Marvel vs. City of Heroes

People are asking me my opinion (God knows why) on the law suit Marvel has filed against City of Heroes claiming trademark violation.

I’m of two minds on it.

One has to be aggressive in protecting one’s trademarks, because–at least it’s my understanding–failure to do so weakens them to the point of possible forfeit. That’s why George Lucas had to go after the US gov’t over “Star Wars” as applied to SDI, even though it was pretty much a lost cause from the get-go.

So if Marvel’s legal beagles genuinely believe their trademark is possibly being infringed, they literally have no choice but to file suit. The outcome itself is almost secondary to taking the action. I do not believe for an instant the notion that they’re doing so just to try and make money from settlements or wins. There are so many more effective and assured ways for Marvel to turn a buck than the wholly unpredictable option of litigation that it’s just too silly a notion for me to accept.

On the flip side, personally–I don’t think they have a leg to stand on. Similarity of characters? They’ve got a far stronger case to go after “The Incredibles” considering you’ve got a team with a superstrong hero, a stretching hero, and a girl who both turns invisible AND projects forcefields. The fact is that certain character traits and powers have become iconic and trying to patrol against them is a waste of time.

I mean, it’s one thing when Marvel went after Dave Sim because of Wolveroach, because that really DID create confusion in the market place. There were really fans, unfamiliar with Cerebus, who saw Wolveroach on the cover and bought the book thinking it was a Marvel tie-in. But no one participating in City of Heroes is looking at characters named Wolviereen and thinking they’re seeing genuine Marvel licensed products.

Hopefully this will be settled quickly and out of court so Marvel doesn’t have to look like a bully while legitimately trying to protect its legal interests.

PAD

60 comments on “Marvel vs. City of Heroes

  1. [I] It took me 5 minutes, total, to make Wolverine, The Hulk, Iron Man, Punisher, Captain America, Spider-Man, Northstar, Aurora, Puck, Deadpool, two other versions of Wolverine and Sabertooth. It is not that hard to make these clones.[/I]

    You’ve just discredited yourself with anyone who has played the game. Even quickly clicking through all the defaults taking the first available choice (with no thought) in ever power and costume option takes just under a minute to create a character. To say you created 11 characters, with powers and costumes that looked like Marvel characters, in 5 minutes is a physical impossibility unless you have the ability to stop time.

  2. Dan Forinton raised the point that the user agreement thingy before you start the game includes the disclaimer that the characters and stuff in the game are the property of NCsoft, then stating that “It would appear that Marvel have decided to be áššëš over this issue…”

    I’m not sure how the two items are connected. I’ve seen many posts (here and over at Newsarama) where people basically say that it’s not NCSoft violating the CRs, it’s the users, so NCSoft can’t be liable. That disclaimer would seem to contradict that line of thinking. If NCSoft is claiming ownership of all the characters that are created by their licensed users, then with that ownership comes the responsibility to make sure that they don’t infringe on someone else’s copyright.

    Now, personally, I’m just waiting for some legitimate legal challenge to that little “ownership” disclaimer. I know there’s been at least one Chinese case where the court there found that the player did have a vested property right in the items that he had accumulated in the game, and ordered the game company to compensate him when his account was hacked via a known loophole.

  3. You’ve just discredited yourself with anyone who has played the game. Even quickly clicking through all the defaults taking the first available choice (with no thought) in ever power and costume option takes just under a minute to create a character. To say you created 11 characters, with powers and costumes that looked like Marvel characters, in 5 minutes is a physical impossibility unless you have the ability to stop time.

    You’re making the huge assumption here that I went back through the powers selection process each time. I didn’t. I made the costume, clicked reset, made the next, clicked reset, made the next, clicked back, changed the body type, made the next, etc. You would be right if I had, indeed, gone to all the trouble of clicking through all the archetypes/origins/power selections every single time. I apologise for not making myself clearer.

  4. Concerning NCSoft’s claim to “copyright of all characters created by players”: I discussed this with a friend, who described the clause as preventative — It’s meant to protect NCSoft against the eventuality that a player creates “their” character, then unsubscribes from game, then sues NCSoft for violating the player’s copyright because their character is still on the server.

    Wildcat

  5. I wonder if it means that NCSoft owns the actual COH in-game character OR the “character” including its look. SO if you created your own character THEN went and made your own comic – could NC Soft claim some ownership or infringement?

    But that would be NcSoft being a bunch of bullying jerks . . .and that’s Marvel’s job, isn’t it?

    Actually – I think if there were tons of Marvel clones running around, then Marvel should put a stop to it – BUT – I’ve played the game – you get the occasional dork as SPyderMain – but he eventually gets deleted. You mostly see a bunch of original outlandish looking heroes.

    Where Marvel shows their intellectual dishonesty is in the Statesman claim.

    THe Shield was created BEFORE Captain America. The Fly was created before SPider-man.

    ANd then:
    Hulk Frankenstein
    Moonknight – Batman
    ManTHing – SwampTHing
    Quicksilver – The Flash

    The list goes on . . .

    Warner Brothers sued over The Greatest American Heroe being an infringement of SUperman and lost. THis case basically establishes that you can’t copyright Powers or a generality such as : a flying superhero, from an alien planet – with a cape.

    You can’t copyright an IDEA.

    The big star on Statesman . . . um, since when did Marvel copyright the AMERICAN FLAG!

    THis second claim is where they go out in left field.

    And Magento’s Helmet? Come ON!

  6. Marvel’s MMORPG thing folded long ago. It’s no longer in the works. My take on it is that people are no longer buying the pure garbage Marvel puts on paper and sells as comic books, so they need money from SOMEWHERE

  7. I have a question for those of you who’ve played CoH – does it permit you to put limitations on powers, a la the old Champions RPG? For instance, I had one hero in Champions who had, among other things, the power of flight. However, since the characters for that campaign were to be based on the players, and I have acrophobia, Bluestreak could only fly up to 8 feet off the ground. Any higher, and he’d panic and crash. If I could place him in Paragon City, that might be the impetus to actually get me involved in this nonsense…

  8. Jonathan, CoH doesn’t allow that much customization and it’s pretty limited in powers. You can’t really create a Phoenix or Superman clone in the game because their full powerset would be too powerful. All the archetypes have their weaknesses, blasters can’t take much damage, controllers can’t give much damage, defenders have their own funky balance, scrappers don’t have range and tankers don’t do much damage.

    You could get close with some characters but someone like Phoenix who has psionics *and* that firey thing or Superman who has toughness, strength *and* long-ranger powers…

    You can read about the in-game powers here:
    http://www.paragoncity.com/boxhead6177/

  9. Its pretty ridiculous to see idiots trying to enforce something that wasn’t even there idea in the first place. Who invented Claws? I know it wasn’t Marvel. Last time i checked they weren’t the ones who created the term quick regeneration either. The ideas used in Marvel, and frankly all companies are NOT new. To argue to the contrary would have years of history jammed right up yur áršë. I mean seriously, how many people here have seen or heard of ninja’s claws? How about food anyone hear of food before? You know food does re-energize you, just like pop can infuse you with energy. When will people stop claiming they were the first?

    I’m the first one to make fire, OMG your using MY FIRE! I’m going to take my fire from you!!!! Even though you made it!!! I don’t care if you took the time to make it!!! ITS MINE!!! MY OWN!!! MY PRECIOUS!!

  10. I noticed that someone earlier in this thread stated that you can create an avatar in City Of Heroes with claws that look exactly like Wolverines. Well, pardon me, but I always understood that Wolverine’s claws extended from the inside of his hands through his knuckles. I play City of Heroes and created a “Claws” powered character. It is interesting to note that these claws extend from a box attached to the back of the hand and that is NOT exactly like Wolverine.

    If fact, I take great pains to use my creativity to make characters individual. Given the limited range of powers in CoH it is guaranteed that (also considering the number of players), several players will have characters with identical powers. However it is much less likely that they will have the same costume as another player. Also, you can write your own history for your character to add further individuality. This flexibility you could argue makes the characters in CoH so different to Marvel’s.

    Someone else also stated that “Marvel doesn’t have a leg to stand on” with this lawsuit. I wish this were true but you have to consider the legal system in which they filed the lawsuit. This is the same legal system that awarded a woman $70,000 in damages after she broke her leg in a furniture store by tripping over a child who was running around uncontrolled. This in itself is not unusual until you discover that she received this award even though that the child she fell over was her own.

    This lawsuit seems particularly ridiculous to me for the following reason; If Marvel are claiming infringement because characters in CoH are too similar to characters appearing in their comics, then why do they not sue the manufacturer of Fancy Dress costumes for enabling people to dress up as Batman or Superman or Wonderwoman at Halloween and parties.

    I also heard that Cryptic approached Marvel offering them the chance to license CoH. Marvel turned this down. Marvel had their chance to make money out of CoH and they blew it.

    If I was the CEO at Marvel, I’d seriously be thinking of sacking my whole legal department and trying to find a way to save face with the company’s fan base instead alienating them.

    Perhaps this entire thread should find itself in an e-mail to the Marvel Offices to give them some food for thought.

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