Marvel has decided that NCsoft and Cryptic Studios have gone too far in allowing players to create “clones” of Marvel characters in City of Heroes. USA Today story
The New York-based company also took issue with the ability of players to go so far as to name their superhero creations after Marvel comic book characters.
Marvel claims the firms’ are responsible because the game is played on servers operated by the companies, raising the question of whether a company is responsible for their customers’ actions on its computer server.
Marvel also claims the companies have disrupted its “existing and future” business prospects for licensing its characters in video games similar to City of Heroes.
The suit may initially appear to be frivolous, but it could be argued that it would be highly foreseeable that users may attempt to ‘clone’ existing superheroes and breach copyright.
The issue is what duty NCSoft owes to these rights holders, and whether there has been a breach of that duty. The initial battle lines for trial would, probably, be drawn on defining what a reasonable duty would be.
If NCSoft fails to make its case, then it would be a question for the assessment of damages, and this is where I would expect to see Marvel’s case run into a little more difficulty. My opinion is that a fan copying a Marvel hero into NCSoft’s world is not causing Marvel to lose any sales (could it even be vice versa?). The issue of prospective licensing is a bugbear, giving rise to similar causality issues.
Is Marvel in financial trouble and trying to put some numbers in the books, or are they trying to be the Nintendo of the comics world?
You have to agree to Terms of Service before logging in that includes this:
You may not select as your Character Name the name of another person, or a name which violates any third party’s trademark right, copyright, or other proprietary right, or which may mislead other players to believe you to be an employee of NC Interactive, or which NC Interactive deems at its sole discretion to be vulgar or otherwise offensive. NC Interactive reserves the right, in its sole discretion, to (1) delete or alter any Character Name or (2) terminate any license granted herein, for any reason whatsoever, including, without limitation, any suspected or actual infringement of any trademark or trade name right, copyright, or other proprietary right.
And they do police names/copycat characters because people have gone onto the official CoH forums to complain about being forced to change their names or having their clone characters deleted.
If you loan me a pencil and tell me “Hey, use this to draw your own superhero comic,” and I draw my own version of X-Men, and you then start charging people money to see my X-Men comic, I would guess that they would. I’m sure Marvel’s claim is going to be centered around not just “You let Joe Blow design Wolverine,” but also “You’re charging all these people money to play in your world, and one reason people like to play in your world is because they can play as, or with, ripoffs of our characters, and you know it.”
This isn’t just a question of them selling a product and then someone uses it to violate copyright (although as I understand it, even THAT can get you in trouble, if it’s pretty clear that the purpose of your product is just to allow copyright violations–check out MGM v. Grokster). In NCSoft’s case, there’s at least an argument (I’ve never played COH myself) that NCSoft is selling the infringement-enabling product, and THEN turning around and charging people money to access the infringing material, because NCSoft charges people to access their server. If there are customers out there who really want to play Marvel Online, and they log into COH because they know they can play clone characters and their friends can play clone characters, that’s money that Marvel could have made (at least in licensing, even if they weren’t going to make their own game) which is now lost. I don’t know anything about the facts of this case, but I can certainly see a line of argument / set of facts under which Marvel would win.
Sounds like a head on collision between IP law and the Telecommunications Act/Communications Decency Act which gives civil immunity to ISP’s and similar entities for “third party content”.
I think Marvel is going to have a tough fight… I mean if a charater is called say Big Burly Guy with Green Tinted Skin…and he just happens to look like the Hulk kind of… well then he is not really the Hulk is he?
It seems that they are not using or even advocating the use of Marvel characters, it is just that the charater creation is so good that you can make a character look like almost anything you want. Which is one of the strong points of the game.
It is going to be tough for Marvel because they are really not creating charaters and therefore not really infringing on their copyright…
Then again, simply taking out a few textures or clothing items from the charater creation might solve the issue.
You can’t do exact replicas of existing superheroes in CoH. The tools aren’t there in the character builder. You can make something close, but that’s it. I tried to make a Daredevil character, for instance, but his horns were too long and he had a single, big yellow “D” on his chest. It was obvious what I was shooting for, but no comics fan would have looked at me and thought, “Hey, it’s the real Daredevil!”
So the issue is whether a person can do “his own version” of a superhero without running afoul of IP law. I suspect he can, and I also suspect the lawyers for Cryptic and/or NCSoft hashed this out in fine detail before development even began. I cite as evidence the very fact that you can’t duplicate existing superheroes with the character builder.
EDIT: Nor can you even give your character the same name as an existing superhero in CoH. My Daredevil guy had to be named Daredevill or something like that.
I sometimes see complete ripoff characters in CoH (Hulk_2093, SpideyMan, etc). However, I don’t recall seeing them outside of the low-level zones, which leads me to believe that these characters have a short half-life (<-- copyright violation?), either because people get bored playing a clone, or the mods rename them GenericHero1643 or delete them entirely.
I think NCSoft takes copyright violation seriously enough, so screw Marvel.
Yeah, but when you say “complete ripoff characters,” you just mean similar, right? When I played, there were just not the textures available to make an exact replica of, say, Spiderman.
Well, stronger than similar, I’d say. You’re right that you can’t make exact replicas, but people try really hard. You can’t really make a decent Spiderman given their system, for instance. The distinctive web texture and the eyes (and the animations) just aren’t there. Other characters are less distinctive, so you can do a much closer approximation.
So I’m talking about the people who make characters with names and appearances as close as possible well-known comic book characters. I don’t tend to see them at higer levels (or even at lower levels, lately) which leads me to believe that the moderators aggresively enforce the rule.
It would be very bad for games if Marvel wins this suite… that would mean that CoH simply couldn’t really exist as you can in theory make approximations of many many trademarked characters… superman? Even conan the Barbarian… what’s next? Is Tolkein enterprises going to sue Everquest 2 because you can make a character that looks like Aragorn?
