Not much in the way of details, but late last year Marvel settled its lawsuit against NCSoft, makers of MMORPG “City of Heroes.”
Marvel had sued NCSoft saying the ability of players to make characters that looked very similar to Marvel heroes represented copyright and trademark infringements.
This was pretty clearly a defeat for Marvel given that a press release from NCSoft announcing the settlement said,
The parties’ settlement allows them all to continue to develop and sell exciting and innovative products, but does not reduce the players’ ability to express their creativity in making and playing original and exciting characters. Therefore, no changes to City of Heroes or City of Villains’ character creation engine are part of the settlement.
I’ve actually been playing a bit of CoH ever since I kicked my WoW addiction. It is a pretty good game, though not nearly as compelling or enjoyable as WoW was.
At least when I play, I rarely see rip-offs of DC or Marvel characters. That’d be pretty boring anyway. Currently I’m playing The CandiMan. After all, who can stop criminals in their tracks? The CandiMan can!
Marvel vs. City of Heroes lawsuit settled. GameWinners.Com, December 15, 2005.
NC Soft, makers of MMORPG ‘City of Heroes’, has filed a motion to dismiss Marvel’s lawsuit claiming the game is one big copyright/trademark violation factory, since the game’s character creation system allows players to create characters similar to Marvel (or DC or any other superhero property) characters.
NC Soft’s motion, among other things, argues that,
Kids with wandering imaginations have long decorates school notebooks with pictures of fantastic and supernatural beings of their own design. The ingenuity of individuals, as expressed through the creation of characters incorporating timeless themes of mythology, patriotism, Â“good,Â” and Â“evil,Â” has been a source of entertainment in the form of role-playing games for ages. In the face of technology that enables individuals to engage in such activities in a virtual, on-line context, Marvel Enterprises, Inc. and Marvel characters, Inc. (collectively, Â“MarvelÂ”) have taken the unprecedented step of attempting to appropriate for themselves the world of fantasy-based characters, based upon alleged rights in works purportedly embodied in four comic books.
. . .
City of Heroes is a tool that encourages originality, not slavish copying. It allows young and old to exercise their imaginations to create super-powered beings and send them off to interact with the creations of other individuals in a virtual world called Paragon City. If it should be banned, then so should the #2 pencil, the Lego block, modeling clay, and anything else that allows one to give form to ideas. In MarvelÂ’s view of the world, if people should play online games with super heroes, they must only play with licensed Marvel characters, and imagination shall be damned. MarvelÂ’s attempt to monopolize online Â“heroÂ” games and quash creativity has no basis, and its complaint should be dismissed.
NC Soft Files Motion to Dismiss Marvel Suit. Newsarama.Com, Undated.
EFF senior staff attornney Fred von Lohmann has an interesting op-ed about Marvel’s lawsuit against players in City of Heroes infringing on Marvel’s intellectual property by playing Wolverine or Cyclops characters in the game. Von Lohmann writes,
Marvel’s assertion of copyright and trademark rights over the noncommercial expressive activities of its fans is both unprecedented and unnecessary. The fundamental justification for copyright is that we must tolerate a limited statutory monopoly on expression in order to secure an adequate incentive for the creative industries. That’s an adequate incentive, not the maximum conceivable incentive. Trademark law, meanwhile, is meant to protect the public from confusion in the marketplace for products and services. Measured by these yardsticks, Marvel’s claims fall short. Does anyone believe that Marvel will fire its authors and close up shop if it can’t prevent little Johnny from pretending to be Wolverine online? And no one is going to be confused into buying something by mistake when they run into another player in-game who has donned the green skin and purple shorts of the Hulk.
On the other hand, if the court accepts Marvel’s notion that playing Wolverine or the Incredible Hulk online is unlawful, you can expect a chill to spread through all the MMO universes. Rights holders will begin insisting that MMO operators police their games for unauthorized elements — robots that look too much like C3PO, uniforms that look too much like Captain Kirk’s, haircuts that mimic Bart Simpson’s, in-game face paint that evokes KISS, or blonde vampire slayers named Buffy.
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?”
Et tu, Marvel?. Fred von Lohmann, Law.Com, December 3, 2004.
This is ridiculous. Marvel is suing the makers of MMORPG “City of Heroes” because, according to the Associated Press,
. . .it [Marvel] claims [City of Heroes] allows players to make virtual characters that are too similar to “The Hulk,” “X-Men” and other heroes in the comic book company’s stable.
Like, for example, Marvel’s version of the major DC superheroes in Supreme Power?
If that’s not bad enough,
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.
Yeah, what sort of company would be so negligent as to allow players to actually choose their characters’ names?
Marvel sues two companies over role-playing game. Associated Press, November 11, 2004.