or a courtroom battle?
Cool Whip: What better name for a character who combines ice powers and super speed? Superficially, he looks like the Flash, only blue/white instead of red/yellow. Does a palette shift count as sufficient difference?
The Gentleman Ghost: As far as I know, nobody's ever mixed the desperado look -- kerchief over the face and a large hat -- with a suit. I could be wrong.

My opinion, for whatever it's worth, is that it's the people using the system to create clones of trademarked characters who deserve the slap. I think the memorandum has it right: you cannot fault the makers of a tool when that tool is deliberately misused. When someone uses a gun to murder someone else, who do we lock up, the murderer, or the crew working at the gun factory at the time that particular gun was made? I don't believe Cryptic should be held at fault for what's happened.

On the other hand, they didn't appear to be doing much about the problem when I was playing. It wouldn't be too difficult to root out characters who violate trademarks and simply delete them off the servers. Relevant accounts could then be cancelled or flagged with a warning, so the players can't simply go right back in and recreate the deleted clones. With the system Cryptic created, it had to expect that, sooner or later, someone would get upset and sue. It seems to me that, for much less than the cost of fighting Marvel, they could police their own servers, but what I'm really wondering is why this isn't already done.

[Jimmy O'Brien]

In the attempt to develop a robust superhero creating engine, if powers associated with previous superheroes were scratched off the list what would we have left? Looking at three popular heroes, we're already seeing not very much...

Superman:
flight, super strength, heat vision, cold breath, super speed, x-ray vision, powers from the sun, alien origin

Wolverine:
Regenerative capabilities, claws, super-hard skeleton, berserker qualities

Phoenix:
Fire powers, psychic abilities, dual personalities

[Drive]

I look at it like this. If said people playing copyrighter superheroes were selling their accounts, then Marvel would have a a valid claim. But to sue their customers, their FANS... Well that's just silly.

This is like sueing a little boy because he drew Wolverine in his note book. These kids are playing their favorite super heroes and not hurting anyone by doing so. So what's the problem? I mean I don't see DC in an uproar as I have seen some obvious DC characters.

I don't see how this is hurting Marvel in the slightest. If anything this is making comics more popular. I mean I made me a Savage Dragon character because I thought he looked cool to play in the game. Is Erik Larsen beating down my door? No.

If Marvel wins, all it will do is hurt the MMO industry in the future as it will limit the creativity of designers, as it will put the fear of the lawsuit gods in them. CoH is unique because we get to play out our childhood fantasies. Just say no to Marvel stifiling your imagination...

[magicback]

This whole thing is mostly commercial politicking, broadening or defending the legal “territory” of each company. There are plenty of ruling that doesn’t make sense, but are still enforced. Kirk’s objections above are the things that we should think about more.

I recall the days when there were Apricot clones of Apple computers that were physically and operationally similar and Orange clones of Apple computers that were operationally similar, but physically different. There was international law/jurisdiction and trade complications, but one key factor in the fight was the ability to demonstrate and prove damages caused and putting a dollar figure on paper.

What dollar figure would you put on paper?

[Bruce Woodcock]

>This is like sueing a little boy because he drew
>Wolverine in his note book. These kids are
>playing their favorite super heroes and not
>hurting anyone by doing so. So what's the
>problem?

That's because it's just a notebook, very few people see notebooks, and little boys are known to draw on them. Just as little boys can dress up and play pretend.

But suppose, instead of Mead selling notebooks, they rented billboards. And every billboard they rent was specifically meant for someone to draw a superhero on. And some of the people who bought one put up artwork that looked like some Marvel superhero. And some of those superheros might not be doing things Marvel wants their characters to be seen doing. Surely Marvel would have a case against Mead for not stopping those billboard buyers?

Of course, billboards are pretty static, so the amount of "damage" a billboard could do to an IP is not so great. But video games are far more than mere billboards, because they are interactive.

There are other analogies, of course. Sure, you can draw Spider-Man on your notebook. But suppose this notebook could then magically create thousands of exact copies of that notebook. And you don't sell them, but you give them away to all the kids. How is Marvel supposed to sell their notebooks with Spider-Man on them if others can get them for free? The notebook maker in this analogy isn't just making money selling notebooks, it's making money specifically selling notebooks for people to put super-heroes on and copy them so everyone else can see.

Bruce

[Tom]

> What dollar figure would you put on paper? - magicback
The projected profits that Marvel would have made from their own MMORPG.

As someone has said earlier, Marvel had their own plans for an MMORPG which they cancelled, and then proceeded with this action against NCSoft.

Now this, along with the fact that they didn't immediately jump into a lawsuite at CoH's release, indicates to me (purely speculation mind you) that part of Marvel's market research found "Why play as generic XZ character in the Marvel Universe and get wave at Wolvernine, when I can already play as Wolverine in CoH". And if this was the case, here we have NCSoft profitting from Marvel's IP.

[Justin Bacon]

Here's why NCSoft is probably going to lose this case: Not because they designed a character generator which allows people to duplicate characters which belong to Marvel. If people were just making up Marvel look-a-likes and playing them at home, Marvel wouldn't have a leg to stand on.

But NCSoft is exposed because City of Heroes is an online game. People aren't just doodling pictures of Spider-man in their notebooks; they're xeroxing their notebooks, sending them to NCSoft, and then NCSoft is DISTRIBUTING IT TO MORE THAN A HUNDRED THOUSAND PEOPLE.

By way of analogy: A company selling bristol board that somebody draws an unlicensed Spider-Man story on is not liable for anything. But if that same company says, "Once you're done drawing on that bristol board, we'll publish it and distribute it to a 100,000+ paying subscribers." Then the company is in trouble. Even if the company can honestly say, "We never even looked at what was on that bristol board, your honor."

And if Marvel can make that stick, then this is a problem that all of the massive on-line games are going to have to take a serious look at. How many Conans are wandering through the woods of Everquest, Ultima Online, and the like?

[Tom S]

The way I see it is that Marvel copywrighted the character "wolverine", not the power "claws", they cant make NCsoft change that power because its not theirs.

Now if someone made a look-a-like character of "Wolverine" thats a different story, but in that case its not NCsofts fault, all they did was put together a whole lot of un-copywrighted ideas and let the gamers do what they want with them.

What do you guys think?

[Tom S]

I don’t think Marvel could touch NCsoft. Please correct me if I’m mistaken but the program "Kazaa" for PC is a huge Copyright infringement cesspool. For those of you who aren’t familiar with "Kazaa", its a program which allows thousands of people to download software directly from each others computers weather it's music, games, pictures or anything else.

Now the music industry is packing a huge spaz because people are getting music for free by downloading it from other people. The reason the music industry hasn’t sued "Kazaa" and all other programs like it, is because "Kazaa" can say they invented the software for other purposes (like downloading each others homework or something) and that its the individuals that use the program are at fault.

NCsoft can just say that they meant for people to make original characters and that it’s the gamers that are at fault.

[Sirius]

Just a short comment of my own:

It seems to me that suing NCSoft for people using their generation tools to copy known superheros seems an awful lot like suing a pencil manufacturer because their customers used their pencils to draw a picture of Wolverine.

Surely there should be some individual accountability in this?

[Marand]

A few points:

1. The claws in City of Heroes do not actually extend from the hands themselves. For anyone playing, look closer: they are connected to a box shape that is attached. Similar weapons have existed historically, and in this case the only reason they appear like they do is the game has no mechanism to display the claw base permanently.

2. Trademark and copyright violation by the players is a violtion of the EULA (End User Licence Agreement) that is enforced by NCSoft and Cryptic. However, it is not a simple process to actively filter through every character in the game. Some names are easy to find via automatic filters, but others are not. Likewise, while it's easy to find the infringing characters just by looking at them, it's not nearly as easy to be in all places at all times. Unless they get reported by players, many of the duplicates miss notice. That doesn't mean that the companies behind City of Heroes aren't enforcing it, it means that they aren't omniscient. This is similar to saying that, because people can smoke marijuana without getting caught, it means that the police force in the area is actively allowing the use of illegal drugs, and not only that, but the police all light up in their spare time, too.

3. A daycare was threatened with legal action by Disney over something similar. If I remember correctly, it had Disney characters painted on the inside walls, and while it wasn't doing any harm that I know of to Disney (unless Disney has a national chain of daycares that I've not been told of), there was a legal problem. The difference is that NCSoft and Cryptic aren't the creators of these characters, the players are. I suppose if Marvel chose to file lawsuits against their fans for recreating their characters they would win, though it would seem to be a bit counterproductive, I think.

4. Marvel's property, I believe, is the exact combination of abilities, personality, and physical characteristics that make up their characters. Claw-type weapons have existed before, as have bad attitudes, facial hair, and the word' bub.' In fact, I believe even Canadians may have existed well before Marvel made a character from Canada, though this is unproven at this time ;) Unless there is an extreme likeness, Marvel should have no basis to work from (though with US law as it is, this doesn't mean much). Otherwise, with Marvel's existing line of heroes and villains, every possible ability that could be used as a superpower will be off limits.

If this lawsuit succeeds, expect these and more:
God vs. Marvel over the use of the word "wolverine" and claws as weapons (animals have been using them for thousands of years).
Marvel vs. bodybuilders: Hulk has bulging muscles, bodybuilders have bulging muscles. Figure it out.
Marvel vs. the USA: Politics over the past few years have tarnished the "America" in "Captain America." Marvel seeks recompense.
God vs. Marvel (again): This time, for the use of wings. Angels clearly have precedence on this.

Rumour has it that other parties are preparing lawsuits, should the Marvel vs. NCSoft/Cryptic case pan out. Some interested parties are as follows: Norse gods (Thor and Loki are outraged at the use of their names), various members of the medical field (why is it "Doctor " seems to always be a villain? Doctors are offended by this), and Webster (look at how many Marvel heroes can be found in the dictionary). It has also been whispered by those 'in the know' that Shaft is planning a lawsuit, as well. Too many Marvel heroes have attitudes, and nobody else is allowed to be one bad mother . . .