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 firstname.lastname@example.org.
Looks like the hearing on the motion is scheduled for February 7th.
Comments on Marvel & NCSoft Update:
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?
Posted Jan 19, 2005 2:50:59 AM | link
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."
Posted Jan 19, 2005 4:07:30 AM | link
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?
Posted Jan 19, 2005 5:28:47 AM | link
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.
Posted Jan 19, 2005 7:01:09 AM | link
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.
Posted Jan 19, 2005 8:57:57 AM | link
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?
Posted Jan 19, 2005 9:21:00 AM | link
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.
Posted Jan 19, 2005 12:51:02 PM | link
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)...
Posted Jan 19, 2005 2:22:57 PM | link
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.
Posted Jan 19, 2005 2:24:02 PM | link
*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.
Posted Jan 19, 2005 2:55:27 PM | link
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.
Posted Jan 19, 2005 5:35:44 PM | link
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?
Posted Jan 19, 2005 8:09:50 PM | link
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.
Posted Jan 19, 2005 10:35:24 PM | link
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.
Posted Jan 19, 2005 10:38:19 PM | link
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?
Posted Jan 20, 2005 2:04:24 AM | link
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).
Posted Jan 20, 2005 3:56:23 AM | link
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  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.
Posted Jan 20, 2005 4:11:09 AM | link
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.
Posted Jan 20, 2005 5:38:46 AM | link
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?
Posted Jan 20, 2005 5:59:11 AM | link
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.””
Posted Jan 20, 2005 6:05:52 AM | link
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)?
Posted Jan 20, 2005 6:29:37 AM | link
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:
Posted Jan 20, 2005 6:52:53 AM | link
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.
Posted Jan 20, 2005 5:58:14 PM | link
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.
"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."
No one makes money off sketching spider-man on their school books or pretending to be him in their backyard.
Posted Jan 21, 2005 6:23:35 AM | link
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.
Posted Jan 21, 2005 6:54:44 AM | link
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.
Posted Jan 21, 2005 7:51:03 AM | link
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??
Posted Jan 21, 2005 8:36:00 AM | link
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.
Posted Jan 21, 2005 9:29:21 AM | link
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.
Posted Jan 21, 2005 12:13:19 PM | link
"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.
Posted Jan 21, 2005 12:31:21 PM | link
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.
Posted Jan 21, 2005 2:04:17 PM | link
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.
Posted Jan 21, 2005 4:30:41 PM | link
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.
Posted Jan 21, 2005 4:43:56 PM | link
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.
Posted Jan 21, 2005 5:34:33 PM | link
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.
Posted Jan 21, 2005 6:42:22 PM | link
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.
Posted Jan 21, 2005 6:46:10 PM | link
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.
Posted Jan 21, 2005 7:06:55 PM | link
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?)
Posted Jan 21, 2005 7:07:16 PM | link
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? :)
Posted Jan 21, 2005 7:19:19 PM | link
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.
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.
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.
Posted Jan 21, 2005 8:38:51 PM | link
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...
flight, super strength, heat vision, cold breath, super speed, x-ray vision, powers from the sun, alien origin
Regenerative capabilities, claws, super-hard skeleton, berserker qualities
Fire powers, psychic abilities, dual personalities
Posted Jan 21, 2005 9:09:23 PM | link
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...
Posted Jan 21, 2005 9:13:44 PM | link
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?
Posted Jan 21, 2005 10:55:08 PM | link
>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
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.
Posted Jan 22, 2005 12:24:42 AM | link
> 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.
Posted Jan 22, 2005 12:31:56 AM | link
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?
Posted Jan 22, 2005 2:10:07 AM | link
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?
Posted Jan 22, 2005 2:18:21 AM | link
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.
Posted Jan 22, 2005 2:38:51 AM | link
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?
Posted Jan 22, 2005 3:32:30 AM | link
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 . . .
Posted Jan 22, 2005 3:34:47 AM | link
While I think about it, where was the lawsuit against Freedom Force? It was supremely easy to make a Marvel superhero within Freedom Force, and distribute on their website for all the world and his wife to download at their leisure. And doesn't Minuteman pose as much of a resemblance to Captain America as Statesman?
I agree with the earlier comment that it seems that the only reason Marvel are going ahead with this lawsuit is it's possible profitability, and the fact that their own attempt at a similar game was canned.
Posted Jan 22, 2005 4:31:41 AM | link
Sirius: Do some research, Marvel threw its legal weight around over Freedom Force, too. It aimed at sites and players that created its characters, though, not the developer. DC actually got in on this one as well, I believe.
Marvel has also threatened action against people for player-made Sims content for the same thing.
Interesting how in all other instances, they go after the fans, but this time they're trying something different.
Posted Jan 22, 2005 4:49:29 AM | link
NCSoft are charging for access to the player-created content and have taken on editorial responsibility, that makes a major difference compared to other cases mentioned in this thread IMO. At least in the ethical sense.
Posted Jan 22, 2005 7:38:50 AM | link
And claiming that moderation is too difficult to manage is not entirely right. All you need is to collect complaints and have a screening tool which displays the reported characters on a webpage or similar. If you can do this for bugs then you can do this for IP violations too.
Posted Jan 22, 2005 7:50:26 AM | link
Little kids playing in their backyard as hulk or heman or power rangers arent violating any copyrights or trademarks they're just playing. But a company providing people a service where they can play as the hulk or the thing or spider man just might be. They are gaining money from peoples desire to be their favourite super heros. But does this still apply if they explicitly told gamers not to play pre-existing characters or ones that infringe on copyrights and trademarks? Should NCsoft be made responsible for the actions of players in their game? Especially if they made it clear that players should not infringe on copyrights or trademarks?
I hope not.
It would seem that NCsoft made it possible for people to play as a character from a Marvel comic or any other superhero for that matter. But to be honest if they did not then what would be the point in playing? No mutants, no aliens, no costumes, no powers. The mistake they have made is to let people get away with creating the characters that infringe on copyrights and/or trademarks. Someone earlier mentioned that NCsoft told users not to make pre-existing characters. Whether this is true or not NCsoft, in light of recent events, should have made a better effort to police these infringements. No matter how hard it is, if they don't want to be sued then they should have either done this or not made it possible to play as the Hulk.
But I'm not even sure if they did make it clear to players not to make pre-existing characters, especially since they havent been policing the infringements. To be honest if they lose the case I feel they only have themselves to blame, for making such things possible without thinking of the ramifications of their actions.
Posted Jan 22, 2005 10:06:26 AM | link
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.
Posted Jan 22, 2005 10:13:57 AM | link
A lot of the comments about the characters just being user-created avatars that have nothing to do with NCSoft miss the boat. NCSoft made the character creation program. The only reason that I can create a character that is huge, bare-chested, green-skinned, barefoot and has ripped purple pants is because NCSoft gives me that option through their character creation program. The reason that I can name that character "TheHulk" is because the name filter doesn't reject it. The reason that my green skinned, purple pants wearing, barefoot behemoth uses the same moves that you see The Hulk using in comics and movies is because NCSoft programmers animated it that way. There's no reason science tankers have to use foot stomps and hand claps and pound the ground like The Hulk (when I played COH literally first PC I saw was exactly the chracter I just described, down to the name, "TheHulk").
Marvel's argument isn't that they have trademarked or copyrighted "super strength" or "claws" or "ripped pants" or even "shockwave-inducing hand claps and foot stomps" so that no one else in the universe can dare dream of these things. Nor do they claim that they are the only ones entitled to make games about superheroes where people can jump and fly and pick up cars and run fast and shoot eye beams.
They are arguing that NCSoft's program shouldn't allow customization to the degree that it allows for some near-exact copies of some very recognizable Marvel properties. There are hundreds if not thousands of possible combinations, and it's certainly not impossible for NCSoft to have come up with a creation program that doesn't even allow me to make a Hulk or Wolverine clone. It's not like I can make my Everquest character look like Daredevil or run around as The Thing in World of Warcraft. Obviously those aren't superhero games, but the point is that a character creation program doesn't have to allow players the opportunity to create duplicates of other people's protected characters.
Despite the rhetoric, it's not the same as suing crayon makers because kids are drawing superheroes in art class or suing the manufacturers of red towels because a towel also serves as a makeshift Superman cape. Nor is a EULA that says, "be original, winners don't use drugs nor infringe intellectual property" an ironclad shield against liability. The Everquest EULA tells me that I can't use copyrighted or trademarked names or characters too, but the game actually *prevents* me from making a character named "Xena" that looks exactly like a certain warrior princess.
Posted Jan 22, 2005 1:02:02 PM | link
Horus> Should NCsoft be made responsible for the actions of players in their game? Especially if they made it clear that players should not infringe on copyrights or trademarks?
Well, my take on this is: yes, they do take on themselves this responsibility exactly because they do tell players what to do and make some effort in that direction. In other words, if they claim to be editors then they are responsible for the content too. NCSoft basically have to decide what foot to stand on, but I think it is very difficult to claim that you aren't responsible for the content in these controlled game designs. It isn't exactly a free-for-all virtual sandbox; they provide more than the means to communicate.
Right now they seem to claim that players are not infringing, but they have told players not to infringe... How consistent is that?
Posted Jan 22, 2005 1:13:20 PM | link
"And claiming that moderation is too difficult to manage is not entirely right. All you need is to collect complaints and have a screening tool which displays the reported characters on a webpage or similar. If you can do this for bugs then you can do this for IP violations too."
The problem is that this is entirely dependent on the playerbase. A thousand people can hit a bug, but only five may actually report it. Likewise, as many or more may see an IP-violating character, but none actually bother to report it as a problem.
After all, the majority of players are paying to play a game, not to spend time filling out reports to customer service over things like that. The way it can be looked at is simple: the less it affects or offends the player directly, the less likely it will be reported. Some people do still report these problems, but most just shrug it off with a remark about the other person being an unoriginal moron.
The news that Marvel is suing Cryptic and NCSoft increased player policing drastically, as players' awareness of the seriousness of IP violations in the corporate world increased, but how long will that last?
And furthermore, what about players crying 'wolf'? Some people will report others over anything, even the most trivial, coincidental likenesses. Even under the ridiculous assumption that all players are diligently reporting IP violations, one still has to sort through all the superfluous ones.
Posted Jan 22, 2005 6:14:54 PM | link
Since I forgot to say it before, I'm going to add that I'm not saying that Marvel has no case, because I think it does. However, I think it's misdirected. Any game that has sufficient freedom of customisation can allow players to create likenesses of existing, trademarked characters.
The real problem, I believe, are the people choosing to abuse their freedom. Just because you _can_ recreate existing Marvel characters doesn't mean you _should_, and the ones abusing their freedom of creation are the ones that should be targeted. NCSoft has the account information of the players, and Marvel could most likely get names and addresses to go with all the "TheHulk1234" characters to pursue legal action against the players.
It's just not going to be a very profitable endeavour then, so what's the point?
Posted Jan 22, 2005 6:22:30 PM | link
I can understand the reasoning behind Marvel being flustered but it looks a lot more to me like they're embarrassed by getting beat to market and trying to squeeze some money out of it anyway. I'll certainly not deny that some of the characters can obviously be made to look or even function much in the same way as the original characters but let's cut the crap... The average super hero isn't really that original appearancewise anyway. Most wear a mask (how many masks do you honestly expect there to be?) and have some kinda symbol representing them on their uniform. Bravo... So the Super Character formula is "Let's play dress up and hide our identity somewhat!" Big deal. I can certainly respect defending your intellectual property when it's original and the stories behind the character are certainly just that but the appearance? Give me a friggin break.
As a point of reference of the kid saying it's much like a kid drawing a picture of the superhero on his notebook being the same thing and it being disputed... I would say it's much more like the kid dressing up on halloween as their favorite super character and going trick or treating. Marvel (or any other company for that matter) certainly isn't beating down doors of kids who try to be like their characters and not all costumes are made in a manner that would warrant royalties... So here you got hundreds, thousands, possibly even tens of thousands of kids running around on halloween imitating your intellectual property and you aren't lifting a finger? Why not sue the makers of red fabric since obviously it can easily be used to create Superman capes or perhaps go after the producers of spandex (which judging by the avg person who actually wears spandex this might be a good idea...) and sue them for selling stuff that could be made into a costume similar to your super hero IP.
Spare me, I've went and seen many of the movies based upon comic books. Especially in the relatively recent few years but at this point screw you Marvel. I ain't putting another dime towards your pos company. Most of them sucked and drained money away from me that woulda probably been better used elsewhere anyway. I now regret all the money you received from me when I was a child. Regardless of how much work creating the story was you quite obviously don't deserve it. I feel like all my money was sent to the corporate version of Bin Laden all those years. Piss off.
Posted Jan 22, 2005 8:02:48 PM | link
The only reason that I can create a character that is huge, bare-chested, green-skinned, barefoot and has ripped purple pants is because NCSoft gives me that option through their character creation program. The reason that I can name that character "TheHulk" is because the name filter doesn't reject it. The reason that my green skinned, purple pants wearing, barefoot behemoth uses the same moves that you see The Hulk using in comics and movies is because NCSoft programmers animated it that way.
I agree at some level but should they have ommited huge stature from their game? Or Green skin? or ripped clothes? or the colour purple? I think even if they had made it harder to create copycat characters people would still have tried like that guy in the above posted pictures who has a bug on his chest instead of a spider. In relation to picking the Hulks trademark moves, does Marvel have a monopoly on slapping the ground in an angry way? And I think it wouldve been fairly pointless to try and filter out names, since there's any number of combinations of hulc hullk, hulkk, H-U-L-K, etc etc that cant be picked up and most names of superheros are just words from the dictionary anyway like super and man, try filtering those out.
But in the end I do agree with you, there are lengths they could have gone to to prevent players from these infringements and in the end, as I said earlier, they only have themselves to blame.
Posted Jan 22, 2005 9:08:33 PM | link
Well, for one, a copyright suit is going to have to show two things. The first is a distinct similarity, purposefully done.
That is possible to show here, but would be hard to blame on NCSoft. After all, the individual person is the one choosing to assemble the character.
The second is that the "mimic" is harmful to Marvel's sales, image, or some aspect of the company.
This is nearly impossible to prove as NCSoft's fault! If Marvel HAD released an MMORPG, and its sales had suffered, they would have a case. A pretty strong one.
But proving that you had to shut down a work because of someone else's is going to be very difficult. There is no way to prove that CoH meant Marvel's game could not succeed.
Additionally, the fault lies with the players of CoH for any defamation issues (like the "weed" example). Not NCSoft.
NCSoft can't police everyone on their game for morality or copy...it is an impossible task. No rational person could expect it from them.
This suit smacks of the one that was in fact levelled at file-sharing companies. The company itself holds no responsibility for users downloading copyrighted materials. This is why the RIAA is hitting people. They can't touch Kazaa or Bearshare.
Similarly, I do not think that Marvel should be able to touch NCSoft, who has merely created a device that allows for diverse creation. NCSoft did not create a system for the purpose of mimicking Marvel characters, as is clearly shown in their marketing of the game and diverse system. They are not at fault.
Posted Jan 23, 2005 1:23:19 PM | link
Hold on a minute, NCSoft claims that Marvel is trying the "unprecendented step" of appropriating the entire world of fantasy characters?
But based on NCSoft's actual and unpublished real legal position regarding the player characters...that is EXACTLY what NCSoft is attempting to do! It is NCSoft that is attempting to appropriate the entire world of fantasy characters by stating that THEY own EVERY SINGLE CHARACTER used in City of Heroes, and yes folks that includes all the player characters. And right at this moment they are actively negotiating with YOUR Intellectual Property rights as if they are theirs to profit from. In short, NCSoft has gotten YOU the player to PAY THEM for the privledge of working for the greatest sweat-shop in history!
So Marvel is the bad guy here? No, they just woke up to the greatest theft of Intellectual Property attempted in some time. Even the EFF has started to clue in to what is really going on here, as the feedback to them and to Marvel is showing both of them that other "3rd Parties" are waking up to this outright Theft of THEIR Intellectual Property BY NCSoft.
It's about time players finally started confronting NCSoft over this continued manipulation of the facts and started to become aware just who the villian in this affair really is. It's easy to paint Marvel as the villian, but to use an analogy hasn't even Magneto fought and won for the good guys at times as well?
Now I can hear the arguement, "well Cryptic and NCSoft own the tools that make the character". That's true, but NCSoft has/is taking the position that they own the character itself lock stock and barrel and can do anything they want with it, and that includes exploiting it for profit, and banning anyone else from ever using it. Now who's on the wrong side of the "Number 2 pencil" arguement?
With the list now at over 2 MILLION charaters, what are the odds any new comic creation will bump into that and have to pay a "NCSoft-tax" or just scrap the idea entirely? The future of electronic Intellectual Property, and the PLAYER's rights are what is at stake here. And like it or not Marvel is the only one currently fighting for that, NCSoft sure as hell isn't the player's friend in this case.
I want to see NCSoft explain in court why they assign Liability to the players, yet none of the Ownership rights. That's like having your cake and eating it too is it not?
Posted Jan 23, 2005 1:47:11 PM | link
GlennJ> NCSoft can't police everyone on their game for morality or copy...it is an impossible task. No rational person could expect it from them.
Well, actually, if free web-services can actively moderate user-uploaded content, then they can too... You just go over 200 avatars at a time, clicking on those that look like well-known characters. You can easily do 1000 avatars per hour, all you need is a simple tool.
Besides, if it is true that they are contributing to IP infringements, then they either have to stop it, buy a license or shut down the entire system. You can't say "I have to break the law, coz that makes me rich". Sorry.
Posted Jan 23, 2005 3:00:25 PM | link
GlennJ> NCSoft can't police everyone on their game for morality or copy...it is an impossible task. No rational person could expect it from them.
What about There? They seem to have established precedent for the workability, at a certain volume, of validating uploaded content into a 3D VW.
Posted Jan 23, 2005 3:39:09 PM | link
The dictionary defination of a Hulk is a bulky clumsy person. The only thing marvel did was to add the color green and demand that to be their IP? Huh? If today i create a comic character of my own. Big. bulky. clumsy. and Purple. And I call it the hulk. But the backstory of my character would be he turns into this big huge purple monster whenever its full moon. Would it still mean that I'm infringing on Marvels IP?
How do you suppose NCsoft can actually prevent people from these infringements? by stopping all forms of customization in mmorpgs?
Lets say a new multiplayer racing game appears on the market and limits the customisation to only allows users to design their team mascot/logo and the team name (seems fair so far). But what if some kid happen to draw 3 black circles and calls the team, "team disney" who would be liable?
Lets face it, the icons created for Marvel universe are, well fairly generic. most of em are modelled after human beings in different colored spandex suits. The silver surfer is a silver colored being that travels on a surfboard. The Hulk is, a green hulk. The human torch is a human torch. The beast is a beast. Super beings that belongs to the good faction are known as Superheroes and the villains are known as super villains. Its not like NCSoft is going out if its way to infringe on Marvels intellectual property but rather isnt it alot harder for them not to?
Sure, you may be able to create the exact same character but the story line is different, the universe set for the characters of both games are different, nobody is being fooled or deluded into thinking City of Heroes is game set within the confines of the Marvel Universe.
NCsoft has even gone to the extent of warning its users against possible copyright infringement.
So then why is there a problem?
Posted Jan 23, 2005 6:32:46 PM | link
myron> Would it still mean that I'm infringing on Marvels IP?
A purple Hulk howling at the full moon would at worst be satire.
myron> How do you suppose NCsoft can actually prevent people from these infringements? by stopping all forms of customization in mmorpgs?
Marvels claim seems to be that NCSoft are acting as if enabling the creation of avatars that are close to popular comic book characters is a commercial advantage for them. And they are probably right too...
How do newspapers prevent illegal adverisments in their classified advertisment section? Editing.
myron> NCsoft has even gone to the extent of warning its users against possible copyright infringement.
What difference does this make? It's like renting out your flat to hookers and telling them that organized prostitution is illegal, but not minding taking money earned from having sex. You may still be held responsible if you should have known that the practice you warned against actually was enabled by the environment you provided... (i.e. you might be charged for being a pimp)
Posted Jan 23, 2005 6:51:54 PM | link
Regardless of legalities, Marvel are being dicks about this.
Put it in perspective: Are NCSoft encouraging the replication of copywrited characters, advertising their game by displaying said replicas, and running story-arcs lifted from comics featuring those characters? No. The worst case is that against NCSoft's specific instruction, a few over-enthusiastic gamers might make characters that resemble members of the Marvel stable. This is not a doomsday scenario. It doesn't even happen very often. The actual cost to Marvel of allowing it to continue, perhaps with a nominal fee from NCSoft to cover 'trademark defence' requirements? Negligable. Heck, CoH is free advertising for comic books in general.
On the other hand, what are the ramifications of a verdict in Marvel's favour? Nobody gets to make a superhero game except Marvel. Then, when all the other publishers make a fuss too, we are left in a situation where it is legally impossible for anyone to make a game where you play a superhero you design yourself (except perhaps a quango of all the major comic book publishers). And do you really think the 250,000 people playing their level 30 CoH characters are going to be so pleased with Marvel's legal team when the game is shut down that they'll buy and play an 'official' product?
This isn't a brand of soap-powder we're discussing. It's comic books, superheroes - it's *cool*. Superheroes aren't supposed to be petty bureaucrats. Did Robin ever dash to the Bat-Fax to serve a restraining order?
I might go so far as to say that superhero comic books are inspirational: parables for the modern child. We're *supposed* to want to be like them; that's the whole point! I'd be a more worried Marvel CEO if *nobody* wanted to emulate my company's IP.
Super-heroism is all about fighting for what you believe in. I think Marvel's execs should remember who their customers are, learn from their own publications, and make their own official product to compete.
Posted Jan 24, 2005 4:04:09 AM | link
It amazes me how much NCSoft continues to hide itself behind the players while at the same time stealing their lollipops.
If Marvel wins the suit, and I really hope they do, it won't just protect THEIR Intellectual Property, (which I have no arguement with) but they will be protecting THE PLAYER'S Intellectual Property. This is a fact NCSoft conveniently continues to fail to mention to anyone. Freedom Force never made any claim to the characters generated by players, only the specific ones they themselves supplied and generated. This is why both Marvel and DC were very specific in how that was policed and dealt with.
In this case though, NCSoft's unpublished legal position is that they own ALL the characters period. That being the case Marvel has picked EXACTLY the right target in where the blame falls. What needs to clearly happen is for NCSoft to give back to the PLAYER's THEIR Intellectual Property rights to their own creations. Only then would we see real justice done in a world of superheroes.
The point being missed here are the very real ramifications of NCSoft winning the case. THEY become the only ones able to make a Superhero game, as at this moment they state THEY own over 2 MILLION characters and growing. (Unless you play in an already clearly defined Marvel/DC/Image/etc. Universe.) And the Intellectual Property rights of us, the Player/User, gets trampled on. This is why the EFF has stated they are now re-investigating the entire lawsuit based on these new and disturbing facts that have only recently had any light shed on them.
Marvel needs to win this one not just to protect their future and that of all the other Comic Books companies now and to come, they need to win this one for US! Otherwise we might as well hand in all those doodles we made as kids, because NCSoft, not Marvel, is arguing EXACTLY that. It's theirs, not ours. That's why NCSoft is trying to dismiss this case, as they can't profit from YOUR Intellectual Property until this goes away. (Which is exactly what they are attempting to do at this moment. Negotiations which are not in the public knowledge, but are based on NCSoft's presumption that they'll win and own all YOUR IP to do whatever the hell they want with it to exclusively their profit and none of yours.)
So I state again...just whom is really the villian here?
Posted Jan 24, 2005 5:09:38 AM | link
Haijikai: If Marvel wins the suit, and I really hope they do, it won't just protect THEIR Intellectual Property, (which I have no arguement with) but they will be protecting THE PLAYER'S Intellectual Property.
But according to what you're saying if NCsoft loses the case it's because they are responsible for our characters and thus they own them? How is this protecting our intellectual property? If NCsoft wins it will be because the characters created in their game are not their responsibility or property? Isn't this what you want? Ownership and responsibility for your character?
I'm just trying to understand what you want.
Haijikai: So I state again...just whom is really the villian here?
Posted Jan 24, 2005 7:21:43 AM | link
Anyone who plays City of Heroes as much as I do will tell you how practically impossible it is to create an infringing character and get away with it. Sure you can do whatever you want on the character creation screen (assuming you can get past the normal name filters) but once you are in the game you character will gets its name reset to "generic hero #353" or something to that effect almost immediately. Just as soon as one of the ingame GMs sees you or once somone makes a pettition then your name or costume (or both) gets randomly reset. 99% of the characters I've played with were unique and the 1% I've seen about that were an obvious violation get smote fairly quickly.
Posted Jan 24, 2005 10:47:32 AM | link
Actually NCsoft claiming that they own all the characters from the game is standard MMO practice. This is in fact a major issue. The contention on this point is that if the characters, etc, are not owned by the company and leased to the players, the the company has no right to ban or punish players for trading in-games items via e-bay, etc... a practice which could, depending on the game system, have a profoundly negative effect. Whether or not this is legal, I do not know.
Posted Jan 24, 2005 11:37:47 AM | link
Trademark and copyright violation by the players is a violtion of the EULA (End User Licence Agreement) that is enforced by NCSoft and Cryptic.
Maybe NCSoft has recently clamped down on this, but if any player can walk around and quickly run out of room to count copyright violations on both hands, then an employee of NCSoft could do it just as well.
Posted Jan 24, 2005 12:03:41 PM | link
Here's an easy solution to 'player's IP rights' questions: Is NCSoft coming into players' homes and taking their drawings? No.
People are logging into NCSoft's servers. That is NCSoft property. If you don't want to be subject to their rules, don't log on to their server. I'm not talking about clickthrough EULAs either. It's common sense. Have you ever heard the expression 'my house, my rules?' It applies to more than just homes. NCSoft is EXTREMELY specific about owning the characters created in their game (unless as otherwise noted those characters are already copyrighted or trademarked, in which case you are not allowed to create them in the game. Now, if someone does, is it NCSoft's fault? Of course not. They told you up front that as a condition to play their game, you must create an original character which they then own. Want to play the game? Then abide by the rules. Don't want to abide by the rules? Then don't play the game. How much easier could it possibly be? Why do people think that rights they have in a public sphere apply everywhere? Like, for example, the right to free speech. If the owner of this website does not like my comment, then that person is totally free to remove it. Does that limit my freedom of speech? You bet, in this forum. Does that mean that I can't say what I want on my own website? Of course not. Similarly, you may really want to play a copyrighted character in the game. It isn't your right to do so, however. You may want to make a really cool-looking superhero in CoH and then write an original comic about him or her afterwards. Too bad. The rules clearly state that you are not to make ANY character which is a copy of a trademarked or copyrighted character, and that all other characters are property of NCSoft. NCSoft renames infringing characters rapidly. What else could they do? Why shouldn't they own the characters? You made that character on MCSoft's server using NCSoft's tools, to play in NCSoft's game world. I guess I'm not following the argument that NCSoft shouldn't own the characters (except for ones which are already owned and thus prohibited in CoH). If you don't want NCSoft possibly using your character, make a random, generic, or ugly one. You want to play the game without having to follow all the rules. That just isn't how things work. TANSTAAFL.
Posted Jan 24, 2005 12:40:32 PM | link
NCSoft renames infringing characters rapidly. What else could they do?
Remove the characters with obvious likenesses based on popular characters.
It would've been very easy for NCSoft to go "hey, look, 'The Human Spiderr' and he looks just like Spider-Man, let's change that." But they didn't, and the reason is obvious: they wanted to get money from people who wanted to play as existing characters with existing characters.
Finding infriging charaters doesn't require entering the game and searching for them in virtual space, although the fact that it's very easy to do so represents how simple they are to find. They could just do a nightly search of their servers, reporting on all new avatars, or avatars that've changed, and displaying them on a screen for human perusal.
But since having characters owned by others increases CoH's value, NCSoft didn't see the point "why should we spend any time and effort to reduce our profits?" Which has now revealed itself to be the wrong business decision, since Marvel pretty much has this court case sewn up. NCSoft could've gotten away with voluntary policing of their character rosters; now they've going to be facing mandatory policing.
Posted Jan 24, 2005 1:07:11 PM | link
p-dawg> I guess I'm not following the argument that NCSoft shouldn't own the characters (except for ones which are already owned and thus prohibited in CoH). If you don't want NCSoft possibly using your character, make a random, generic, or ugly one.
Well, because if the players actually designed the avatar (not the character, the character does not exist in a copyable version) then they should have the authorship too. It is simply unreasonable to have a shrink-wrap EULA grant the maker of the tool ownership to everything created with it. Do you think a producer of a synthesizer can claim to own all music played on it by putting a clause in the owner's manual? Of course not.
Posted Jan 24, 2005 1:12:28 PM | link
There's no problem with playing by the rules, however that requires both parties to do so, something NCSoft ISN'T doing. That's why the lawsuit happened in the first place when Marvel suddenly realized what NCSoft is attempting to do. NCSoft if it loses the case would have to acknowledge that the creations of the players is STILL the property of the players, and that leasing "use of their service" is just that. "p-dawg" makes the arguement that we used NCSoft's tools, so what's wrong with it being theirs? Well if that was the case then we're back to the "Number Two Pencil" arguement, just because the tools are more complex doesn't stop the law of the land from applying. Or to extend the thought further who owns what you paint on Paint Shop Pro? You? Or the company that makes Paint Shop Pro? And from there you could quickly leap to most anything made by say ILM or any other animation company out there.
NCSoft meanwhile is doing a strange tapdance here. Their motion to dismiss went and freely acknowledged that player created content is the player's Intellectual Property. In fact, it supports it further by stating that Marvel's complaint does not file complaints against specific players. Exactly. NCSoft is doing the "Napster" shuffle by trying to transfer infringement blame to players, then suck up the rights to that Intellectual Property that is non-infringing.
"A copyright registration is a prerequisite to an infringement action." If that were true, then Marvel is going to argue [quite rightly] then that NCSoft can't impact the industry without registration. (Such as selling and using YOUR created characters for their own profit in other mediums.) Fortunately, the Copyright Act in the US clearly states that moving images (like City of Heroes superhero skins) need to be brought into registration within three months. (Actually, NCSoft may be quietly knackered by that. They can't bring any infringement suits against players using their own stuff outside the game by that.)
Interesting that NCSoft says the money paid by players is strictly a fee for playing the service. (As I pointed out they need to do earlier.) Ergo, there is no consideration for the involuntary transfer of property, or an explicit Work For Hire arrangement, so why should NCSoft receive the player's Intellectual Property by their own defense?
"Marvel's attempt to monopolize online "hero" games and quash creativity has no basis, and its complaint should be dismissed." Whoa there! This is exactly what NCSoft is attempting to do by claiming to OWN all 2 Million plus characters. Marvel only has under 5000 characters and you're worried about a Marvel-tax?
Very interesting that NCSoft invokes "scenes a faire" as a defense. That is exactly my point. Those superhero components are public domain (and here in the motion there is a blatant admission by NCSoft to that point), so the only question is the composition, otherwise known as a compilation under US Copyright.
Players need to strongly note [by the US Copyright Code]:
"(e) Involuntary Transfer. — When an individual author's ownership of a copyright, or of any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be given effect under this title, except as provided under title 11."
NCSoft's behaviour and position is tantamount to an involuntary transfer. You sign a click agreement that says you give away any Intellectual Property you create when you go online. Yet, you can't create that Intellectual Property offline. They force you to sign on to one of their servers BEFORE creating that character. According to them, you instantly give that character away. (As was pointed out correctly by "p-dawg" and NCSoft's representatives.) Not once did you get the chance to a) assign joint ownership b) declare that this character is used by permission under someone else's rights c) put the character in the public domain. It is strictly an involuntary transfer, and -that- is not kosher under US Copyright. US Copyright clearly states you own it, until you decide what to do with that. NCSoft cleverly strips that right away before you can exercise it, making it an involuntary transfer. That needs to be cracked down on for everyone's sake. This sort of argument by NCSoft already failed for Napster.
So while it might be argued that this is just simply MMO practice, it is not required, nor as it happens is it legal. (At least in the manner in which NCSoft is trying to profit from it.) That's why the EFF is re-examining the implications to our Freedoms this case has; and who really might be the Player's friend in all this, if anyone.
Posted Jan 24, 2005 5:52:53 PM | link
Surely, the line of argument against NCSoft at this moment in time, that they own all 2 million or whatever characters, is a bit of a moot point right now? NCSoft aren't suing Marvel companies for using their characters. NCSoft have shown no sign, nor do they show any sign, of starting an "NC-tax" on superhero comics in general. However, Marvel here are taking a forward action regarding their IP, and that's what's under discussion. NC will only be able to start an action on that kind of Marvel continue on to win this case.
Surely it would be better to stick to the facts at the case at hand, rather than wandering off into the realms of the "could-happens" and the "what-ifs"?
Agreed, NCSoft have a tenuous legal ground on claiming to own everything in-game regardless of who created it. It doesn't, however, have any bearing towards this cause because they've already covered their collective rears in saying that you aren't allowed to create copyrighted characters. To say that it is their fault that people still do is dubious.
Posted Jan 25, 2005 4:05:29 AM | link
NCSoft if it loses the case would have to acknowledge that the creations of the players is STILL the property of the players, and that leasing "use of their service" is just that.
I call bullsh!t, if NCsoft lose that means Marvel has proved that it's NCsofts responsibility and thus the characters belong to NCsoft and not the players.
Well if that was the case then we're back to the "Number Two Pencil" arguement, just because the tools are more complex doesn't stop the law of the land from applying. Or to extend the thought further who owns what you paint on Paint Shop Pro? You? Or the company that makes Paint Shop Pro?
NCSoft meanwhile is doing a strange tapdance here. Their motion to dismiss went and freely acknowledged that player created content is the player's Intellectual Property. In fact, it supports it further by stating that Marvel's complaint does not file complaints against specific players.
Well then if NCsoft win the case you'll have the grounds you need to use your character for whatever purpose you intend. Again I ask isn't this what you want?
They force you to sign on to one of their servers BEFORE creating that character.
I'd like to point out that noone came into your home and forced you to click the button. You chose to.
It is strictly an involuntary transfer, and -that- is not kosher under US Copyright.
Again you agreed, this to me seems to me to directly contradict your claim of "involuntary transfer"
And well said Sirius.
Posted Jan 25, 2005 6:39:07 AM | link
Horus> I call bullsh!t, if NCsoft lose that means Marvel has proved that it's NCsofts responsibility and thus the characters belong to NCsoft and not the players.
Nah, it would prove that their particular design in that particular context comes with editorial responsibilties.
Posted Jan 25, 2005 8:50:48 AM | link
It is absolutely NCSoft's responsibility to go actively looking for users that are violating their own temrs of use. This endevour is expensive, and time-consuming, but it seems common sense to me if they would preffered to avoid this lawsuit in the first palce. The case would likely be dismissed much easier if NCSoft could point to a staff whose sole purpose was the search for and removal of copyrighted material from the game world and say "Look, we're doing all THIS to make sure that IP rights are protected." In World of WarCraft, names that violate IP, or even refer to easily-recognizable parts of the public domain are promptly addressed. Some are filtered automatically during character creation, some are reported, and it is my understanding that Game Masters also spend portions of their time actively searching for names that violate the naming conventions: and this is just NAMES. If NCSoft was going to provide their users with a powerful tool which might very likely lead to some misuse of popular IP and say "go nuts!", and didn't expect some one to come knocking down the line, then they greatly misunderstood their user base's propensity for breaking rules.
Posted Jan 25, 2005 9:49:56 AM | link
This isn't the same as a #2 pencil. A number 2 pencil is sold as a writing implement. This game is not sold as a character-creation tool. It's a game, for which you must create a character before you play. Thus your analogy falls apart. A pencil is sold *for the purpose of making marks*. This game is sold *for the purpose of playing this game*. Every game has rules. One of the rules of this game is that NCSoft owns your character. If you don't like this rule...don't pay to play the game. It's really simple. Now, as for them not removing characters...they do it all the time. I'd be willing to bet that the chars showcased in the screenshots above have all been renamed/recostumed. You see a ton of 'Generic Heroxxxx' running around. The vast majority of them are renamed/recostumed characters that originally copied Marvel/DC/Dark Horse/whatever chars. They *do* take action, it just isn't immediate in all cases. Not only is the proposed solution of human review of all new avatars ridiculous, it's unworkable. You see, the humans reviewing all the new chars probably don't know every single comic character that existed before CoH came out. Thus you'd have to have multiple people reviewing every new avatar, and still wouldn't guarantee that all violations get caught. Their current system is extremely workable. Players report suspected violations, and then humans investigate those reports. No, not all violators are caught the first day, but every one I've seen has been caught eventually. Really, your expectations of this game seem rather unreasonable.
Posted Jan 25, 2005 11:45:50 AM | link
"NCSoft's behaviour and position is tantamount to an involuntary transfer. You sign a click agreement that says you give away any Intellectual Property you create when you go online. Yet, you can't create that Intellectual Property offline. They force you to sign on to one of their servers BEFORE creating that character."
What is your point? You can't create the characters using the creation tool outside the game because characters created with that tool HAVE NO PURPOSE other than to play City of Heroes. There are a finite number of combinations, and someone else could very easily duplicate your design without intending to. Which of you then owns that design? Neither. NCSoft does. Now, what it sounds like you want to do is use their character creation tool in order to create your own superhero...outside the game. Why would you think that's fair? You can already use other tools to create superheros outside of City of Heroes. You can't use the in-game character creation engine for anything other than creating characters for City of Heroes. Why should you get to use the tool they created for a purpose other than the one for which it was created? Not just that, you act as though it were your right to do so. Why do you have to log on to their servers before creating your character? Because your character ONLY EXISTS on those servers, for the express purpose of playing City of Heroes. Why *should* you be able to create your character offline? You can't use it offline. Yes, if NCSoft wanted to, they could release the character creation tool for general use. However, they don't have to, and they have not chosen to. Why should you get to use whatever you want for whatever you want whenever you want no matter what? You're saying that you want to use the City of Heroes character creation tool for a purpose other than making a character for use within City of Heroes, and you're upset that you can't. I just don't get it. Photoshop + some 3d modeling program would be much better....and you'd own the resulting creation (assuming you had legal copies of the software).
Posted Jan 25, 2005 12:01:53 PM | link
p-dawg> It's a game, for which you must create a character before you play.
So what? What if my friend draws an avatar, he grants me a license to use it, then I recreate it in CoH. Does that mean that he looses his ownership? Of course not.
This is comparable to bulletinboard users uploading pictures for their avatars.
p-dawg> Not only is the proposed solution of human review of all new avatars ridiculous, it's unworkable.
You have editors in other media. Same problem. Clearly, it is the most common superhero icons that will be recreated the most. I am sure they'll be able to find superhero-fanatics who are capable of doing the job...
Posted Jan 25, 2005 12:37:03 PM | link
When I played CoH, it was exceptionally rare that I saw someone ripping off an actual super hero. The overwhelming majority of characters were totally unique and original.
I also know that they make efforts (though honestly, I do not know how extensive) to rename and redesign any characters they find that are rip offs of comic book characters.
Frankly, I thought they did that just to preserve the integrity of the game.
I honestly can't see how Marvel thinks their IP is infringed by a company giving tools to players with which they can create any manner of creature/character.
If I typed up a full copy of the recent Harry Potter book using MS Word, Microsoft is not responsible for my infringement.
If I printed out copies and gave them to friends, HP is not responsible because they made the printer.
Posted Jan 25, 2005 12:45:04 PM | link
"That's why the lawsuit happened in the first place when Marvel suddenly realized what NCSoft is attempting to do."
Frankly, I think its a big mistake to think that NCSoft is in any way attempting to monopolize Comic IP. The general intent of such agreements is to guard them from complicated litigation by or between players. For example If you allowed players to maintain IP of character you might have to start trying to police copyright infringment of one player's design against anothers.
I'd be willing to bet they only end up registering characters they developed internally or that they want to appear in their print comic.
Posted Jan 25, 2005 12:56:41 PM | link
Michael Hartman> If I typed up a full copy of the recent Harry Potter book using MS Word, Microsoft is not responsible for my infringement.
If they provided a website called School of Magic which charged for membership and access, and you typed it up and published it there. I can't see how they could avoid having editorial responsibility.
CoH isn't particularly interesting, but the principles are.
You cannot claim the rights to a particular style, but is it ok to design a system which encourage user-creations of a particular style which is close to that of a competitor without having a solid moderation system in place?
If Marvel wins, what will happen? Developers will have to go for more unique styles that are less prone to IP conflicts or provide solid moderation systems.
Posted Jan 25, 2005 1:01:17 PM | link
Many, MANY games nowadays take ideas and inspiration from the games we have played over the years, and nobody cries "IP theft" when one of their ideas is borrowed. CoH itself is merely Freedom Force taken to a logic massively-multiplayer confusion, and nobody will really deny that.
I'll forage through my brain here. Let's look at Half-Life, as an example. They have a suite of insanely customisable tools and tricks to create new gameplay experiences for the game, and they are marketed as tools for creating those experiences. Many modifications (Earth's Special Forces, for example) are direct copies of already existing intellectual property. Are you going to sue Valve, because their tools are being misused in such a manner? Where Valve do not state anywhere in their own EULA that the tools are not to replicate copyrighted material?
No, you are not.
Posted Jan 25, 2005 2:14:30 PM | link
The case is very specific. If Marvel loses NCSoft get to retain it's "version" of the EULA therefore establishing that it really does own all the player's IP. If Marvel wins it establishes the "original" interpretation of the EULA by the EFF and the Comic Book Industry; not to mention the players; that the Avatar or Characters themselves remain the IP of the player. The "original" interpretaion was what was used to convince the Comic Book Industry originally during the 3+ year development process before the game was deployed to give it's approval, or at least stay "hand's off". When NCSoft actively began negotiating with a 3rd party to begin enforcing "their" version of the EULA is when things went a little kaka.
Mind you, NCSoft could potential "win", but still be forced by the terms of the settlement to honour the original interpretation of EULA, which is what Marvel wants in the first place.
So when the player agreed to the terms of using the game they were of course following the rules based on what the Law of the Land says it means. The rules you agreed to never said NCSoft owned your character! If they clearly had the Comic Book Industry NEVER would have let the game launch due to the very problems we are finding now. That NCSoft says the EULA means something else now is against the law and that's what Marvel is attempting to clarify and enforce, the original interpretation of that EULA all the players agreed to. So nothing forced the player to click that button and enter the agreement, but the player has fair expectation that the other party will follow the rules as well.
What's been missing in all of this are other facts of the case that are not in the public eye. Sirius makes the excellent point regarding NCSoft not having done any "obvious" attempt to do anything that would enforce any sort of NCSoft hero-tax. He's right about the "obvious", but that's because that information is not in the public. RIGHT NOW NCSoft is actively negotiating with a 3rd Party to do EXACTLY that, but while this lawsuit exists they now can't move forward with that. By Marvel pressing the suit NCSoft has now in their dismissal turned around once again and stated that it's the player's IP again. (As I pointed out earlier.) Now whether they'll continue this strange tapdance in their negotiations again is anyone's guess, but Marvel is going to make sure that point is very clearly addressed so that very action can't happen again.
And as for looking for "Infringement" issues, what's wrong with automating the process? They clearly do this already when it comes to names...so why not have a flagging system run that checks each "toon" and notes the ones that come closer to violating an actual pre-existing and registered character? In this age of computers why not let them do what they are best at? Just as long as there's a human at the end of it to make the final decision on the matter. Simply putting this in would have saved NCSoft a lot of problems. Honouring the original interpretation of the EULA as presented to everyone would also end a lot of problems. (And here's hoping their statements in the dismissal motion are their first steps in doing so.)
And as for the "character construction tool" arguement; despite it being in part and parcel of a game the courts have already made the legal precedent that it still falls under being part of a "construction tool". That once again makes it a "Number 2 Pencil". And if you think that avatar can only be used in the game, think again, the tools are there to extract it and use in other mediums. (Another reason Marvel sued as NCSoft was doing EXACTLY that when NCSoft claimed that they owned all the IP. There's nothing wrong with them doing that with their own created characters. It was the fact they were doing it with ALL 2 million, something they had no legal right to do as both Marvel and U.S. Copyright laws argue.)
So the Law says NCSoft owns the tools. (Which by extension are someone else's tools, but let's not go there. For sake of clarity we'll say their application of said tools in such a manner.) Does NCSoft own the service it provides in which you can use a designed character? Obviously, and you pay to use that service. But who owns the design of the character? You...why? The LAW SAYS SO. (Something the EFF pointed out and why they're re-examining the entire lawsuit.) This is a simple fact NCSoft can't get around now and is having to point out in their dismissal attempt, which contridicts their earlier policy that THEY owned it. That was why Marvel named NCsoft the defendent and not the players, as they're not letting NCSoft get away with ditching all the liability and taking all the ownership.
This is why I find this case so fascinating and potentially dangerous when it comes to the future of IP in an electronic medium. This is stuff that should have been clearly defined 5 years ago, but here we are and this is going to clearly establish one way or the other the future of our Intellectual Property and our Rights.
Posted Jan 25, 2005 2:59:19 PM | link
As a game developer, I would be very concerned with any precedent that said I (or my company) did not own the IP of all characters in our game(s).
That is a core principle in almost any EULA. A game developer/company MUST own the IP of things in their own world, unless they are one of the worlds/games that allow people to buy and sell things freely in real world markets.
NCSoft is in a trickier position because they want to own the IP (for standard reasons that any game developer would want to own the content of their own game) while at the same time not own the IP (so they are not responsible for infringement).
In a large way, this also illustrates the danger of giving players in MMORPGs powerful creative tools. The things they do with these tools can create a lot of headaches for you (the developer) if you wish to maintain ownership of all the content in your game.
Posted Jan 25, 2005 3:08:06 PM | link
Michael Hartman> A game developer/company MUST own the IP of things in their own world, unless they are one of the worlds/games that allow people to buy and sell things freely in real world markets.
Why? It is clearly sufficient that you have an implied licence to create copies within the context of the game world? You don't need to obtain ownership to use copies of a graphical design.
Just consider how awful it would be if players upload a picture of themselves for avatars and then the game owner starts using them in other contexts claiming ownership... The connotations are horrible!
Posted Jan 25, 2005 4:04:11 PM | link
Sirius> Many, MANY games nowadays take ideas and inspiration from the games we have played over the years, and nobody cries "IP theft" when one of their ideas is borrowed.
They do if they have a patent on that idea... Ideas are however not protected by copyright.
Posted Jan 25, 2005 4:07:43 PM | link
> Why? It is clearly sufficient that you have
> an implied licence to create copies within
> the context of the game world? You don't need
> to obtain ownership to use copies of a
> graphical design.
The reasons are numerous. One of the biggest is world/game continuity - especially in any game/world where the overall storyline and/or characters matter.
If someone's character becomes a significant part of the game world (its history, back story, etc.) what happens if that player decides to quit? What happens if that player gets mad about some game change and decides that in addition to quitting, the game can no longer use his/her character or any references to his/her character?
What if that character had become a major participant in game world politics or runs a huge guild/clan and then quits out of anger? The best course of action for the developers would be to run the character as an NPC or let another player take over the character. They cannot do that if the player is able to pull the plug irrevocably.
What if your game world has a literary guild where characters can have things published? If someone quits for whatever reason it is disruptive if they are able to take their content with them.
What if the web site tied to your game keeps track of all sorts of interesting historical data regarding competitions, wars, etc. that customers (both current and future) find very interesting? When a player quits, should he be able to take everything with him so the developers can no longer use whatever information/records/data were tied to that character?
What if the game company sells somewhat advanced characters (like the UO Advanced Character Service) and they do not want players competing with them for profits?
Those are just a few examples.
> Ola Fosheim Grøstad wrote:
> Just consider how awful it would be if
> players upload a picture of themselves
> for avatars and then the game owner starts
> using them in other contexts claiming
> ownership... The connotations are horrible!
Then pick a game with good developers who do not run roughshod over their customers for kicks.
If you truly want to create your own IP, then do it. Don't go into someone else's **GAME** world and expect to do it there.
Games often let people express themselves creatively, but with the exception of games designed specifically toward player creating (There, Second Life, etc.) they are still GAMES and should be enjoyed primarily as such. Expecting something totally different is irresponsible.
Posted Jan 25, 2005 7:20:44 PM | link
"The case is very specific."
Indeed it is. The remedies that Marvel has sought in its filing are all on the order of desisting from use of Marvel IP, and payment of damages. I don't buy into the spin of Marvel being a champion of freedom in this case.
It seems to me the EULA is one of the last things at stake here. What happens during a transfer of IP when its infringing? Is the "original" creator of the infringing material responsible, or does the receiver also have some responsibility for it? Can the transfer actually take place?
Regardless, it seems to me like its clear that NCSoft owns any of the non-infringing IP. (Conceeding the validity of clickable agreements for the sake of arguement).
Posted Jan 25, 2005 7:31:05 PM | link
Michael Hartman wrote:
What if the game company sells somewhat advanced characters (like the UO Advanced Character Service) and they do not want players competing with them for profits?
I'd think that in such a case, the game company might well be advised to look EXTREMELY carefully at any efforts on their part to quash third-party sales of characters... such actions would seem to be a tailor-made target for an antitrust lawsuit being levelled at them.
In fact, that might represent a nearly-ideal test case for answering some of the lingering questions about the "property" nature of avatars, and where the created value that arises from a player's development efforts should inhere.
Posted Jan 25, 2005 8:25:42 PM | link
Thabor -> Regardless, it seems to me like its clear that NCSoft owns any of the non-infringing IP. (Conceeding the validity of clickable agreements for the sake of arguement).
The why on earth did NCSoft REVERSE their position in their motion for dismissal and concede that the PLAYERS owned the non-infringing IP? Likely those expensive lawyers of theirs told them trying to do so was going to get them into a LOT of legal hot water. Freedom Force already set the precedent much earlier when they had both DC and Marvel to contend with. They clearly owned the tools and their own original creations, but anything else was the property of the player, so that meant in co-operation with DC and Marvel they dealt with the infringements based on the fact that the players owned the IP. So when the player created something that infringed on existing IP, they were the ones clearly liable. City of Heroes launched that way.
Michael Hartman makes some very interesting insights regarding the need for a game to try and have some control over elements used inside one's game. But one doesn't require the FULL IP rights of the material created by the user to do so. In fact that was one of the conditions that had to be made between Cryptic Studios and the Comic Book Industry when the game was in development. That later NCSoft has attempted to do just that with the IP in other mediums and claim FULL ownership and rights is one of the stated reasons Marvel began the suit. It violates the original agreement and what the EULA was supposed to also stand for.
Hartman -> NCSoft is in a trickier position because they want to own the IP (for standard reasons that any game developer would want to own the content of their own game) while at the same time not own the IP (so they are not responsible for infringement).
And this is where NCSoft made a complete mess of things. First stating they DIDN'T own the player's IP, and ergo if NCSoft takes reasonable steps to prevent infringement the players are clearly the ones liable for any infringement. Then when later seeing an opportunity changing this interpretation to OWNING all IP, which while now giving them that dreamed of full control and rights also dumps on their lap the liabilities no matter how much they want to put the onus squarely on the player. Now that they are sued for, of many things infringement, they go ahead and go BACK to stating that once more it's the Player's IP and ergo Marvel has the wrong target and should be going after the offending players and not them. Convenient that. If they'd stuck to the original interpretation of the EULA they had provided everyone in the beginning we might not be having this whole discussion.
If you truly want to create your own IP, then do it. Don't go into someone else's **GAME** world and expect to do it there.
Oh aye but there's the rub, this game world you COULD expect to do preciously that! Why? Because the Comic Book Industry would never have allowed it to launch to begin with if it had been the case of NCSoft owning all the player created IP. (As Cryptic studios noted, they had to tread a very fine line to get this game launched.) They saw the threat it posed to them, and when NCSoft behind the scenes began it's attempts to do EXACTLY that with a new interpretation of the EULA agreement Marvel was in the best position to act. So I can sure agree that Marvel is no champion here, (>shudder<) but right now until some other third party, say the EFF, steps in they're the only ones in any form championing the players rights because NCSoft sure didn't. And the legal council for Marvel is very specific stating that an important issue here is that NCSoft does NOT own the player's IP. Something NCSoft seems to be now conceding in the motion for dismissal. But is Marvel doing this for us the players? Ha! It's just an after-effect that it happens to be doing the right thing while looking out for their own and the rest of the Comic Book Industry's current and future concerns.
Posted Jan 25, 2005 10:42:33 PM | link
> Barry Kearns wrote:
> I'd think that in such a case, the game
> company might well be advised to look
> EXTREMELY carefully at any efforts on their
> part to quash third-party sales of characters...
> such actions would seem to be a tailor-made
> target for an antitrust lawsuit being levelled
> at them.
How is it an anti-trust violation to not want people to sell YOUR property out from under you?
I really don't understand where this crazy belief has come from that players have even the tiniest ownership interest in their characters or the possessions of their characters.
The company that makes the game owns it all outright, unless they choose otherwise. Any assumption to the contrary is just crazy talk.
> Haijikai wrote:
> Michael Hartman makes some very interesting
> insights regarding the need for a game to try
> and have some control over elements used inside
> one's game. But one doesn't require the FULL IP
> rights of the material created by the user to do so.
That may be true, but the safest route is to just make sure you own all content in your game and game world completely. Then you never have to worry about problems arising if a customer decides to quit the game- particularly if they quit in anger.
> Haijikai wrote:
> In fact that was one of the conditions that had
> to be made between Cryptic Studios and the Comic
> Book Industry when the game was in development.
I can certainly see that NCSoft was in a unique situation due to the fact that their character generator was so robust and could so easily duplicate the IP of other entities.
Most games are not in that type of situation.
Posted Jan 25, 2005 11:42:58 PM | link
Michael Hartman> What if that character had become a major participant in game world politics or runs a huge guild/clan and then quits out of anger? The best course of action for the developers would be to run the character as an NPC or let another player take over the character.
That, to me, sounds like the most offensive thing the company could possibly do in that situation! Indeed, I'd go so far as say the risk of that is precisely why we should be afraid of company's claiming IP on our avatars.
I don't know why you stopped there, though. What about if said famous guild leader was an elf named Foobar. He then went to a competing game and made an elf named Foobar that looks similar and acts similar. Surely the company should be able to sue the player for infringement! Get a cease and desist for him to stop acting the way he did in the original game!
I should note that I see at least three different things that get lumped as Avatar IP:
1) The model, texture, animation assets of the avatar. Customization is not yet at a point where I would suggest this data is owned by other than the company.
2) The property of the avatar. This would be the rights to use the bits on the server. This is where the ebay IP discussion shows up.
3) The creative input by the user. This is the "look" of the avatar, the name, the speach patterns, the history, the conversations, the books written by the player.
It is #3 which should remain the property of the player. It is #3 which *can* be made outside of the CoH design tools. It is #3 which can be designed in the CoH tools, and then exported outwards. If I create a superhero in CoH, designing the costume, the look, the name. I then create a back story for said character (in game, providing they have a "View Profile" type thing) Then, while playing, I develop a unique character for this hero by roleplaying. The resulting superhero is more than "Texture 5, colour Y, model Z". I could, for example, write a comic book about him. No art or textures from the game would be used. My understanding of CoH's agreement is that this would be violating NCsoft's "rights" to that character.
Maybe I'm weird and identify myself with my avatar. The notion that the game company could hijack my avatar, kick me from the game, and then make my representative do and say things that I disagree with? That would be, IMHO, a complete abuse of power on the part of the game owner. I believe MMORPGs I have played have legal jargon that may make that "legal". No amount of EULAs would make it moral.
I really dislike this whole attitude that, out of fear for IP concerns, big companies routinely annex all IP from the average person. Try submitting a support question to a big company? Not only do they own your question, but they also claim ownership of the reply to the question!
Why is the assumption that the end user can have no creative input worth measuring? Why is all IP being assigned to the more powerful member of all of these online agreements? Why is it always complete assignation, not even a joint ownership?
Michael Hartman> Don't go into someone else's **GAME** world and expect to do it there.
From their faq:
Create Your Own Hero
Choose from hundreds of different powers and design your own unique costume.
I wouldn't blame someone for being deluded into thinking that this meant they are supposed to create & design their own superhero in this game. I'm sure the use of "your" was a typo and "NCSoft's" was intended.
- Brask Mumei
Posted Jan 26, 2005 1:14:23 AM | link
Michael Hartman> That may be true, but the safest route is to just make sure you own all content in your game and game world completely. Then you never have to worry about problems arising if a customer decides to quit the game- particularly if they quit in anger.
Well, this is a bad idea:
1. You cannot claim ownership in some countries in Europe, so you limit your market.
2. You cannot expect non-intuitive and over-extensive EULAs to stick up in court. Certainly not in some countries in Europe.
3. You cannot create a design in which deletion is not possible, the user might not own the IP in the first place. You always need to open up for deletion. Either that or be prepared to shut down the entire system by request from the police.
4. If you own a copy, you own a copy, and the user cannot demand it to be deleted. It is only if you don't own a copy that the user can demand it to be deleted. Owning a copy doesn't imply ownership of the IP.
Posted Jan 26, 2005 5:24:43 AM | link