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...
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 email@example.com.
Looks like the hearing on the motion is scheduled for February 7th.