The EFF is keeping copies of various Marvel v. NCSoft pleadings here. It appears Marvel has filed a Second Amended Complaint, and NCSoft has responded with an amended Motion to Dismiss.
I haven't done a line-by-line comparison of the previous and amended pleadings, but it seems the major difference is the inclusion of exhibits introduced by Marvel to demonstrate the "literally thousands of infringing Heroes roaming the streets of Paragon City at any given moment." (See the Complaint, para. 40.) NCSoft has moved to strike certain portions of the exhibits because it claims Marvel created the infringing heroes itself. (See the Motion to Strike.)
In other news, Penny Arcade and Slashdot chimed in on the issue, as did commenters here (152 at last count). PvP Online has series of strips depicting a trial & mistrial, complete with star witnesses. And game girl advance has a feature where Steve Bowler does his best to make some Marvel heroes.
While it is interesting to read all these gut reactions, it is important to remember that copyright and trademark are complex statutory regimes and determining infringement under either isn't simply a matter of what is called to mind when we see a superhero with a cigar and claws that go "snikt." In other words, intellectual property is not simply about one's general sense of the ethics of free-riding or misappropriation. I'll stop at that -- if you're curious, my lengthier thoughts about the social interests served by trademark and copyright law can be found here (with certain digressions on V.C. Andrews and the Monkees).
Update: If you want a little crash course on the legal issues here, check out this Foley & Lardner article.
I think it's the Internet troll in me, but when I read about this suit I chuckle. Let me explain. There's a comic book character I like named Stargirl. I have to admit, I've attempted to recreate her in "City of Heroes", but it's quite hard. However, long before CoH came out, I had a version of her in Second Life.
It just seems like going after "City of Heroes" is a publicity stunt or something. There's no way they can win.
Posted by: Andrew Burton | Feb 10, 2005 at 00:21
The "Motion to dismiss" linked is very 'enlightening'. Marvel going into COH, creating infringing characters, taking snapshots and then attempting to pass these as evidence of 'thousands of infringers' speaks volumes of the professionalism of the Marvel team... Incredible.
While its undeniable you can create a character that would look enough like a Marvel character to be considered infinging, the plaintiff is asking the court to focus on the user-decision paths that would specifically lead to infinging characters, without regard to the entire tree stucture of possibilities. Akin to saying a keyboard infinges the Hewlett Packard "HP" trademark in just two steps, because you can type an H, followed by a P; Without weighting the posibilities of the other paths or the relative amount of possible infinging vs non-infringing creations.
Discrete systems, such as *all* existing modern computing systems, have a limited set of possible states. There is no such thing as a 'blank slate' in a computing system - Further in this direction, should we accept the view that the universe exists as a discrete quantum-mechanical system, then nothing will fit the definition of a 'blank slate with endless possibilities'. Many? Yes. Endless? Not by a long shot.
Anyway... If only common sense had something to do laws...
I believe Marvel is -perhaps unwittingly so- exposing themselves to taking a major blow back home. The court might find that the most popular 'heroes' Marvel owns the IP to and is claiming infringement upon, or their general features, are so embedded in the general culture as to be considered 'generic' and no longer a distinguishing 'mark'.
Posted by: Andres Ferraro | Feb 10, 2005 at 01:34
Andrew Burton>However, long before CoH came out, I had a version of her in Second Life.
Just as well for Linden Labs that NCSoft is far richer than they are, then! Otherwise, they'd have been sued first.
Richard
Posted by: Richard Bartle | Feb 10, 2005 at 03:30
Would Marvel have any right to sue them if NCSoft had expanded it's ability trees to the point where you could customize literally anything you wanted instead of pre-built template trees?
I'm pretty sure Marvel would have to say they own "comics" as in all of them to win a lawsuit in that case, although, personally I don't see much difference either way. Marvel doesn't seem to be making a very bright move, I wonder when people are going to realize being sue happy doesn't ever really solve anything...
Posted by: Lee Delarm | Feb 10, 2005 at 09:04
Hello. Mi name is Juan Terranova. My family is from Italy, but we all live in Buenso Aires since 1949. I Hace a ciberplace in www.juanterranova.com.ar
Juste a coincidence.
Posted by: Juan Terranova | Feb 10, 2005 at 12:48
I wonder...if I started a business hosting a monthly costume party and charged $15 a head to get in, would I/could I/should I be held responsible if one of my guests choose to wear a homemade Spider-Man costume? Would the answer change if he wore a licensed costume? If I provided a variety of costume accessories and someone was able to fashion a crude but recognizeable costume from a red ski mask and t-shirt? What if it were a LARP party that allowed the guests to participate in storylines?
I'm just wondering if the perception of infringement becomes more or less clear in a different context, and how the two scenarios differ. Is it the size of the audience?
Posted by: Theo | Feb 10, 2005 at 16:31
Andres said >I believe Marvel is -perhaps unwittingly so- exposing themselves to taking a major blow back home. The court might find that the most popular 'heroes' Marvel owns the IP to and is claiming infringement upon, or their general features, are so embedded in the general culture as to be considered 'generic' and no longer a distinguishing 'mark'.>
I doubt Marvel is doing this unwittingly, as it is exactly lawsuits like this which, as I understand it, make it clear that Marvel is actively defending their trademarks in order to prevent them from falling into the public domain. Win or lose this particular suit, they establish that they will do what they can to defend their property as their own.
Posted by: anonymous | Feb 10, 2005 at 19:31
marvel sucks
Posted by: dmanz | Feb 11, 2005 at 04:13
Theo> "I wonder...if I started a business hosting a monthly costume party and charged $15 a head to get in, would I/could I/should I be held responsible if one of my guests choose to wear a homemade Spider-Man costume? Would the answer change if he wore a licensed costume? If I provided a variety of costume accessories and someone was able to fashion a crude but recognizeable costume from a red ski mask and t-shirt?"
If you provided the homemade outfits and charge at the door, you might be held liable. To put it in perspective, though, take your last hypothetical mentioned above and say you provided thousands of different choices. From those choices, someone could create a good replica of Spiderman. Also say you did this on a grand scale, reaping thousands of dollars of profit (in total, not just from Spide). The argument is that you are profiting from Marvel's IP. A very, very thin argument but not without some basis as you are profiting in part from others' infringing actions.
It's interesting to observe from Steve Bowler's article that NCSoft is apparently attempting to curtail some or all of these infringing activities. I well imagine that will weigh in against Marvel succeeding in its suit.
Oh, and for the record, Marvel rocks... except when they do bone-headed things like this. (Although it does mean more work for the lawyers and, me soon--hopefully--being a lawyer, maybe that isn't such a bad thing...)
Posted by: Alan | Feb 11, 2005 at 09:59
As a CoH player, I can attest to both the proliferation of Marvel (as well as other) character imitations, as well as the devs' commitment to policing them. The most common copied characters I've seen are Hulk, Captain America and The Tick. In the official forums the devs have specifically asked players to report copies of trademarked characters, and I'm told they act on them quickly. What more could Marvel ask for?
Is it true that they HAVE to fight this battle or risk losing their properties to the public domain?
Posted by: Theo | Feb 11, 2005 at 10:20
Alan> If you provided the homemade outfits and charge at the door, you might be held liable.
Have you taken Intro IP law yet? If so, what's your theory of liability in that situation? Do you have any cases that you think would support that proposition? And if you're thinking copyright, how would this stuff factor into your analysis?
Just curious.
By the way, there's a good Foley & Lardner article that provides a crash course on the substantive legal issues that are raised by the lawsuit. You'll see from the length why I haven't bothered to talk much about them. The conclusion, however, that this case has important implications outside the scope of MMORPG superhero games, is something I want to emphasize:
Posted by: greglas | Feb 11, 2005 at 11:04
"I doubt Marvel is doing this unwittingly, as it is exactly lawsuits like this which, as I understand it, make it clear that Marvel is actively defending their trademarks in order to prevent them from falling into the public domain."
True that they *have* to enforce their IP or the consequences are really bad for them, however, every time they do this they subject themselves to the scrutiny of the court, which may find for or against - succinctly: You pick your battles considering all factors.
Posted by: Andres Ferraro | Feb 11, 2005 at 11:32
From the earliest conception of Copyright Law it has been concerned with protection. It was concerned, not with the authors of copyright material but rather the publishing companies that turn copyrighted material into a commercial proposition. This approach is reflected not only in British Copyright law but in the approach adopted in the United States
The owner of a copyright protected work is entitled the exclusive right to do certain restricted acts. These include reproducing the work in any material form, including transient and incidental copies. That proviso was added specifically to deal with the needs of the computer software industry. When digital content is accessed and used the computer of the user will make transient and incidental copies in the read-only memory of the hard-drive. On the basis of such copies the whole program of granting and distributing licences for use of copyrighted material on computers was established.
The making of reproductions of copyrighted works is the exclusive right of the copyright owner and only persons permitted by them through licence agreements can make reproductions. It is an infringement of copyright for a person to do any of these acts without the consent of the Copyright owners and The widening of copyright protection to apply to digital content has served as the source of a lucrative licensing industry, where copyright holding companies allow the copying and the distribution of their copyrighted work to the public in valuable licensing agreements in order to give the work real commercial value in a potential billion dollar industry.
However, the right of distribution is directly linked to the number of copies permitted by the copyright owner, So it has traditionally suited the established distribution industry but doesn’t work so well in the digital environment where distribution can be in immaterial form and performed by almost anyone with appropriate software and an internet connection. In reaction to the potential economic damage caused by unlicensed distribution of their copyrighted material on the internet, many of the large corporate holders of copyright have sought to uphold their rights in the courts.
However, not every use of a copyright work requires consent. The Copyright legislation is anxious like other types of Intellectual Property legislation to strike a balance between the interests of the various parties involved in it; essentially the copyright owners on one hand and the users of copyrighted work on the other. Copyright owners have sought to bring their concerns to bear directly on the software industry, whose technological innovations have made it possible for the copying and distribution of unlicensed works by their users. However, the exclusive rights granted to copyright holders are not without their exemptions and the software industry has fought hard to maintain that they are exempt from liability, protected by statutory and common law limits to the copyright monopoly.
In the recent Marvel Case, Marvel has asserted that NCsoft in its City of Heroes(R) game is contributory and vicariously liable for copyright infringement because it has designed the game so as to enable and encourage users to construct their avatars in the form of Marvel comics Copyrighted characters. In essence, Marvel is suing NCsoft for creating a game in which players can design their own costumes for their characters in a way Marvel says infringes their Intellectual Property Rights.
“Plaintiffs contend that Defendants created, marketed, distributed and hosted a computer game that allows players to play on-line and create characters that are virtually identical in name, appearance, and characteristics to characters owned by plaintiffs”
Continued at HTTP://LexusNova.blogspot.co.uk
Posted by: Mac | Dec 08, 2005 at 13:34
dmanz: "marvel sucks"
marvel > dc
anyday of the week, and twice on sunday...
Posted by: jayson | Dec 08, 2005 at 15:55