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.

Monster Stupidity

This San Francisco Chronicle article describes one of the most bizarre examples of trademark stupidity I’ve read. The folks behind Monster Cables — those ridiculously overprice cables for everything from speakers to modem cords — apparently have a habit of suing pretty much anyone who brings out a product with the word “monster” in it.

Recent targets,

  • TV series “Monster Garage”
  • Pixar film “Monsters, Inc.”
  • Monster Seats sold in Fenway Park
  • A family owned vintage clothing store, MonsterVintage.Com
  • The Chicago Bears for their “Monsters of the Midway” moniker

Sounds like some executive at Monster Cable has a case of Monster Stupidity.


Monster fiercely protects its name. Benney Evangelista, San Francisco Chronicle, November 8, 2004.

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.