License to Pretend

Like several other Terra Novans, I'm a fan of City of Heroes and am quite concerned about Marvel's suit against NCSoft.   The Complaint[1.7MB pdf] raises some very strange issues at the level of legal doctrine, but it's a particularly troubling claim with regard to the policy of virtual worlds.  Marvel is claiming that NCSoft is vicariously and contributorily liable for copyright and trademark infringement--which means that it must be claiming that players are infringing Marvel's copyrights and trademarks by making avatars resemble superheroes in the Marvel portfolio (the X-men, the Hulk, etc.). 

Fred von Lohmann (who argued [16MB mp3] the Ninth Circuit appeal in the Grokster case, btw) has an excellent essay today in law.com on what a bad idea this is in terms of law and policy.  After he tells the legal audience what in Sam Hill an MMORPG is, Fred points out that the players are really at the heart of the claim:   

Yes, you read that right -- Marvel's claim is based on the idea that private individuals who pretend to be Wolverine for fun in a video game are breaking the law. Since when is it illegal to pretend to be your favorite superhero? Should parents be policing their kids, lest they be caught "pretending without a license"? Were all those drawings of the X-Men on grammar school notebooks evidence of infringement? And what about all those homemade superhero Halloween costumes?  <ed: snip> Why are everyday expressive activities in the real world -- such as joining some neighborhood kids in the backyard for a bit of superhero role playing -- suddenly exposed to the depredations of copyright and trademark lawyers when they move online?

The big point here is that this suit isn't just about private contractual arrangements between two major companies.  The rights of the player, and the nature of player creativity in MMORPGs generally, are implicated by Marvel's claims.

Those who want to appropriate characters and objects from their favorite movies, comics, games or television shows will be limited to virtual worlds either operated or licensed by the corporations that own those cultural objects. If they want to mix and match characters and genres, they will be hunted down and deleted, either by the rightsholders themselves or by MMO operators deputized by fear of secondary liability. In essence, the open-ended universe of MMOs would be reduced to a limited set of tightly controlled theme parks. All this, thanks to the censorial side of copyright and trademark law.

So let's recognize Marvel's lawsuit for what it is -- not just a tussle between competing corporations, but as an assault on the basic expressive rights of the fans that have supported the comic book industry for decades. Be prepared when your children, heading out into the virtual backyard of the future, ask, "Mom, I want to play Spider-Man with my friends today. Did we pay for the Marvel license this month?"

Really couldn't have said it better.  Constance pointed out that Henry Jenkins and Kurt Squire have a critical column in Computer Games this month.  It references Kavalier & Clay -- a book people keep telling me I have to read, since I used to draw comics myself in a former life.  The discussion on the big boards seems generally displeased (Warcry, Stratics, MMORPGDot).

Note:  If you're a CoH player and feel strongly about your right to pretend without a license, Fred would be interested in talking with you -- the domain is "eff.org", and the handle is "fred".

Update: Check out this story about Cryptic's origins on Forbes.

Comments

[Andres Ferraro]

1.

Next up: License to hum a tune.

[Edward Castronova]

2.

I wonder if this might have an unintended effect on avatar ownership rights issue. If NCSoft successfully argues it cannot be held liable for what players create, could that be taken by a later court as a successful argument that player-created content is owned by players? (Standard disclaimers: IANAL and NHIIALOPA).

[magicback]

3.

I think a practical issue from Marvel's commercial perspective is that a company making available another company's property should pay the property owner its commercial value.

Companies making Spiderman costume, pen, shoes, and such should pay Marvel a license fee. An online example would be an webhost making available images or tools to create images that looks very much like Marvel characters as part of a comic book fan site hosting package.

Some companies may be ok with individuals infringing on their commerical rights. Other companies, like the music industry, may not.

When commerical firms try to infringe on another firm's commerical rights for mass consumption however, then .....

I, however, think the suit is just a PR defense strategy. A red Honda roadster looks and performs like a Porsche boxster, but Prosche is not going around suing Honda for flattery by likeness :)

[Matt Mihaly]

4.

In essence, the open-ended universe of MMOs would be reduced to a limited set of tightly controlled theme parks.

What the...? City of Heroes is 'open ended'? I'm sorry, but this is all a matter of perspective, and from my perspective, City of Heroes is already a tightly controlled theme park. There's one activity past character creation: monster bashing. CoH (and of course all MUDs/MMORPGs to some degree or another) is tightly controlled by its code rather than legal threats. What's the difference? If someone is that interested in an open-ended virtual world, he sure as hell isn't playing City of Heroes. He's playing a text MUD or Second Life or whatnot. To me, Fred is complaining about the loss of something that never existed.

And I tell you what, LOTS of MMO/MUD/ operators already control their populations for copyrighted content. We've missed some over the years, but we sure as hell aren't going to let anyone wander around calling himself Gandalf and dressing in wizard's robes, or playing a mage with hourglass eyes called Raistlin if we can help it. What is the big-freaking-deal? Is it so bad to ask that users use their imagination rather than copy someone else's IP? I mean, fine, it's hardly the end of the world if CoH users are emulating Wolverine or the Hulk, but then, it's equally trivial if they cannot.

Be prepared when your children, heading out into the virtual backyard of the future, ask, "Mom, I want to play Spider-Man with my friends today. Did we pay for the Marvel license this month?"

Oh come ON. I realize you're just engaging in hysterics here but you're smoking crack if you think that sort of scenario is even a smidgen realistic.

--matt

[Jason Langlois]

5.

I often wonder how much of this is sparked by CoH/Cryptic/NCSoft claiming copyright on anything I, as a player, create in City of Heroes. So when I make a Wolverine knockoff, the company is claiming copyright on that and perhaps threatening Marvel rights?

[greglas]

6.

Matt> We've missed some over the years, but we sure as hell aren't going to let anyone wander around calling himself Gandalf and dressing in wizard's robes.

Why the passion for policing the word "Gandalf"? If you think IP law prevents us from pretending to be Gandalf online, I'd appreciate some legal authority for that statement. If you, as an admin, want to tell your players in your MUD not to call themselves Gandalf -- that's cool with me, you can make the rules, do what you want if you enjoy it.

But do you really think everyone running a MUD *has* to keep people from calling themselves Gandalf (if they also say they're a wizard)? What about people who call themselves Celebrian and Celebor? How about Steve? There's surely a fantasy character with that name too -- maybe even a wizard with robes! After all, lots and lots of fantasy novels have been written in the last 100 years..

[Cory Ondrejka]

7.

So Matt's question is an interesting one, right? Could you run a "comic book adventure" theme park where you paid to act your favorite comic book moments, which the park films. They wouldn't supply exact copies of Marvel heroes, but all the costume are there for you to put together.

Is this OK? Should the park owners have to police the costumes?

[Matt Mihaly]

8.

Greglas wrote:
Why the passion for policing the word "Gandalf"? If you think IP law prevents us from pretending to be Gandalf online, I'd appreciate some legal authority for that statement. If you, as an admin, want to tell your players in your MUD not to call themselves Gandalf -- that's cool with me, you can make the rules, do what you want if you enjoy it.

The reason we do it has nothing to do with legal authority. I'm just pointing out that lots of virtual worlds already do it and have for 25 years. I'm guessing Richard wouldn't have let someone play a character named "Goatfucker", for instance. (Pardon the profanity!)

But do you really think everyone running a MUD *has* to keep people from calling themselves Gandalf (if they also say they're a wizard)? What about people who call themselves Celebrian and Celebor? How about Steve? There's surely a fantasy character with that name too -- maybe even a wizard with robes! After all, lots and lots of fantasy novels have been written in the last 100 years..

Oh heck no. I don't care if you want to let people name themselves after home appliance product brands in your virtual world. "Frigidaire, the Angel Bane"

--matt

[Matt Mihaly]

9.

So Matt's question is an interesting one, right? Could you run a "comic book adventure" theme park where you paid to act your favorite comic book moments, which the park films. They wouldn't supply exact copies of Marvel heroes, but all the costume are there for you to put together.

Is this OK? Should the park owners have to police the costumes?

It took me awhile to understand what you were asking. What I thought you were asking is whether someone who built a virtual park inside SL and then charged people to enter would make SL responsible for policing the park owners to ensure they're policing the park customers. ;)

--matt

[greglas]

10.

Cory> So Matt's question is an interesting one, right?

Matt's question was "What is the big-freaking-deal? Is it so bad to ask that users use their imagination rather than copy someone else's IP?"

And the answer to that, I think, is "yes," it is a "big-freaking-deal" to require all new role-play activity to be completely original and non-derivative -- most MMORPGs are themselves derivative, as Richard has pointed out. But that's not a direct answer, because Matt is not just talking about a vague requirement to be original -- he's invoking a legal standard by talking about "copying someone else's IP." The problem here is that it isn't clear where that legal standard falls and this is a real outlier.

If the standard were that anyone owning a virtual space must police it for people simply calling themselves names that might appear in fiction--or for avatars that are intended to resemble characters from fiction, then yes, would be a big deal, because the non-commercial use of a personal name or a derivative character generally doesn't raise any significant issues under trademark or copyright. Copyright law, however, does potentially extend to prohibit personal, non-commercial infringements in some cases--regarding why this potentially is a big deal, see this by Professor Rebecca Tushnet, which deals with similar issues that arise in the context of fan fiction. (And regarding the scope of copyright and the implications of that scope for online communication, see that Amateur-to-Amateur paper that Dan and I just wrote.)

If we're talking about uploading The Lord of the Rings book or movie or a library of X-men issues to a website -- obviously, that's not fair use. It's infringement almost certainly and we're probably in DMCA territory with respect to the ISP. But that is not what is going on here. Professor Tushnet made some brief comments about the copyright claims against the individual players in the Marvel suit: "It's not quite the same as suing Crayola for providing the tools for kids to draw Wolverine, but it's definitely on the spectrum." I'm bound to agree.

I have kids who use Crayola crayon to draw Marvel superheroes. They also try to dress like them and role-play them on a regular basis. Should I tell them to be original and stop drawing & pretending to be Spiderman because they're "copying someone else's IP"? They are doing that, you know. And after all, as Matt says, what's the big freaking deal?

DS> Next up: License to hum a tune.

See this. "An infamous case in 1996 involved BMI/ASCAP trying to enforce the copyrights held in musical songs against performances by the Girl Scouts. BMI and ASCAP backed off after negative publicity, and Congress responded with exemptions for the Girl Scouts and the Boy Scouts."

Actually, the license to hum a tune has already come up in MMORPGs...

[Damion Schubert]

11.

And I tell you what, LOTS of MMO/MUD/ operators already control their populations for copyrighted content. We've missed some over the years, but we sure as hell aren't going to let anyone wander around calling himself Gandalf and dressing in wizard's robes, or playing a mage with hourglass eyes called Raistlin if we can help it

Incidentally, City of Heroes does the same. In fact, my understanding is that they asked DC and Marvel to provide lists of their licensed characters, which were added to the name filters and are currently being used by CSRs to find people working around the problem ("the Huulk").

[Celia Pearce]

12.

It is interesting that the scenario of large corporations suing consumers over copyright infringement seems to be a growing trend, and I think a dangerous one for all parties invovled. The "music downloading wars" is another manifestation of this, and all the industry has managed to do is further alienate consumers, therefore creating justification for--yes--downloading more music.

I find this ironic on a number of levels. Perhaps the most egregious is that the music industry--who tries to portray its artists as the "innocent victims" of audience exploitation--is notorius for "cooking the books" to avoid paying royalties to its artists. Those who have been around long enough will also remember the notorious "invasion of the LP snatches" of the 1980's when seemingly overnight, record albums evaporated from music stores and were replaced by CDs. If you recall, a number of artists filed suit at that point because while the product manufacturing costs went down, and the price went up by nearly a third, no such adjustment was reflected in the standard royalty payment. I think this sewed the seeds of foment and explains why a lot of artists are trying to find alternative solutions, rather than "defend" an industry that regularly exploits them.

Turning to the gaming sphere, player creativity is now clearly an inevitability. I think the expansive fan culture that emerged around Sims skinning, and clearly has contributed to the perennial PROFITABILITY of the game, supports the notion that this new producer/consumer (e.g., paying for the right to produce) is a huge and growing market, and a force to be reckoned with. I'm curious if anyone is aware of any similar suits in that context. According to Will Wright, the single most popular Sims skin is Britney Spears. Why hasn't Britney sued EA/Maxis? There are many other instances of Sims skinning which "could" feasibly be characterized as consumer copyright infringement, such as Star Trek and other skins associated with particular IP.

Now the flip side of the CoH scenario is that, if I'm not mistaken, according to the user agreement I signed when I first logged onto the game, NCsoft "owns" everything I produce in the game, so it logically follows that the so-called violated property, while created by a player, is owned by the company. On the other hand, who is actually profiting from the so-called copyright infringement? Can a case be made that MARVEL ITSELF might benefit? If I decide to player catwoman, is it not conceivable that this would lead me to buy MORE not LESS Marvel comic books?

Regardless of what the "law" says (and by that I mean, our convoluted understanding of the law as pertaining to "all things digital"), I don't think we yet fully have a grasp of the marketing of allowing or prohibiting players' imaginations. I wonder if Marvel has considered the potential consumer backlash? Since there is a significant overlap between comic book readers and game players, didn't it occur to them that by taking this tack they would only serve to justify further copyright infringement? Didn't anyone mention to them the old adage, "imitation is the highest form of flattery"?

I think companies that "own" IP really need to rethink their relationship to the imagination. If you create a successful fantasy world, isn't the ultimate reward that players appropriate, inhabit and call it their own? As a game designer, I can think of no higher honor. And in a practical sense, isn't this the best way to ensure market sustainability of a property (again, I invoke Star Trek)? Is being a "Trekkie" really a Federal offense?

In the end, it's a simple matter of karma. Whether Marvel succeeds or fails in this draconian maneuver, the damage they will have done to their reputation for trying will haunt them for years to come. Smart, well-informed, and blog-savvy comic book reader/gamers will take this as the throwing down of the gauntlet, just as music downloaders have. The fact is, users are smart; if Marvel was anywhere near as smart as CoH players, they would realize the folly of going down the same path as the music industry by sewing the seeds of their own undoing.

[Celia Pearce]

13.

PS. Has NCsoft gotten wind of TerraNova's flagrant violation of the CoH logo trademark on this page! :)

[Richard Bartle]

14.

Matt Mihaly>I'm guessing Richard wouldn't have let someone play a character named "Goatfucker", for instance. (Pardon the profanity!)

I didn't have to - MUD1 limited its characters to 9-letter names!

Of course, I did police names in MUD1. The university had rules about profanity, but even if it hadn't have had I would still have stopped names designed to provoke other players. A lot of names were banned automatically, but of course people could always subvert them. Actually, I wasn't all that upset that names could be subverted: if they couldn't be, people would find some less easy-to-spot way to subvert the game.

As for whether I stopped people from being called Gandalf etc., no, I didn't - hey, it might have been their real name (we DID have a real-life Conan play, although he wasn't a barbarian). If the Tolkien Estate wanted to sue, well, they'd have to sue the players, not me.

That said, in MUD2 when individual players were put into positions of authority and could be said to represent the developers then I did request name changes for obviously commercially-charged names (one of which was, yes, Gandalf!). Better to be safe than sued.

Richard

[greglas]

15.

Thanks for those comments, Celia. I've got some thought on the EULA issue, but they'll need to wait...

Re Richard's Gandalf, "better safe than sued" is the common reality of making business decisions in uncharted territory, but luckily for us all, those decisions don't need to translate into legal rules.

Technorati search turns up a couple letters.

[Cory Ondrejka]

16.

Greg> Cory> So Matt's question is an interesting one, right?

Greg> Matt's question was "What is the big-freaking-deal? Is it so bad to ask that users use their imagination rather than copy someone else's IP?"

Greg> And the answer to that, I think, is "yes," it is a "big-freaking-deal" to require all new role-play activity to be completely original and non-derivative...

Greg, using my lead in to imply that was what I thought Matt's question was is a little misleading, since I was specifically asking about the theme part idea. A theme we've seen is that behavior that is OK in the real world is not OK in the virtual, so I was wondering if a real world location that was as close as possible to a virtual one would be OK.

OBVIOUSLY this is a big deal and OBVIOUSLY I hope that Marvel ends losing this in a big way (I've written and spoken enough to make my position on strong copyright clear) but if we're going to discuss the issues, it seemed like a worthwhile example to consider. IANAL, so apologies if it wasn't.

[greglas]

17.

Cory, I was just kind of explaining my initial reaction to Matt's question and trying to respond to it. Re the theme park hypo you raise, there's no possible problem with it, as far as I can see, up until the point of the theme park records the player enactments. Once that happens (and it's not clear exactly what is going on with the recording), I would think we're in a situation analogous to the issues raised by the posting of fanfic on a website. The Tushnet article is really worth reading on that point.

[Cory Ondrejka]

18.

Greg,
Sorry, didn't mean to jump over you in response. Will read Tushnet.

[greglas]

19.

Cory, np.

The key point that I think might be missed here is that in order to attach vicarious or contributory liability to a party, you've got to demonstrate underlying activity that is infringing. This was the big issue in Napster that was missed in many discussions of Napster's motivations. Napster's behavior wouldn't have mattered if noncommercial file-sharing for personal use was not copyright infringement. But the Ninth Circuit decided that the underlying user activity was infringement.

Grokster, which Fred argued, was about a slightly different issue--was the mere provision (for profit) of software tools which enabled Napster-type infringement to occur something which could subject the provider to vicarious or contributory liability? Fred won that appeal for the defendants-- the answer was no, according to the Ninth Circuit, due to the Supreme Court's decision in the Sony Betamax case that allowed Sony to continue manufacturing video recorders.

This is a different fact pattern, but I think Fred is quite right to be pushing on the player aspect of this--which is why I think the Tushnet article is very relevant.

Btw, I've seen avatars in CoH lately named "Boycott_Marvel" and such. Should have taken a screenshot. :-)

[greglas]

20.

Ted> If NCSoft successfully argues it cannot be held liable for what players create, could that be taken by a later court as a successful argument that player-created content is owned by players?

No, not really, since the theory is secondary liability for player infringement. (There are direct infringement claims as well, but they seem to be based on the character of the Statesman vis-a-vis Captain America.)

Celia> Has NCsoft gotten wind of TerraNova's flagrant violation of the CoH logo trademark on this page! :)

I think we're okay: "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."

I was going to post some thoughts on the EULA issue, but I re-read the comments on Richard's post and it seems the issues raised by it have been worked over. (See also the EULA-topia thread.) The relevant bit is this:

Members can upload to and create content on our servers in various forms, such as in selections you make and characters and items you create for City of Heroes, and in bulletin boards and similar user-to-user areas (“Member Content”). By submitting Member Content to or creating Member Content on any area of the Service, you acknowledge and agree that such Member Content is the sole property of NC Interactive.

[CherryBomb]

21.

I think, as a practical matter, it's going to boil down to how many identifiable Marvel superheroes are playing CoH, and how closely they resemble the copyrighted images. Maybe somebody that plays the game could give me an idea.

greglas made an interesting point about the difference between Napster and Grokster. If there are a couple of characters that vaguely resemble Captain America, it's no big deal, but if it turns out that NCSoft has hundreds or thousands of Marvel clones on its servers, I think they've got problems. Also, they claim to own the images and charge customers a subscription fee to play with them, which sounds a lot like commercial use to me. Looking at the case in this way, I'm a little surprised that Marvel is claiming that it is the players are the ones doing the actual infringing, not NCSoft itself, since this raises murky "fair use" issues.

[Matt Mihaly]

22.

CherryBomb wrote:
greglas made an interesting point about the difference between Napster and Grokster. If there are a couple of characters that vaguely resemble Captain America, it's no big deal, but if it turns out that NCSoft has hundreds or thousands of Marvel clones on its servers, I think they've got problems. Also, they claim to own the images and charge customers a subscription fee to play with them, which sounds a lot like commercial use to me. Looking at the case in this way, I'm a little surprised that Marvel is claiming that it is the players are the ones doing the actual infringing, not NCSoft itself, since this raises murky "fair use" issues.

I haven't played CoH since July or so, but I remember seeing LOTS of ripped-off Marvel characters, from Wolverine to lesser-known ones like Bucky or Deadpool.

--matt

[Sparks]

23.

While this seems a little draconian on Marvel's part, after a little bit of thought I can see why it is. City of Heroes is, after all, not only inspiring a comic book but a great many players are putting together 'online comic books' of their missions.

Someone pretending to be Wolverine or Spider-Man in their backyard doesn't really infringe on Marvel's IP that much. Heck, even people playing Marvel characters on an online MUD/MUSH/MUX doesn't really create a huge issue for them.

But people ripping off Marvel characters for an MMORPG where the adventures are sometimes turned into comics and published online... or even in print, for some of them? Even moreso considering that NCSoft claims to own the appearances and stories of all the characters on their servers? Yeah. I can see Marvel -- a comic publisher -- having some issues with their IP use there.

And really, I can sort of see it being a legitimate concern in that case, even if I don't much like the precedent.

[Ajdaha]

24.

All I can say is, that the only way humans learn and create is from immitating parts from their experiences in life. So unless, one coppies exactly, the hulk (for example) pixel to pixel, attribute to attribute then this person has done nothing wrong. I don't care how much profit Marvel wants to gain from this, they have no grounds on which to sew. Screw Marvel, I shall not stand for this, and I don't even play COH. Or read comics.

[Kryten]

25.

How about turning this on its head - what sort of legal stand / comback would a player / NC Soft have if Mavel / DC created a comic book hero that was clearly based on an existing player created character in CoH?

[wandrew]

26.

This story has been discussed on Australian blog censoredculture.org: http://censoredculture.org/index.php?p=15

[infinity]

27.

I have to wonder if this really goes beyond "you took our idea". Couldn't this boil down to the fact that Marvel is pissed they didn't come up with the idea of a MMO based on their heros? Basically Marvel is sueing NCSoft with hopes of shuting the game down so they can put out their own similar product. I've seen this done before. Where's then is the rights for NCSoft's IP for a hero based MMO?

[Pelias]

28.

Since then it's not allowed to have or use musical instruments?
OR since then producer of guitars would be responsible for what every buyer will play on them?

If US law is troubling themso far, register SWG owner-company in Palestine or Uganda or any EU country and problem is solved.

[Chas York]

29.

So many comments... where to focus?

First, City of Heroes: To Jason Langlois: It's not about the NCSoft copyright claim that CoH makes (which is, by the way rather common in MMORPG's) as this wouldn't transfer over infringing characters to NCSoft, as you can't waive these infringements over. The claim also, in no way, argues that this has any bearing.
-----

For you Non-CoH'ers out there, it's not that the developers have carbon-copy clones of the characters ready to use. It's a question of what, exactly, makes up a hero's identity?

Sure, you can claim that Wolverine is a guy with claws, regeneration, and an attitude. However many heroes- even heroes from other comic companies make use of claws remarkably similar to Wolverine's (some even retract). Regeneration is also commonplace. Attitude? Finally, we have a reason to ban all those annoying players....

If it's about appearance, then what costume truly defines Wolverine? The yellow-blue classics? The brown-tan one? One of the dozen X-Men bodysuits used over the years? The leather jacket and jeans? What IS the essential wolverine?

The Marvel Lawsuit remarks that Statesman's helm is remarkably like Magneto's, (although they're claiming that Statesman's similar to Capt America..) Now, I've seen that same helm style in DC's comics, I'm rather certain there are similarities in Image Comics, and even Dark Horse has similarities.

Where are these suits?

---
The real kicker for me is... think about what it means if Marvel WINS: It means that they successfully argued that some player creations in this MMORPG are IP violations of their own. It would stand to reason that the non-infringing characters (names, appearances, and powersets) are now IP that MARVEL and other comic companies would have to be careful NOT TO infringe in future work (who owns them is subject to another discussion).

I read somewhere that CoH had over 9 million characters created since launch. That's 9 million registered names of heroes. 9 Million costume variations. Ok, there are probably plenty of clones and matching names across servers.... but still...

Last I read, Marvel had well over 5,000 characters (including ones like "squirrel girl") but they'd still be dwarfed by the City of Heroes database.

30.

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31.

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