POW! WHAM! Marvel sues NCSoft

Marvel comics has sued NCSoft over copyright violations in City of Heroes.

According to the Los Angeles Times:

The company singles out a game feature for creating "a gigantic, green, 'science-based tanker'-type hero that moves and behaves nearly identically" to the "Hulk."

It's beginning...

Richard

Comments

[greglas]

1.

If anyone finds the complaint online, please post a link. ty.

[Greg]

2.

This has interesting ramifications for the DMCA/takedown debate, actually. If ISPs are responsible for ensuring that none of the sites they host have any IP-violatingn content, then aren't MMOs similarly responsible? Even if the content is entirely fan-created?

I think legally, the answer is "yes." Although I think that's also the wrong answer. But then--the fault is in the DMCA, no?

[Damion Schubert]

3.

ISPs are responsible for taking down offending material, but they are -NOT- responsible for prior restraint. It would be cost prohibitive for AOL to check every site they manage for copywritten material. However, if Marvel found some fanfic that offended them on an AOL site, they could pressure AOL to take it down, and AOL likely would.

[Cory Ondrejka]

4.

To Greg and Damion's points -- neither the NCSoft nor CoH mainpages have DMCA safe harbor links/contacts, which are required to gain the protection of the DMCA (ask AOL about what happens when you screw this up).

[Damion Schubert]

5.

Here's more on the DMCA/Safe Harbor, for anyone who is interested:

http://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act

[Greg]

6.

Actually, CoH's EULA (http://www.plaync.com/help/eula_coh.html) seems to prohibit players from creating characters that violate IP of third parties... Awfully hard to police, however, and the character creation tools do let you create characters that look a lot like, say, Hulk.

[Cory Ondrejka]

7.

Greg> Actually, CoH's EULA (http://www.plaync.com/help/eula_coh.html) seems to prohibit players from creating characters that violate IP of third parties.

Yeah, but without either DMCA protection or NCSoft enforcement, it would seem to be a dangerous position to be in legally. Hence, the DMCA, of course.

[Damion Schubert]

8.

Yeah, but without either DMCA protection or NCSoft enforcement
it would seem to be a dangerous position to be in legally. Hence, the DMCA, of course.

NCSoft does enforce. Most people with the names W00lverine get pinged by NCSoft relatively quickly.

[Andrew Burton]

9.

Is it just me, or does anyone else have the itch to start designing Fantastic Four costumes and give them out in Second Life? Or, better still, sell them for Lindens.

My vitriol aside, it'd be an interesting experiment to see if this is Marvel really protecting their brand or if it's Marvel trying to bust heads as they push their own software.

[Zonk]

10.

Slashdot discussion here.

I'm going to agree with Ubiq here. I think this is a case of Marvel going "Doh! We could have made miiiillions!"

Now they just have to contend with the game and comic raising the nerd nation's awareness of super heroes above what it previously was, netting them more cash as MMO Gamers pick up subscriptions to other comics.

About a month ago I remember thinking "Gosh, it would be brilliant if Cryptic and Marvel or DC did some tie-in stuff. A little Superman vs. Statesman vs. Spider-Man action?"

That requires more forethought than Marvel Enterprises is obviously capable of. Maybe this will teach them not to put out crappy video games.

[Ola Fosheim Grøstad]

11.

thenerdgod at slashdot has a good point. He claims that the EULA states that Cryptic/NCSoft owns all characters and implies that they bascially are getting a taste of their own medicine.

[Edward Castronova]

12.

Boff!

[Scott Moore]

13.

Boo on the AP report! Boo on other news sites that simply rewrite the AP report!

The original AP report does not specifically state that the suit was files under DMCA and it does not indicate *which* US District Court the suit was actually filed. If we knew more, we might be able to get a copy of the filing and examine it further and know if Marvel is filing based on DMCA or another aspect of copyright law.

I had access to research folks who could pull up court dockets and records (like my own Cerebro), but fate sent them on their way. If anyone has a better ability to get the filing, that would be quite the coup.

[randal]

14.

thenerdgod is correct. refer to EULA Section 6c. The EULA states that they own ALL player generated content. People have been comparing NCSoft to an ISP then this clause would allow an ISP to own everything you upload to their servers!!

Basically NCSoft put that in so they could exploit their players' creations and now that greed is going to cost them.

[Brask Mumei]

15.

I think it is a bit extreme to say they put that clause in to *exploit* their player's creations. I personally believe that clause (which is in other games as well) is there in a misguided attempt to prevent players claiming ownership of the character on the server, and hence rights to do things like sell it. Also, it makes it unquestionably legal for the VW operator to broadcast the player's text chat & log it.

I agree it should be removed, however.

- Brask Mumei

[randal]

16.

So the larger question, which has been debated before, is whether player generated content belongs to the player or the company that owns the game.

IMHO, game companies should not be allowed to appropriate what they have not created. They have just created the tools to enable the creation of content but the imagination/creativity came from the player and thus he should own the output of his work. I'd even go so far as to say that this should become some sort of general law that EULA's could not circumvent.

And as this lawsuit demonstrates, companies would probably be better off leaving those rights with their players. In this situation it would've forced Marvel to sue individuals that infringe their trademarks instead of going after NCSoft (if that is really their goal. It might be they are just trying to bulldoze a competitor).

[Richard Bartle]

17.

randal>And as this lawsuit demonstrates, companies would probably be better off leaving those rights with their players.

I wonder why anyone has to own these IP rights?

Why is it that developers want to take these rights for themselves? Isn't it just the case that they don't want the players to have them?

Richard

[randal]

18.

Richard>I wonder why anyone has to own these IP rights?
Why is it that developers want to take these rights for themselves? Isn't it just the case that they don't want the players to have them?

Perhaps for most games there is not much developers could use. But in the case of a comic book related genre, I can easily imagine that someone creates a character (this could include costume, bio, personality?) that they would later want to use in an actual piece of fiction outside of the game (comic, book, book, piece of art, whatever). If it ever became popular NCSoft could easliy assert their rights saying the creater no longer owns the rights. Whether they do it or not, the EULA gives them that right.

Again, the game has become a tool for creativity. Would any artist use Photoshop under a similar EULA?

[Ola Fosheim Grøstad]

19.

Scott More> If we knew more, we might be able to get a copy of the filing and examine it further and know if Marvel is filing based on DMCA or another aspect of copyright law.

I don't know much about US copyright law, but from a more philosphical point of view:

As characters tends to be protected by copyright law it seems quite reasonable that Marvel can sue companies which entice users to re-create characters that Marvel owns. Especially if they have claimed authorship of the set of characters you can choose between. If they claim to be authors of the resulting characters they must have forseen everything that can be created with the system? You can, after all, only be author of what you have seen to the end (product).

In a character customization system it is rather unclear wether users are creating or selecting. If they are selecting then the game maker is liable for providing copyright infringing characters. If they are creating, then the game company cannot really claim authorship over the character.

E.g. I could create a toon before I purchased the game for a real comic strip, and then recreate my toon within the game later for my own amusement. I don't see how I could loose authorship just by playing the game..? O_o

[ren]

20.

Ola Fosheim Grøstad > E.g. I could create a toon before I purchased the game for a real comic strip, and then recreate my toon within the game later for my own amusement. I don't see how I could loose authorship just by playing the game..? O_o

Hmm there’s a point. I guess the question would be whether the contract acts as an assignment of rights or not. In the UK my Moral Rights as an Author cannot be assigned, hence even if other ones were I think that if NC Soft used a character that I pre-created they would have to acknowledge me as an author even if the TSO succeeded in transferring rights. The relevant bit of the EULA seems to be this:

http://www.plaync.com/help/eula_coh.html

6. CONTENT AND MEMBER CONDUCT
(a) Content. You acknowledge that by using the Software and the Service you will have access to graphics, sound effects, music, animation-style video, content, layout, design, files, data, characters (and items and attributes associated with characters), game objects and text (collectively, "Game Content"). NC Interactive does not pre-screen Game Content as a matter of policy. YOU UNDERSTAND AND AGREE THAT NC INTERACTIVE HAS THE RIGHT, BUT NOT THE OBLIGATION, TO REMOVE ANY CONTENT (INCLUDING YOURS) IN WHOLE OR IN PART AT ANY TIME FOR ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE AND WITH NO LIABILITY OF ANY KIND.

(b) Rights in Content. You acknowledge that NC Interactive and its related Game Content Providers have rights in their respective Game Content under copyright and other applicable laws, and that you accept full responsibility and liability for your use of any Game Content in violation of any such rights. NC Interactive and its related Game Content Providers grant to Members the right to use the Game Content for noncommercial, personal purposes, including in connection with creating noncommercial fan fiction or fan web sites regarding the same. However, you acknowledge and agree that you shall not reproduce, prepare derivative works based upon, distribute, publicly perform, or transmit any Game Content for commercial uses without first obtaining the express written consent of NC Interactive.

Now, I’ve just got an account with on CoH, so we can try this. We can create a Character called TerraNova; we can then use set of generic hero skills and costume ideas to create the character as a text description – published on TN (hence making it part of the gargantuan TerraNova Publishing Conglomerate). We then need some assertion of Copyright about it, then create it in CoH – basically using it as PhotoShop.

Now, NC Soft’s Copyright Policy (http://www.plaync.com/help/legal_copyright.html) states:

“NC Interactive respects the intellectual property of others, and we ask that subscribers of our services do the same.”

In this case, just like Marvel ‘we’ are the ‘other’ so NCSoft under their own policy have to protect us – right?

Has mischievousness left logic behind here somewhere?

Oh, also as other games tend to be based on totally generic characteristics can we create TN Orks, Elves, etc and do similar across other MMOs?

[Richard Bartle]

21.

Ola Fosheim Grøstad>As characters tends to be protected by copyright law it seems quite reasonable that Marvel can sue companies which entice users to re-create characters that Marvel owns.

So companies that make stationery could be sued because they entice users to re-create Marvel characters?

So companies that make photocopiers could be sued because they entice users to re-create entire Marvel comics?

Richard

[Matt Mihaly]

22.

Randal wrote:
I'd even go so far as to say that this should become some sort of general law that EULA's could not circumvent.

And I'd go so far as to say that someone shouldn't agree to something that he or she doesn't wish to be held to. I realize that valuing your word is considered 'old-fashioned' in some circles these days.
--matt

[Brask Mumei]

23.

matt> And I'd go so far as to say that someone shouldn't agree to something that he or she doesn't wish to be held to. I realize that valuing your word is considered 'old-fashioned' in some circles these days.

Don't worry. I always clearly state (aloud) that I am merely pressing whatever button allows the game to install, and do not consider doing so the acceptance of any contract. Since the game continues the installation process, they must have agreed with my claims. Thus, having never agreed with the EULA in question, my honor is perfectly safe. (I always also find it somewhat humorous when I install something in a foreign language I can't read. Okay, is this the button? Nope. Okay, try the other one...)

I'm a compulsive reader, so often read these things. Does anyone know why some sections are always written in ALL CAPS? Is this because you are not supposed to read these sections? I rarely read those sections as it is so hard to read paragraphs of ALL CAPS.

My personal fear is that abuse of EULAs will result in them being taken away. As a software developer, I like the "No matter how much I screw up your system I'm not responsible" clause. I really don't want it to be stricken down as invalid because some greedy person inserted a "Your first born child belongs to us" clause into their EULA. We've managed to convince consumers to accept as "normal" behaviour that results in massive lawsuits in any other industry. So why should we try and push it any farther?

- Brask Mumei

[Ola Fosheim Grøstad]

24.

Richard> So companies that make stationery could be sued because they entice users to re-create Marvel characters?

If they wrapped it up as super-hero paper and included a small set of templates that allowed to you to re-create all kinds of Marvel super heroes and in addition claimed that they owned all the various resulting designs. Then maybe.

However these characters are embedded in a fictional work, the fictional world of the game and it belongs to the same genre. So it is a bad analogy.

[greglas]

25.

November 12, 2004

Marvel sues Cryptic Studios and NCsoft.

FOR IMMEDIATE RELEASE BY CRYPTIC STUDIOS, INC.

As reported by The Associated Press, Marvel Enterprises Inc. and Marvel Characters, Inc. have sued NCsoft Corporation and Cryptic Studios. The complaint is meritless. Cryptic Studios is confident that the District Court will reject all of Marvel's claims and fully vindicate Cryptic Studios in all respects.

http://www.crypticstudios.com/

[Matt Mihaly]

26.

Brask wrote:
Don't worry. I always clearly state (aloud) that I am merely pressing whatever button allows the game to install, and do not consider doing so the acceptance of any contract. Since the game continues the installation process, they must have agreed with my claims. Thus, having never agreed with the EULA in question, my honor is perfectly safe.

So if I were to contract with you for software development (assuming you did contract work), you'd be ok with me signing a contract with you that promises I'll pay you, but while signing it saying, "I'm not really agreeing to this." and using that as a reason not to pay you later? Come on.

(I always also find it somewhat humorous when I install something in a foreign language I can't read. Okay, is this the button? Nope. Okay, try the other one...)

Yeah, that's pretty humorous.

My personal fear is that abuse of EULAs will result in them being taken away. As a software developer, I like the "No matter how much I screw up your system I'm not responsible" clause. I really don't want it to be stricken down as invalid because some greedy person inserted a "Your first born child belongs to us" clause into their EULA. We've managed to convince consumers to accept as "normal" behaviour that results in massive lawsuits in any other industry. So why should we try and push it any farther?

Well I'd agree that something like, "Your first born child belongs to us" might be crossing some line, but I'm not sure where your concern comes from. There's nothing anything like that in any MMOG EULA that I'm aware of.

--matt

[Amberyl]

27.

I imagine part of the issue at hand is the difficulty of writing a EULA that doesn't restrict things that players might legitimately want to do and that don't harm the company, and ditto for the company vs. players, and to make it difficult for the players to frivolously sue the company.

Other legitimate reasons that drive asserting ownership over player-created content: Not having to worry about scrubbing screenshots in your marketing material; the right to use character names, images, player content, etc. in your game "newspaper" and website and other online/offline materials.

Corporate lawyers tend to err on the side of asserting rights to too many things, of course.

[greglas]

28.

Looks like the Central District of California, for those still hunting for the Complaint.

http://news.spong.com/detail/news.asp?prid=7987

[Brask Mumei]

29.

Matt> So if I were to contract with you for software development (assuming you did contract work), you'd be ok with me signing a contract with you that promises I'll pay you, but while signing it saying, "I'm not really agreeing to this." and using that as a reason not to pay you later? Come on.

I'm not claiming that the law would uphold my claims at all :>

My theory of contract is that there has to be two parties involved with the contract. Unilateral automatic contracts that are "signed" by the mere act of installation seem to me to be silly. I have as much agreed to their terms by pressing the button that causes an install, as they have agreed to my terms by letting the software install.

"By continuing to install this software on my machine, you, the software developer, agree to the following terms." Hmm... They seem to have continued the install! That must mean they agreed to my terms!

In the case of the software contract. Let's say we discuss verbally what we believe the terms to be. I, foolishly, sign it without having a lawyer verify that is what the legalese means. I will be legally bound by the words of the contract. IMHO, however, I will *not* be morally bound by those words. You cannot usurp "my word", that is only up to me to give.

(This gets very close to: "My fingers were crossed! Ha!", which no doubt is why it doesn't work as a legal defense :> I think one would find it closely matches how people actually treat EULAs, however.)

matt> Well I'd agree that something like, "Your first born child belongs to us" might be crossing some line, but I'm not sure where your concern comes from. There's nothing anything like that in any MMOG EULA that I'm aware of.

The automatic assignation of copyright rights for anything entered into their system applies, IMHO. Writing a book in game should not grant the game company the rights to the book. (It's also often not clear if *I* retain any rights to the book) This is just the lawyers being paranoid, I do not believe they'd actually try to enforce such a thing.

We, as a society, need to figure out a better balance of power for this sort of thing. The current theory seems to be that in person-to-company relationships, the Company gains all rights. Eg, send in a support question to many companies and you'll note that they demand copyright ownership of all information given to them. No doubt they want to protect themselves and their customer support databases. What annoys me is that when they respond to me, they also demand to keep ownership of their responses. Why should the company own the entire communication?

As Richard Bartle suggested, the real question should be why *anyone* has copyright of this sort of communication? Copyright was supposed to exclude conversations - is it not an accident of technology that MMORPG chats are "fixed"?

- Brask Mumei

[Arthur Hansen]

30.

To the people complaining about Cryptic "owning" the players creations, there is a really very simple reason for that: They want to be able to use those characters in their publications and promotions.

A recent storyline in the City of Heroes comic books has a scene with "jurors" that were all (but the main character) based on player characters from Beta or early play.

Without that clause Cryptic could not have used those character (who were all tickled pink and very happy at their character inclusion) in their storyline.

How many people get to have their characters *in* a comic book?

In regular comics, not many.

In City of Heroes? Maybe a lot of people.

[randal]

31.

Arthur>To the people complaining about Cryptic "owning" the players creations, there is a really very simple reason for that: They want to be able to use those characters in their publications and promotions.

Then why don't they ask: "Can we use your character in our comic/promotions? Don't worry you retain the copyright." Isn't that simple?

I don't think a player would be tickled pink if 5 years from now after a super hero he created became a movie blockbuster and out crawl Cryptic's lawyers claiming ownership. They could play it like some do with submarine patents.

Cryptic will probably end up with thousands of copyrighted characters. What do you think they'll do with all those?

Bottom line they provide a great creative tool but that should not mean they can own what get's created with it. Same goes for crayons, hammers, photoshop, etc.

matt> Well I'd agree that something like, "Your first born child belongs to us"

Not your first born child but the character YOU created. Not them.

[Richard Bartle]

32.

Ola Fosheim Grøstad>If they wrapped it up as super-hero paper and included a small set of templates that allowed to you to re-create all kinds of Marvel super heroes and in addition claimed that they owned all the various resulting designs. Then maybe.

The legal documents don't say anything about ownership of designs, but that isn't to say they won't soon...

The Sims 2 allows players to create characters that look like famous people. So do many virtual worlds. Just because you CAN make the pictures, that doesn't mean you can ONLY make the pictures, though. I (well, my kids) could probably make a Sims 2 character that looked like Clark Kent(TM); does that mean that The Sims 2 should include some kind of fuzzy logic face-recognition software to prevent me from creating such a face? If so, will I find myself spending hours creating a face only to be told I can't have it because it looks too much like some Nepalese actor I've never heard of?

CoH allows players to create thousands of characters by combining basic elements. A few combinations of these elements can be read as being equivalent (in game terms) to what certain Marvel characters can do in comics. That doesn't mean the developers were encouraging people to create those combinations, though.

Besides, there's real potential for Marvel to shoot themselves in the foot here. Let's say they won the court case: they have established that through their comics they have the rights to certain comic character feature combinations. This means that character feature combinations are copyrightable. Unfortunately for them, CoH can claim to have the rights to all the OTHER combinations. Next time Marvel wants to add a new character to their comic book series, NCSoft can say "excuse me, that's clearly an XYZ, which is our copyright".

Although Marvel may have point over the resemblance of the CoH tutorial character to Captain America, the rest of the lawsuit seems rather ill-advised.

Richard

[randal]

33.

Richard> Next time Marvel wants to add a new character to their comic book series, NCSoft can say "excuse me, that's clearly an XYZ, which is our copyright".

Just to add some figures to the discussion:

Marvel
4,700 characters
http://www.marvel.com/company/index.htm

City of Heroes
180,000 active users as of August 2nd.
252,000 units sold as per Q3 Financial Results
(I leave it to the reader to estimate the number of characters this amounts to as a user may have multiple characters)
http://www.plaync.com/about/press_release_080204.html
http://www.plaync.com/about/press_release_110404b.html

[Ola Fosheim Grøstad]

34.

Richard, while I understand your position, I don't think Marvel are shooting themselves in the foot. (They might loose the case though.)

A single user game is played in private. What you see in a public space in a virtual world equals publishing. (e.g. you can show a rented movie to your friends, but not in public) If NCsoft claims "full control" over their world they should also have to answer to the editorial responsibility that comes with their "online publishing system".

And I doubt that the characters in CoH will be seen as critical to that work of fiction to the extent that it may cause brand confusion. Marvel may be able to point at CoH and say "Hey, your fictional world is sold on the merits of our characters". I doubt that NCsoft can make the same claim based on player characters.

Characters in fiction enjoy special copyright protection (at least I believe they do so here in Norway, I don't have time to track down the paragraph) even if they might not qualify as works in their own right. I.e. you cannot copyright a name, but you may have copyright to the main character of your book, signfied by its name/design. A green monster in the superhero genre does signify Hulk, I believe?

[Matt Mihaly]

35.

Randal wrote:
matt> Well I'd agree that something like, "Your first born child belongs to us"

Not your first born child but the character YOU created. Not them.

Right. And the difference between someone's child and some throwaway character on a MMOG is so large that comparing them is stupid.

Simple solution: Don't use their product to create the character if you want to retain ownership over it. Use an alternative product, or don't do it at all.

--matt

[Billy]

36.

"A green monster in the superhero genre does signify Hulk, I believe?"
Or Killer Croc or Maul or one of athousand different green bulky characters that people have come up with over the years. This is ridiculous. No one thinks that "xxx Th3 F1a$h xxx" is an official DC character or "HU1K" is from Marvel. This has really bullying. Marvel realized that this game goes so far beyond any game they would put together that they are afraid that comic companies might actually have to put out games of quality instead of the shlock they put out now.
Also on the subject they are so going to loose the Statesman = Cap. America fight. For anyone tht remembers the sheer knock off Fighting American. The Judge ruled he just couldn't throw his shield. Statesman looks completely diferent except for color scheme. Not a chance.
So who's boycotting Marvel?... bankrupcy again.

[Ola Fosheim Grøstad]

37.

Of course it is bullying, that doesn't mean that the principles don't hold. I.e. that doesn't mean that this is something you have no responsibility for when you design a template-based character creation system.

[Richard Bartle]

38.

Ola Fosheim Grøstad>I doubt that the characters in CoH will be seen as critical to that work of fiction to the extent that it may cause brand confusion.

Me too, although that would only mean that NCSoft couldn't put out a cease and desist order on Marvel comics containing a disputed character while the courts did their stuff. It doesn't mean that, were the courts to decide that Marvel was indeed using a character that looked and felt just like a character from CoH, they could continue to do so.

>Marvel may be able to point at CoH and say "Hey, your fictional world is sold on the merits of our characters". I doubt that NCsoft can make the same claim based on player characters

True, but that doesn't matter. If NCSoft has copyright in its characters then it can prevent Marvel from using those characters, even if the damage to CoH is minimal. All that is affected is the amount of damages that has to be paid if it any are awarded.

Richard

[Ola Fosheim Grøstad]

39.

Richard, that might be true in the US, but then we are talking about the power-strategies of sueing as well... :-)

Btw, I shouldn't have stated that they have copyright on characters. In Norway it is more like this: you are not allowed to use a title, name or sign which could cause confusion with another work or the author/creator of another work.

So, considering that many players play a game like that based on transference related to their favourite superhero and that a template-based creation system explicitly allows specific designs and exclude others (which I think is editorial in nature), then it follows that an in-game situation could evolve where the "landscape of characters" and the "web-presence of players" are implying that this is a Marvel/DC like place and that the owner of CoH has not fulfilled their editioral responsibility or that the owner of CoH is deliberately exploiting this. I am not saying that this is the case in CoH, but I think it holds in principle. I.e. something to take into consideration when designing a world.

[Billy]

40.

like I said earlier. No one thinks that "xxx Th3 F1a$h xxx" is an official DC character or "HU1K" is from Marvel.

[Ola Fosheim Grøstad]

41.

Billy> like I said earlier. No one thinks that "xxx Th3 F1a$h xxx" is an official DC character or "HU1K" is from Marvel.

I don't see how this matters if there are other signifiers such as the visual design. I will get into trouble if I make a character creation system which makes it easy to replicate Disney toons visually. Unless it is a parody. Right?

[randal]

42.

Check out this wired article:
Marvel Battles Role Players

Favorite quote:
"Can you imagine a game where every tweak to your character requires sign-off from the game company's copyright and trademark lawyers?" Doctorow asked. "Marvel is supposed to be a company that stands for fun, imagination and storytelling, but this lawyer-happy thuggery is the hallmark of a Stalinist dictatorship, not a game world."

[Billy]

43.

actually making the tool isn't enough. If they were just sueing over the tool then this would be open and shut. After all you can't blame bic for a little kid drawing spiderman. They are also running the database that houses these characters. So they have to prove that NCsoft intentionally made it "easy" to copy the characters, for one item. They also have to prove it either harms their trademark or that the game draws some kind of importance off of thier trademark. I think this will be hard to do the way the EULA is written and the attempts they made with marvel and DC to keep those names off the servers.
As for the first, If you've played with the character creator, it take so much time to get anything right. I'll give on the hulk one. You can make a giant green guy in purple pants easily. But that costume was never supposed to be a thought out thing. It's part of the hulk's irrationality. I can draw it easily myself and I'm only a writer. The other costumes wolverine, cyclops. All the others take a bit of time to make, unless you take the time to knwo exactly what you want to grab. This can easily be proven by getting a picture of wolverine in court and pull someone off the street that hasn't played the game before and make him create the wolvster.
Secondly the only people that have hurt the Marvel trademark are Quesada and Marvel themselves. Have you seen the games they put out.

[Lacero]

44.

If NCSoft has copyright in its characters then it can prevent Marvel from using those characters, even if the damage to CoH is minimal.

My understanding of copyright law is that you can create something exactly the same as someone else has as long as you do it independently. If, having never read "The DaVinci Code", I wrote a book that was indentical word for word I wouldn't have infringed copyright.

Of course no one would believe me, but given how obscure the characters on CoH are I think NCSoft would have to prove Marvel copied players designs. Looking the same shouldn't be enough, IMHO.

[Richard Bartle]

45.

Ola Fosheim Grøstad>it follows that an in-game situation could evolve where the "landscape of characters" and the "web-presence of players" are implying that this is a Marvel/DC like place

So in Norway, you couldn't even play a DikuMUD because its "landscape of characters" and "web-presence of players" are implying that this is a D&D-like place?

Richard

[Randal]

46.

The full complaint can be found here:

http://eff.org/IP/20041115_Marvel_NCSoft.pdf

[Ola Fosheim Grøstad]

47.

Richard Bartle> So in Norway, you couldn't even play a DikuMUD because its "landscape of characters" and "web-presence of players" are implying that this is a D&D-like place?

I don't see your point. D&D doesn't have fictional characters. You do of course have lots of MUDs that are violating copyrights of authors, yes...

[Greg Boyd]

48.

Hi,

I met some of you at State of Play II. I'm an IP attorney in New York and I have been wondering how this venerable copyright doctrine will play into the case, if at all.

Scenes a Fair Doctrine

"The Scenes a Fair Doctrine is similar to public domain property. This doctrine recognizes that some expressions of ideas are so often used that they cannot be copyrighted by themselves. An example of this is the fairy tale beginning "Once upon a time." So many fairy tales begin that way that a fairy tale-based game could certainly begin that way, too. Other Scenes a Fair Doctrine examples would be the generic elements of a fantasy story including wizards, dragons, dwarves, and elves. These races and their general stereotypes are not copyrighted, but specific instances of these races that are clear characters such as Gandalf or Drizzt would be."

This text is cut from a larger article on protecting IP in games originally published in Game Developer.

http://www.kenyon.com/pubs/detail_pubs.aspx?pub_id=321229805

In short, there are only so many ways a superhero can be made. Fast, strong, with a cape etc. These are also very much a part of our culture now, like the generic elf, orc, etc.

Any thoughts?

Greg

[Richard Bartle]

49.

Ola Fosheim Grøstad>D&D doesn't have fictional characters.

You mean ... Rodney the Kobold-Killer was real? And not just a character played by my brother 25 years ago?

Of course D&D has fictional characters. The point I was making, though, wasn't that the D&D game came with recognisable and individual predefined characters (which I think was what you were getting at); rather, it was that it came with a "landscape of characters" much as the Marvel universe does. The fact that the characters are not individually recognisable doesn't make any difference to the fact that you can position any character you do create within the D&D "landscape".

Richard

[Ola Fosheim Grøstad]

50.

Richard, I didn't mean an abstract landscape. I meant a landscape of player-characters embracing F4, spidy, hulk etc.

Am I allowed to make a world called DuckMouse with a character creation system using all the non-copyrightable individual components for making Disney characters? Maybe the system itself isn't infringing on Disney's copyrights, but what the users would make with it, most likely would.

And what about hobbits. Can you create VW with hobbits without implying that Tolkien is behind it? I think you should be allowed to as they are just an idea, but I don't think you can?

[Greg Boyd]

51.

Ola,

I think you can make a VW with hobbits and not contribute it to Tolkien, just like you can make one with elves. The idea of a halfling is a mythological one, beyond copyright protection. (unless Tolkien was the first person to come up with hobbits - but I think the tradition is older than him)

I believe that sort of question to be fully covered by the Scenes a Fair Doctrine in copyright (see above).

I am often wrong, I could be this time too - but I feel pretty confident about it.

[Richard Bartle]

52.

Greg Boyd>The idea of a halfling is a mythological one, beyond copyright protection.

Halflings, yes, but hobbits, no. "Hobbit" is a word invented by Tolkien, and if you want hobbits then you have to get permission from the Tolkien Foundation. This is why D&D calls them halflings (see "Usage outside Tolkien" at the bottom of the Wikipedia definition).

Tolkien also invented orcs, but gave them a name that had been used in the past for creatures of the underworld (mainly sea monsters, but who cares?), so the Tolkien Foundation doesn't have a vice-like grip on that one.

Richard

[Greg Boyd]

53.

Thanks Richard.

I was not aware of that difference between a hobbit and a halfling.

Greg

[greglas]

54.

Marvel: Bumbling Villain

[Aaron]

55.

Isn't imitation the sincerist form of flattery? It would seem to me that creating a Marvel, DC, or other comic company-esque character could be claimed as an homage. And, since no one is profiting from my creation of this hero (unless someone was to actually say "Play CoH with The Hulk") then there is really no infringement going on. Right?