Fred von Lohmann on Marvel vs. City of Heroes

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.

Marvel Sues City of Heroes

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.

ROM, The Space Knight

Lee Seitz has an authoritative site on Rom, The Space Knight, a Parker Brothers robot action figure that was pretty cool even though it flopped. I had a couple of these when I was a kid. Looks like go for about $200 if you can find them MIB on EBay.

It wasn’t that cool of a toy.

There was also a tie-in with a Rom comic from Marvel which ran for 75 issues. Hey, maybe someone should ask Michael Brian Bendis if he’s interested in doing an Ultimate Rom!

40th Anniversary Spider-Man CDRom — All 500 Issues of The Amazing Spider-Man

Last year I noted how cool the Marvel Comics CDRom was. That package featured the first 10 issues of ten Marvel comic books. Apparently that sold well enough that Marvel is upping the ante ahead of the DVD release of Spider-Man 2 with the The Amazing Spider-Man Fortieth Anniversary Collection.

This time around, the collection will feature Amazing Fantasy #15 plus issues 1-500 of The Amazing Spider-Man on 10 CDs.

The same company that did the Marvel Comics package, Topic Entertainment, is also publishing the Spider-Man set so hopefully it will be as well done as the earlier offering.

The Amazing Spider-Man Fortieth Anniversary Collection will be released in October and retail for $49.99. I can’t wait.

Super Stupid Trademark Case

According to this thread at NewsArama, Marvel and DC jointly own a trademark on the term “super-hero” and forced “Super Hero Happy Hour” publisher Geek Punk to change the name of its comic (they just dropped the “Super” so the title is just “Hero Happy Hour”).

According to creator Dan Taylor, “The decision to change the title was brought upon by the fact that we received a letter from the trademark counsel to ‘the two big comic book companies’ claiming that they are the joint owners of the trademark ‘SUPER HEROES’ and variations thereof.”

Hero Happy Hour officially premiered under its original title in January 2003 to favorable reviews by critics and garnered a loyal fan base that continues to grow with the release of each issue. “I want to assure our regular readers that the comic will continue to be published and will contain the same unique and humorous take on the genre we are all fans of,” says Dan Taylor. “If this means that we have to make a change in the title of our book in order for us, the guys struggling in the minor leagues, to be able play ball in the same park with the major leaguers, so be it.”

This isn’t the first odd comic-related trademark. Apparently in the 1980s Marvel trademarked the term “mutants” for the marketing of comic books in the 1980s.


Super Hero Happy Hour Changes Name. Newsarama.Com, January 30, 2004.

X-Men Toys Ruling

I’ve read a number of interesting commentaries (including this one) about the recent U.S. Court of International Trade decision that found the X-Men were “nonhuman creatures,” but I have yet to see a commentary on just how stupid U.S. trade laws are that this was ever even a question.

The reason this case ever came about was because X-Men action figures are made in China and are assessed an import duty. It turns out that dolls have higher duties than things classified as toys. So, Marvel went to court to ensure that the X-Men figures were classified as dolls rather than toys (and any boy over 13 could have settled that by pointing out that they are not dolls, but rather action figures. ‘Nuff said).

Now these duties were actually eliminated a few years ago, and the case was about how much Marvel would have to pay for toys imported in the 1990s. But still — how stupid was it to have some bureaucrat somewhere whose job it is to decide whether some hunk of plastic qualifies as a doll or not?

I couldn’t find a history of the doll tariff online, but the tariff goes back to at least 1937 when it was created pursuant to the 1932 Emergency Imposition of Duties Act.

But there was a dangerous loophole in that order which wasn’t closed until 1952 when, again, under the authority of the Emergency Imposition of Duties Act, a duty was added to imported doll clothes.

Someone surely was fired for allowing foreign firms 20 years to dump there inferior goods in the American marketplace!