Marvel Battles Role Players

November 16, 2004 8:54 AM

Marvel Comics sues NCsoft and Cryptic Studios, the makers of the online game City of Heroes for player created content they feel infringes on their copyright. If Marvel wins the case, all game developers can expect to be held responsible for the behavior of their players. This case covers similar ground to the proposed Inducing Infringement of Copyrights Act, which is before a Senate Judiciary Committee. Introduced to crack down on illegal file sharing on peer-to-peer networks, the bill would hold technology companies liable for manufacturing products that encourage people to infringe copyrights. The language of the bill caused an uproar among technology and consumer advocates who claimed it would kill innovation. If successful in their lawsuit, would Marvel be able to sue the makers of pens and pencils for producing products that allow people to create pictures of copyrighted characters?
posted by Stuart_R (31 comments total)

I think this is awesome.

I mean, it's ridiculous, but it's awesome. The arguments made for the draconian rules applied to file sharing software clearly apply here. Marvel has the copyright on certain super personas, CoH makes easily usable software that allows you to recreate the characters for non Marvel use. So if you're going to say it's illegal to produce filesharing software because someone could violate copyright, you've got to say this is too.

And it's clearly spurious. The players of the game don't make any money off the ability, the makers of the game impart no advantage or incentive for the ability, etc etc.

My hope is that there's enough less money and passion involved in the case that people can see how silly the whole thing is, and this zephyr of sanity may then propagate back to the bigger issue.

It's enough to make me want to play the game just as a show of support, though I've managed to avoid it thus far.
posted by freebird at 9:12 AM on November 16, 2004

You would think that it's cool ordinary people have been so captivated by Marvel heroes that they try to emulate them in a massive just as much as they do in a convention.

This is dumb.
posted by linux at 9:18 AM on November 16, 2004

Having played CoH for a couple months, I can honestly say that I saw this coming a mile away.

I can also tell you that Marvel has a serious case if this is well documented enough. The point is not that the players make money, its that NCsoft makes money by charging players for the priveledge of pretending to be their favorite Marvel characters.

I expect alot of this:

If successful in their lawsuit, would Marvel be able to sue the makers of pens and pencils for producing products that allow people to create pictures of copyrighted characters?

To show up in the thread, but be real, people. If it can be shown that a) players made Marvel heroes (they did) and b) NCSoft did not police their system and disallow characters that violated IP laws to insure that they were not wrongfully profitting from Marvel's work, then Marvel wins.

The facts are this: NCSoft profitted through the use of Marvel copyrights and IP. If this use was unwitting (they were unaware that players were handing them $15/mo for the priveledge of suiting up as marvel heros) than it is only because of gross negligence on their own part. The facts in this particular case are pretty cut-and-dry, and I'm pretty much convinced that Marvel wins.

On Preview: the difference between this and a convention is that it is not unreasonable to assume that given the success of CoH, MMORPGs in general, fictional or film-world based MOOs such as Star Wars Galaxies, the Matrix MMO, and the Lord of the Rings MMO, it is not unreasonable to assume that Marvel would like to someday make a game of this sort, and they can't allow NCSoft to continue to profti off a whole bunch of Punishers and Hulks run around if they someday want to come out with a Marvel product designed to profit off the same thing.
posted by ChasFile at 9:29 AM on November 16, 2004

Next up: cosplay convention organizers.
posted by smackfu at 9:30 AM on November 16, 2004

Also, let me just do this pre-emptively:

What's next, they sue my ISP for allowing me to plan a terrorist attack? or they sue Adobe because I Photoshopped Mickey Mouse having sex?

Did you make alot of money doing it? Then yes.
posted by ChasFile at 9:38 AM on November 16, 2004

i think this sucks. it's not like NCSoft provided Marvel templates and players used them. they provided a tool that has such a wide range of customization that players creative enough made their favorite characters.

however, ChasFile, if Marvel decided to start a MMORPG in their universe, i highly doubt it would be all that successful. after all, everyone would want to be Spidey or the X-Men...in CoH, the generic nature of the universe allows you to be so much more.

i hope Marvel reaps what they sow. fan angst, that is.
posted by NationalKato at 9:39 AM on November 16, 2004

ChasFile- I'm in the Open Beta for World of Warcraft, which is derivative of Lord of the Rings the way pretty much EVERY dragon-slayer fantasy-themed game is.

You can't even sign up for the game without scrolling through pages of copyright issues- the game actually has a naming policy which forbids you from any of your characters to have copyrighted or referenced-copyright names. In other words, wizards aren't allowed to name themselves Gandalf, etc.

The problem NCSoft has here is, for one thing, that Marvel's completely right. I hate to say it, but they are: they're charging for a game that lets you mimic Marvel properties. The bigger problem is that I don't see how they can stop this from actually happening. The characters are customizable, which means if you have the option of a Spider-man-like mask, the option of Spider-Man-like tights, and the option of having Spider-Man-like powers, then odds are someone's going to (gasp!) try to be Spider-Man.

Doctorow's analogy is simply irrelevant- people aren't encouraging a child to dress up as Spider Man for Halloween, and even when they do, they're not making money off it beyond the occasional elderly couple that gives you pennies instead of candy. (God, FUCK those guys. Seriously. Pennies. Goddammit.)

Here, we have a company that makes, sells, and advertises a game in which the principal feature is creating your own superhero. And then they provide the pallete to create copyrighted ones.

That said, I think there should be middle ground. Based on the original VCR lawsuits, I don't see how NCSoft can be liable, or required, to monitor that Marvel's copyrights aren't being infringed- that's Marvel's job, and if they want to hire guys to run around CoH making sure no one looks like Wolverine, go for it. But the gamemakers should alert customers that if Marvel complains, their characters are going to be deleted, without refunds.
posted by XQUZYPHYR at 9:44 AM on November 16, 2004

XQUZYPHYR makes good points. put some licensing details in your (NCSoft) copyright language to warn the players. then just delete the ones with naming issues.

as for powers, well...that's a little hard to police. i mean, who really owns the rights to 'laser beam from the eyes?'
posted by NationalKato at 9:47 AM on November 16, 2004

NationalKato- no one. It's why DC and Marvel can both have characters with super-healing powers, etc. Marvel can have a character that can fly and bend steel; they just can't dress him up in a blue suit with a red cape. Attributes are only protected when they're inarguably connected to the actual trademarked item. The trademarks's the label, not the receipe, so to speak.

Oh, and just to be a catty bitch, I'm still giggling at the last line of the Wired article... I love him to death, but part of me thinks if Cory Doctorow loses a sock in the dryer he declares it "a full-scale challenge to free creative expression."
posted by XQUZYPHYR at 9:52 AM on November 16, 2004

But you can't make a character that looks like, behaves, and is named the same as a Marvel character! The closest you can get is Wolverine, I guess, with some creative costuming you can make a guy who if you squint kinda resembles Wolverine's distant cousin, with the scrapper claws and regeneration power sets you can have a guy with claws that kinda fights folks (and last I played was a gimped character), and with a name like "W0lf3rin3" you can establish your l33t Marvelocity. Though even then, NCSoft polices the names and characters to watch out for this kinda thing.

I have not seen any of these knockoffs make it past level 14 or so. But if Marvel has a MMORPG of their own, I bet most folks would go over there to play their Wolverines and Spinder-Men. If, of course, Marvel would let the dirty hands of the layman touch their hollowed icons.

But if Marvel is looking to sue folks who swiped their ideas, why arn't they going after The Incredibles for Violet, who like the Invisible Woman, can vanish and make force fields? Oh. Right. Disney is scarier than NCSoft.

I'd pay cash money for DC to run a story about Captain Marvel trying to sue some computer game designer for making a character that looks like him.
posted by robocop is bleeding at 9:52 AM on November 16, 2004

"'Statesman,' a character strikingly similar to Marvel's Captain America (right down to the trademark large white star on his chest and shield), prominently appears on the front of the City of Heroes box and guides the user through the 'creation' process," argues Marvel's complaint. "Defendants' infringement is so brazen that their only attempt to disguise 'Statesman' is to give him a helmet that is nearly identical to the trademark helmet worn by 'Magneto,' another of Marvel's X-Men characters."

I think 'strikingly similar' is a bit of a stretch. Apparently Marvel's lawyers also believe they own the copyright to any comicbook character with a costume based on the American flag.

I've also been told that whenever you start up City of Heroes you have to agree to the terms of service -- which explicitly forbid creating copyrighted characters. Whenever copyrighted characters are found in the online world, they're also removed.

What about games that allow players to upload their own character "skins"? How could you possibly monitor something like that?
posted by Stuart_R at 9:53 AM on November 16, 2004

If it can be shown that ... NCSoft did not police their system and disallow characters that violated IP laws to insure that they were not wrongfully profitting from Marvel's work, then Marvel wins.

If you played for a couple of months you should know that indeed any time someone tried to recreate a copyrighted character the player was forced to rename it. Countless Hulks, IncredibleHulks, 1ncredibleHulks, Hulk.s, were renamed to genericHero1 ... genericHero999 or whatever.
posted by Bonzai at 10:15 AM on November 16, 2004

Okay, kids.

The City of Heroes Terms & Conditions forbid the creation of copyrighted characters. This does not mean that you cannot use the character creator to build a fellow in a head-to-toe red-and-blue union suit who might resemble Spider-Man at 30 paces -- you can. But if you try to name him "Spider-Man" -- you can't. If you try the creative route and call him "5p1d3r-Man" -- then you might make it into the game. But will you be able to climb walls? Spin webs? Sense impending danger? No. So you will have the online equivalent of some jackass running around your neighborhood in off-brand Under-roos.

If NCSoft has done anything wrong, it is just that they've been unable (so far) to effectively monitor the more inventive "cloning" practices of their more unoriginal players. The naming restrictions will stop "Superman" or "The Hulk" easily enough, but aberrations like "S00P3Rman111" or "Teh Hulx0r" will certainly slip through. Already, NCSoft has issued a request via its message boards to all players that they do a bit of DIY vigilence and help out by reporting any copyright infringement they see in-game.

And Marvel is just flexing, like they have before with other companies. If you read carefully, you see that their concern is not with loss of comic book sales or movie ticket income, but rather with their in-development plan to produce an MMO of their very own. It shouldn't surprise anyone to hear that Marvel decided to go the MMO route in 2002 -- a year or so after Cryptic announced the initial development of City of Heroes. So naturally, somebody at Marvel is saying to themselves, "Why the heck would anyone want to pay for our also-ran MMO when they can already live out their own Saturday Morning Cartoon fantasies with City of Heroes? We better get "our share" of the money some other way."

For my part, I'm not buying anymore Marvel product for awhile, and neither are any of these people. This is unnecessary bullying and in the end it just hurts the comics-friendly people that keep Marvel in business.
posted by grabbingsand at 10:19 AM on November 16, 2004

American Eagle and Liberator are comic characters created in the 1930s by Standard / Better / Nedor who also have costumes based on the American flag. These characters are now in the public domain.
posted by Stuart_R at 10:27 AM on November 16, 2004

well, aside from the flexibility of the character generator, the inclusion of particular specific super powers, like the scrapper with blades embedded in his hands, is more than a coincidental steal from the copyrighted character of Wolverine in the X-Men. On this point, Marvel has them dead to rights.

What NCSoft should have done is worked out a licensing deal with Marvel, that would let players really go nuts. Marvel would get money, NCsoft would have an even more compelling title, and everyone would have won.
posted by crunchland at 10:30 AM on November 16, 2004

Captain America originally had a shield that matched the character called "The Shield". The makers of The Shield threaten to sue Marvel so Marvel made the shield round.

Also, the people who say Marvel is right haven't been playing COH. COH are actually really good at finding copyrighted characters and deleting them or changing there names. How vigiliant should this company be? If you made a character and never played it, then there is a good chance the NCSoft wouldn't see it. However, play any character that too closely mimics a copyrighted character and you won't get pass level 5.

Marvel also has a character library that contains 4000 (or is it 40,000?) character that are copyrighted. An obscrue character that hasn't been used by Marvel for 40 years might get through the censors.

I think Marvel is just getting overzealous here and they're going to have a really hard time showing that NCSoft were not vigilant in policing their servers. The whole thing is stupid and I'm guessing that the Marvel lawyers are getting bored and needed to justify their reason to exist.
posted by Stynxno at 10:39 AM on November 16, 2004

like the scrapper with blades embedded in his hands

Are they embedded or just worn? i thought Wolverine's claws were based on some kind of real martial arts weapon...

Also worth noting that Marvel isn't the only company with lots of superhero costume designs copyrighted -- there's also Dark Horse Comics, CrossGen Comics, Top Cow and DC Comics (plus others, I'm sure).
posted by Stuart_R at 10:47 AM on November 16, 2004

They're embedded and when unsheathed the character strikes a very familiar pose.

I don't think "a guy who regenerates and has claws in his hands" can be copyrighted. "A guy who regenerates and has adamantium claws in his hands that was used by the government as part of a Weapon X program who says 'Bub' a lot and is named after a fierce mammal" could be.
posted by robocop is bleeding at 10:57 AM on November 16, 2004

So any game that can be highly customized to make your character resemble a character you really like is going to be subjected to this stuff? Even when the rules of use say you can't recreate copyrighted characters?

Marvel should license their characters to the game and then they can get some damned money which is what it seems like they are after.

Or they need to make a Marvel City of Heroes version with NCsoft anmd Cryptic.
posted by fenriq at 11:14 AM on November 16, 2004

would Marvel be able to sue the makers of pens and pencils for producing products that allow people to create pictures of copyrighted characters

I played CoH in beta and, unless the character generation portion of the game, which I'll admit is insanely detailed, has changed dramatically- like they just let you fire up 3D Studio Max and build characters from scratch- then the pen and paper analogy is ridiculous.

CoH does include body parts and costume parts that are very similar or outright copies of segments existing, copyrighted characters. IANAL, so I can't tell you what kind of infringement on Marvel's copyrighted and trademarked works are, but I saw this coming the first time I saw faux Marvel characters running around. I don't think this is a case of bored lawyers as much as Marvel protecting their interests.

BTW, the game is the best MMO I've played so far (I didn't get in on the WoW beta, which I'm told is the shit). If I had the time, I'd be playing.
posted by eyeballkid at 11:26 AM on November 16, 2004

Let's be precise here kids. Characters cannot be copyrighted, they can only be trademarked. DRAWINGS or other representations of characters can be copyrighted.

I haven't bought a Marvel comic in many years, but I've gone to see all the movies. :)
posted by zoogleplex at 12:07 PM on November 16, 2004

I'm not sure about that zoogleplex. Here's a post on Neil Gaiman's blog about the ruling in his copyright lawsuit vs Todd McFarlane. The issue was who owned the copyright to the characters Medieval Spawn, Cagliostro, and Angela, the three characters he created in his script for Spawn #9.
posted by Stuart_R at 12:56 PM on November 16, 2004

has anyone asked the superheroes what they think?
posted by NationalKato at 1:02 PM on November 16, 2004

You mean heroes... apparently "Superhero" is a copyrighted term.
posted by Stuart_R at 1:12 PM on November 16, 2004

Although I admit that the subtleties of the legal issues here are surely beyond me (trademark vs. copyright, for example), I have to say that at the end of the day, this whole conundrum only reinforces my sense that the concept of "intellectual properly" is being systematically abused by corporations.

This is not to say that I side automatically with NCSoft over Marvel. But as Marvel are the ones hauling it into court -- it bears thinking about that so many of these characters whose attributes are so infinitely valuable, legally the precious precious commodity of somebody or another, were and are pastiches of pastiches already, copies of copies: part of the recombinative ecology of pulp culture. A lot of the most famous ones are simply successful swipes of previous, nearly-identical figures which for various reasons got forgotten in the wake of the success of the ripped-off version.

To say nothing, mind you, of the way work-for-hire arrangements have allowed media companies to build million-dollar marketing franchises on storylines and drawings they initially paid a pittance for.

That last may be the way labor and creativity work in a free market context -- after all, nobody forced those artists and writers to sell their work to Marvel. However, now we're in a world where these media companies expect the social body as a whole, through the medium of the courts, to protect their property rights as if they were poor abused geniuses themselves. God forbid anybody but Disney sell a drawing of that mouse (regardless of the enormous difference between the current media corporation and the original creator).

This all seems an insult to our collective intelligence about how such things as Superheroes come to be: no one person's golden idea, no one company's innovation.

Marvel has already made an inland sea's worth of money off of its "IP," and I agree that the probable motive in their suit is to fight NCSoft's pre-emptive grab of their potential videogame market. Maybe in the context of the law, NCSoft didn't do enough to forbid Marvel-like characters. Or maybe it did. I'm not so much bothered by Cassandra-like premonitions of doom for the future of freedom of expression as I am revolted by the notion that we're actually asked to take this seriously as a society -- that we can't dismiss Marvel by saying "Well, really, you've made plenty over this stuff. I'm afraid they kinda snuck a fast one by you. Better luck next time."

(Yeah, I know -- the law doesn't work like that. I'm just sayin').
posted by BT at 2:59 PM on November 16, 2004

...sorry, should have said "online game" not "videogame."
posted by BT at 3:01 PM on November 16, 2004

This case is just stupid, and like several others have pointed out, Marvel is only going after NCSoft because they think they'll settle. They're hoping to force a "profit-sharing" agreement that will undoubtedly be constructed so as to give Marvel all the profit.

I hope there's some serious fallout against Marvel for this one.
posted by bshort at 9:56 PM on November 16, 2004

Is this another one of those "frivolous lawsuits"?

Personally I think it's because they know that any MMORPG that Marvel bring out will be a streaming pile compared to CoH.

eyeball kid : Re WoW : if they sort out the lag and the infestation of Blizzard fanbois then it really will be the shit. As good as CoH in the fun stakes, but with some depth and longetivity.
posted by fullerine at 2:27 AM on November 17, 2004

This looks like a classic "operation foot bullet" in the grand tradition of TSR. Geez these guys should be falling all over themselves trying to develop the fan boys.
posted by Mitheral at 9:26 AM on November 17, 2004

Marvel mad because someone can make a hero with the look and feel of one of their characters? Hello? Squadron Supreme? Imperial Guard?
posted by straight at 11:40 AM on November 17, 2004

straight - I was just about to raise that same issue. Does anyone know if Marvel negotiated permissions with DC before introducing the Squadron Supreme & Imperial Guard?

(For those not familiar with these characters, the Squadron Supreme was a thinly disguised version of the Justice League, while the Imperial Guard was based, I believe, on the Legion of Superheroes.)
posted by tdismukes at 2:18 PM on November 17, 2004