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[eric stasik]

Marvel Comics has sued the makers of the popular computer game "City of Heroes" on the basis that by allowing players to customize role playing they are creating content that infringes their copyrights.

http://www.wired.com/news/games/0,2101,65722,00.html

This case underscores the immense difficulty of maintaing copyright protection and is yet another indication of the total lack of respect for copyright among the public. Or are Marvel Comics totally wrong to try and stop this?

[Isaac]

It's not clear to me exactly what activity is being complained about.
I took a look at the "City of Heroes" web page and I see pictures
of generic garishly hued super heroes, and no hint of inducements
to use Marvel, or DC super heroes.  Is the defendant simply
guilty of building some kind of role playing game that can be
used to simulate user designed characters?

I'm sure that some copyright/trademark infringing activity is
going on, but I don't yet see a clear picture of why there should
be liability for the game producer.  Is it just because the
game maker is easiest to nab?

[eric stasik]

Mr. Clark,

I am not an on-line gamer, but my understanding is that City of Heroes permits players to adopt an on-line persona. In this case, some players are using Marvel Comic book characters.

I believe the complaint is that City of Heroes has not  policed their system and pervented the use of copyrighted material.

Thus they are exploiting another's copyright for their own commerical gain.

The makers of City of Heroes will probably claim the Grokster "other non-infringing uses" defense in the hopes that the judge will be blinded by science and misled into allowing this infringement to continue.

I think Marvel wins this hands down and City of Heroes will have to make some effort to restrict the use of it's system to original personae and not copies of copyrighted superheroes.

Batman and Robin were always overrated superheroes in my book.

There is very little innovation if the players use already well-known comic book characters. Copying promotes intellectual laziness and stifles creativity.

Regards,

eric stasik

[Isaac]

Where does the obligation to police the online system come
from?

I think just on the facts we've discussed, the liability is
a step removed from P2P cases that we already know were not
slam dunk wins.  I don't see any evidence that City of Heroes
attempts to induce infringement.  Why isn't their activity
protected under the DMCA as long as they put a stop to specific
cases when informed?

[JimIvey]

I think this has officially reached the realm of laughably ridiculous.  

Just this weekend, my toddler and I were drawing Monsters, Inc. and Looking for Nemo characters using Crayola(R) markers.  We did so for our own enjoyment, a perk normally reserved for the valuable paying customers of Disney's benevolent, generous, and altruistic market offerings.  Perhaps we should inform Disney of this potential flood of harmful infringement facilitated, perhaps even actively encouraged, by the despicable evil-doers of Binney & Smith, makers of the evil Crayola(R) infringement tools.

At the very least, these evil tools for primarily infringing activity made such harmful infringement more possible and perhaps more likely, what with all the colors -- coincidentally the same colors used to draw these valuable, copyrighted characters, colors like red, green, blue, orange, black, white, yellow, and purple.  A mere coincidence that these colors, the very same colors needed to draw many Disney characters, are packaged and sold as a group?  I think not!

And, what about the manufacturers of the very foundation of our infringing extravaganza, paper?  Let's not let them off the hook!

Regards.

[Isaac]

I thought of the Crayola analogy too.  I am not familiar with
online gaming, but I do have a 13 year old who plays game console
games.  Many of the wrestling, basketball, and other games allow
players to design their own players with varying degrees of
ease.  Kids tend to use them to add imitations of new players
that were not in the game as purchased.  I don't see why
the game manufacturer would be responsible for any trademark,
publicity right violations that the kids managed to engage in.

While I don't think current law supports liability for NC Soft and
City of Heroes, it is kind of interesting to test the facts against
versions of the proposed Induce Act.

[JimIvey]

Maybe, if kids were posting their hand-crafted likenesses of celebrities on the web for importation into others' games, it might be more problematic.  I suppose part of the problem is that the home-crafted "skins" might make appearances remotely in networked gaming.

I still don't see where there's harm to the original copyright owner, though -- unless Marvel is about to sell collection of skins for video games and the home-grown variety is a meaningful competitor to that market.

However, none of this is without precedent.  Fans and users of the Sims have long made skins of famous people and traded them online.  EA doesn't seem to have a problem with it (not that I have any special insight into how EA feels about that).  

I heard a presentation by the creator of the Sims a year or two ago.  Then, the most common skinned celebrity was Britney Spears.  FWIW, I haven't heard Britney complaining either.

Regards.

[Joel_DiPippa]

  One of the problems with this suit is that Cryptic and NC Soft do police their servers.  The terms of service pretty clearly tell players not to make an infringement and that they will have those characters deleted if they do.  Since the game went live, the vompanies do reoutinely delete characters that are clones of established Marvel of DC characters.  With that many people on the game, though, they will not be able to catch them all.  I have several friends who are pretty heavily into the game.
 Marvel is also apparently challenging the studio based on some similarities between CoH's heros and Marvels.  In particular, I saw a claim that Statesman, the avatar of one of the developers, was illegally similar to Cpatain America.  They both have stars on tehir chest.  They both are leaders of their respective communities.  They both have the "Mom, Pop, and Apple Pie" style persona.  Thats it.  It seems like Marvel is trying to base this prong on archetypal characters.  
 Honestly, Marvel does not look like its on good footing for this one.  The ability to customize the characters, allowing a user to create content, and policing that content in a fairly consistent manner does not seem to sit well with the laws.  Of coarse, there is the persistent rumor about Marvel's own MMORPG and this as an attempt to soften up the competition.  Curiously, Marvel is alienating the exact market it should have been courting.  Okay, enough babble for now.

[Isaac]

I've seen some stories suggesting that NC Soft has attempted
to do some policing.  I think back in the pre DMCA days, doing
so was risky.  On one hand, willful blindness does not protect
against liability, but on the other, demonstrating an ability to
monitor users makes it difficult to argue that you could not
practically do so.

I think the DMCA removes the horns from the dilemma.  If you
fall into the safe harbor, then you only have to take action
when notified, or possibly against repeat offenders.

[JimIvey]

All this is reminding me of a firm I worked for years ago.  It represented a video game company and we got a letter from a professional wrestler suggesting that our client had unlawfully replicated his character in their fighting game(s).  

I remember the similarity was also phrased as a list of three characteristics -- big, hairstyle, and a signature wrestling move.  To me, so few characteristics strongly suggests "idea" rather than "expression" and therefore no copying.  In literary works, so few similarities seems to be insufficient for liability.

But it was fun reading up on professional wrestling "on the clock."  

Regards.

[Joel_DiPippa]

  I believe that Marvel is trying to float the suit on the basis of Trademarks and not copyrights which mitigates some of the use of the DMCA.  
 I will give Marvel credit in that they are going after more than just an idea, compared to the wrestling suit noted above.  The problem I see is that they are suing based over a customizable character creation suite.  Personally, I don't think this should even fall into the fair use area.  It ought to be a use that does not require the protection of the fuzzy area because Cryptic is not using the trademarks of Marvel.  Cryptic's proactive stance from the inception of the game including the parts of the EULA and the consistent policing of their servers shows a high regard for the comic companies.  In fact, CoH had repeated advertisements in Marvel comic books!  <Shrug>.  
 Marvel's timing and positions don't quite pass the smell test.  They have been aware of the software for some time now and did not act earlier.  Now they are as they advance their own attempts to create an MMORPG.  BTW does anyone here know where this case was filed?  Which district court?  I tried to find some of the filings on-line ... see if they are available from the various free services.  

[C._Stewart]

Hello,

I'm not typically a reader or poster to these forums, but I stumbled upon this discussion and thought I might be able to contribute somewhat. At the very least, someone should try and help clarify a few things about the game and how its character creation system works - I assumed most people would like to understand as much about the game as possible before making a decision, but Mr. Stasik has shown that would be wishful thinking on my part.

Character creation in any video game has always been tricky. You can limit the way a character looks and the result is that everyone is very similar (since games are about projecting yourself onto the character you're playing, this is a little boring) - alternately you create a very robust and nuanced system, but the potential is there to create characters that look like other copyrighted characters.

Massively multiplayer games, as their name suggests, are games where tens of thousands of players share a game world - all MMGs therefore try to offer players as much choice as they can when designing the look of their characters. In a superhero game, doubly so - who wants to fight crime and run into another hero wearing the same outfit as you on a rooftop. How tacky. How awkward!  

Given that the game directly appeals to comic readers, it's a given then that someone will try and replicate their favorite characters. A broad character creation system is a double edged sword - for the same reasons that it allows you to be an individual, it allows you to be a pre-existing character - never exactly, but close enough that everyone knows what you intended (given that most heroes are iconic, this muddies the matter even more).

NC Soft has every right to offer players the feature - in fact, it's arguable that without it, they're cutting themselves off at the knees. The game wouldn't appeal to players looking to play out their fantasies (both legitimate and infringing) at all.

A friend of mine said it best - respectful hommage needs to be afforded some of the same protection as disrespectful satire.

There's a lot that goes into making and maintaining a MMOG and maybe I can help answer questions, if anyone has any.