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
Posted by Peter David at November 14, 2004 09:59 AM | TrackBack | Other blogs commentingWell said, especially concerning The Incredibles.
Even the name, Mr. Incredible of The Incredibles, made me uneasy. And check out the analogues:
Mr. Incredible - any number of super-strong characters from Atlas to Thor and many folklore side paths in-between.
Elastigirl - Not many mythology/folklore options here but comics have a sizeable contigent of stretchers. Plastic Man, Elongated Man, and to a degree Metamorpho and E-Man come immediately to mind.
Dash - Super-Speed seems to be more plentiful than hydrogen. Hermes, Quicksilver, Mercury, The Whizzer, The Flash, Captain Marvel (the lady who could become light), Northstar, and Aurora to name a few.
Violet - The Invisible Woman.
How did they let that one through? Is there supposed to be some level of plausible deniability? Cos I don't see it.
The Marvel case here is ridiculous. From what I've read, Marvel's argument is that the City of Heroes engine allows users to create characters that bear a very strong resemblance to Marvel characters, which might be a trademark violation
So, if I might use a pen and ink to draw a picture that resemble a Mavrel character, Marvel should take legal action against the pen and ink manufacturers?
The City of Heroes character creator is incredibly vast, allowing an extraordinary range of colors, costumes, and textures. (Apparently all the females are top heavy; some things never change.) This allows for an almost unlimited # of character types -- including Marvel copies. You could also make a character like Conan, or Mr. Incredible, or Spawn, or any number of licensed characters.
City of Heroes is not being marketed with a Marvel-type character on the cover, nor is it designed solely to churn out Marvel clones. This lawsuit will only hurt Marvel, making them look petty and paranoid.
Marvel does have to defend their trademarks under US laws, but there should be executive oversight as to how the lawyers go about doing that. Particularly how they should deal with the cases to best serve Marvel Comics in the long term. The Marvel lawyers up until now have been using the strategy of “Don’t just beat them. Destroy them!” ((TM) Carl Rove). They don’t just do in the court room. Marvel lawyers have also (in the past) made statements to the press to attempt to demonize the defendants in a very insulting manner. I think that is what is creating animosity with the fans.
If Marvel was smart they would say to the public and possibly the judge what some of the posters have said in here. “I know it sucks, but due to the way the laws are currently written we have to bring these things in front of a judge to insure the survival of our trade marks and copyrights. We would not be filing this case if they law did not say we absolutely had too.” And for gods sake, don’t go after insanely high monetary damages for cases like this one. Politely ask the game company to show in front of a judge that they are in fact doing their best effort to police the game for illegal conduct of the players. That should be enough to protect the copyright. Finally do a joint press conference with the defendant to let people know that there is no bad blood between the two companies and state that this is just part of doing business in America.
Despite agreeing that one must protect what they create, Marvel seems to be a bit over-reacting in this situation.
And PvP basically laid out all I was thinking in that particular comic strip.
You're absolutely right, James. Although I don't play CoH (already addicted to Star Wars Galaxies and can only afford one MMORPG subscription at the moment), what you've described is quite accurate.
This entire situation sounds a lot like what Marvel did with the game Freedom Force last year. While not an MMORPG, it, too, allowed users to design (with more difficulty than CoH) and import custom character skins, and quite a community of "skinners" created skins for existing characters...Marvel, DC, Image, movies...you name it, distributed free of charge. Last year, Marvel issued cease and desist letters to the "skinners" with Marvel characters.
As it turned out, Marvel was developing their own Marvel Universe MMORPG. Given the action directed at CoH, I'd say they still are, and are (as with Freedom Force) attempting to drive players of super-hero games with any level of interest in utilizing a Marvel character (or one even closely "inspired by" a Marvel character) to their game.
Probably also worthy of note - although I can't say for certain, again, not having played CoH - is that CoH probably has a character name filter similar to the one in SWG. SWG's filter prevents players from using the names of established Star Wars characters (although there are workarounds, including spelling variations like PAD described with "Wolviereen")...I'd be willing to wager that CoH has the major existing character names blocked.
The wackiest part of all this is that City of Heros has been advertised in Marvel comic books since before its release. Thus Marvel has already made profit from the game.
I just wonder, regarding the similar names issue, if Marvel has copyrighted all (or any of) the various goofy names they've used over the years in their humor titles (for instance, "The Bulk", "The Mighty Sore" or "Charlie America"--some names from the pages of the old Crazy comic book). Also, how does Marvel protect its copyrights when DC uses Marvel characters in the pages of Mad Magazine? The current issue of Mad has a feature inspired by the Spider-Man: India series (using Ireland, France, China, the Netherlands, and Bermuda), and there's actually nothing I could see which indicated that Marvel owned the trademark to "Spider-Man".
As a CoH player I can understand that Marvel have to protect their trademarks, but taking the big stick to CoH in their usual heavy handed way is not going to do them any favors.
One of the things that surprised me about the game is the number of players who have never played a MMOG before. When I've tried other such games I usually find the majority of players are experienced online gamers, but most of the people who play CoH are comic book fans who just want to play at being superheroes. Of course they want to recreate their favorite characters; who wouldn't?
Marvel need to get their head out of their collective ass and realise that these are their own fans they are attacking here.
PAD's pretty much accurate about needing to act to protect your intellectual property rights. And you can't afford to be selective about it, because sooner or later someone's going to catch on, and you're going to lose your rights. The law does not protect those that sit on their hands and let others abuse those rights. Kinda like squatters: If you see someone camping out on your lawn, and you don't tell them to move, they may just develop some right to be there. Or put another way, you could lose your right to make them move.
Marvel's action is an outgrowth from the NAPSTER case. The reason NAPSTER got busted was because their system not only allowed people to violate copyright law, but it also stored those files on a central server. The Lawsuit against NAPSTER was successful because of those stored files.
I think CoH, like other MMOs, does the same thing, storing character files on their servers. So from a legal standpoint, looking at the precedent available, Marvel's legal department really had no choice, given the similarities.
That's not the end of the suit, though. The RIAA also had some evidence (whether you think it credible or not) that NAPSTER's activiy was hurting sales. While you don't need that to prove a copyright infringement case, it sure helps, especially in getting damages awarded. I doubt Marvel can prove any damages here.
What will probably happen is Marvel might ask for proof of that COH is monitored so that any Marvel CR infringement is addressed and stopped. I've read some things that COH already does this, and it is in the EULA, so I'm hoping that this really doesn't amount to anything.
There is a huge difference between Mad Magazines using Marvel comics characters and someone playing City of Heroes.
Mad Magazine is a comedy magazine with almost everything in it a parody of something else, and is protected as such.
City of Heroes on the other hand charges you for the game itself and a monthly fee to play a game. Everytime someone plays as a Marvel character, it takes away from money that could be going to Marvel on their own MMORG. Why would anyone buy the Marvel game if they already are playing a Marvel character on City of Heroes? And there is no way you can say you the game you are playing is a parody. An homage maybe, but not a parody.
Taylor is right. There is a difference between a one time parody and regular usage.
COH is in trouble unless it monitors new characters to make sure that they are not rip offs of Marvel characters. If COH allows a Wolvereen or Spyderman, they will lose. They will be aiding and abetting. COH should attempt to broker a deal in which they are granted a limited license to cover such situations. The limited license could be similiar to a royalty on using such names and characters.
Yet another example of why current copyright laws MUST be scrapped...
C.o.H. is rather vigilant about not letting anyone use copyrighted names or costumes. I beleive there's someone right at the spawn point of the game (when you finally get online) who gives you a warning about visual copyrights before they boot you off the server for breaking the T.o.S.
I don't play CoH, but I have a friend who does, and from what I understand the company does regularly go through character files and order people to change their names if they're too similar to copyrighted characters. It can't be an easy task, but it does get done.
Meanwhile, the game employs original plots, and I believe that the character designs are limited to the options provided by the game itself. This is different than the aforementioned Freedom Force skin issue, as it was essentially an open design - you could skin exact replicas of copyrighted characters.
I really do think Marvel is out of line in this case, and hope that they don't win their case.
Is there anyone that Marvel hasn't sued? I can't remember a time when they haven't had a lawsuit of some kind in the works.
I agree that they have more of a case against the Incredibles, since they even used a Mole man like character at the end of the movie.
They should be worried that people will not want to see the Fantastic Four movie now since they have seen the Incredibles. I know that I will be comparing the graphics in the former, versus the animation in the latter to see which one was actually better.
If you are genuinely displeased with Marvel's actions in the case, then do something about them. Mail Marvel's head offices voicing your displeasure. If that doesn't work, stop purchasing Marvel products. If a company is continually engaging in behavior that you find objectionable, you the consumer do have the power to make your voice heard.
When you choose a 'Scrapper' character type, the game makes a distinctive 'Snikt' sound. Then you can go and choose the Claws powerset-- which looks exactly like Wolverine's claws. Then, you can choose Regeneration, which allows you to heal faster in various ways. Then you get to character creation. About 5 clicks later you have, without a doubt, Wolverine.
You can do the same thing for The Punisher, Deadpool, Captain America, Northstar and Aurora, Iron Man (one of the helmet options IS his helmet), Puck, the list goes on and on.
I do play CoH, and I love it. But the clone situation is very much out of hand on several servers, and the character creation engine easily allows you to make very close clone characters. On one server there is even a Green Lantern Corps supergroup with dozens of GL clones. It's been reported dozens of times, but no action taken against it (I know that's DC, but the point remains). Even on my chosen server, there's an "X-Men Year Two" supergroup with a bunch of X-Men clones and X-Men-based characters. They've been reported, to no avail.
I hate the legal process as much as the next guy, but you can't tell me that Cryptic didn't go into this KNOWING that they would be drawing thousands of players with the promise of playing ole' Canuckle Head or The Hulk, each one paying them $15 a month to play Marvel characters (with slightly altered names-- though as a point of interest, Logan and Jim Howlett are both acceptable names). Considering Marvel's plans to release their own MMORPG-- assuming that didn't fold already-- I can completely understand why they'd take this action, in addition to the point PAD brought up about the legal requirement to protect your trademarks.
It sucks, but we all knew it was going to happen, Cryptic most of all.
Randomus wrote...
Then you can go and choose the Claws powerset-- which looks exactly like Wolverine's claws. Then, you can choose Regeneration, which allows you to heal faster in various ways. Then you get to character creation. About 5 clicks later you have, without a doubt, Wolverine.
Can Marvel really claim to have a copyright on superpowers though? I mean honestly, there's only so many powers to go around, and the various comic companies re-use them all the time. How many characters have healing factors? Claws? Beams that shoot out of their eyes? Super-strength?
It's unfortunate that so many of the players are uncreative, and it's even more unfortunate that the company isn't keeping up with turfing these players.
At most, I would want this suit to result in Cryptic being forced to crack down harder on the players who are blatantly infringing on copyrights, but without changing the fundamental game design.
Jeff Lawson asked if Marvel has a copyrighton superpowers. Then answer is "nope." What they do have is a copyright on certain characters. Take the Wolverine CR: It includes the name, including, presumably Logan. The costume(s). the Claws, healing factor, origin story (Weapon X, Mutant). So you could make a mutant brawler in COH with claws and regeneration, and so long as you don't name him Wolverine (or some variation therof), or use one of his costumes or something similar, and you're fine. But the name and likeness are copyrighted.
Now, if you created a character with the name wolverine, but didn't inlcude the claws and healing factor or costume, you're clear.
And there's a big difference between the casual comic fan making his own drawnings of Marvel characters, so long as you don't make too big a deal about selling them, or distributing them publicly. Private use can't really be regulted, and that's not the point of a CR. It's to protect the image and investment placed into CR material.
Why would anyone buy the Marvel game if they already are playing a Marvel character on City of Heroes?
If I may....
For the same reason that, before Mayfair's late, lamented DC Heroes RPG folded, I was excited as could be when Mayfair announced at a local con that they were in the process of trying to work our licensing agreements with Marvel, Image and assorted other creators/publishers to put together DC Heroes sourcebooks and stats on their characters. That is, while my friends and I had done our own conversions for our DC Heroes campaign (as our campaign was set in the combined Marvel/DC Universe of the old crossovers...y'know...the one nicknamed Earth-$ *grin*), we liked the idea of having the characters' conversions done right.
I'm playing CoH, and I'm playing a character with claws and regen. Thanks to the distinctions kindly described by King Bob above, I think I'm clear from Marvel's lawsuits.
She's a replica of a character I made up about 15 years ago for a generic tabletop roleplaying game, and she's NOT based on any copyrighted characters.
Admittedly, I'd rather have fingertip-claws than forearm-claws, but I'd bet the former would be a pain in the keister to animate when most other hand-attack animations use either a fist or a pointing index finger or the palm forward "STOP" gesture. So I have no choice, if I want something "Claw"-like, but to use the forearm-based claws.
It's also worth noting that she has the closest I could get to a leopard fur pattern across her entire costume. Should National Geographic be filing suit? What about DC, since I look a bit like the villainess Cheetah? And, if the motivation is moral outrage at concept theft, why would they sue *NCSoft*, rather than *me*, since I'm the one who stole their idea?
I've seen the Wolvie and Hulk remakes, and y'know, up close they're not good copies. I've also seen people running around upset because they were renamed "GenericHero" with a number on the end.
Oh, and by the way, there are Wolverines and Ororo Munroes and Doctor Dooms running around the Star Wars Galaxies Corbantis server. Why no lawsuit, Marvel?
I just don't think this lawsuit is a bright idea on Marvel's part. Just because one *has* the power to attack, doesn't mean that one *ought* to attack. It's not very heroic behavior.
P.S.: Sorry if this looks odd. For some reason, the "Preview" button won't provide me with a preview. I've been having computer problems for a month or so, though, so it might well be solely a problem on my end.
Remember that a couple of years after the whole WolverRoach thing, when Marvel had a recurring X-Men character named S'ym who looked a lot like Cerebus on steroids? Featured on the cover of their best selling comic a couple of times (not individually, true)? Can it be said that they set a precedent by not obeying the rules that they expect others to obey?
I'm just pointing out here that it is very easy to make near-exact replicas of Wolverine or The Hulk or The Punisher, complete with their powers, in City of Heroes. I'm not saying anyone who uses the Claws/Regen set is automatically copying Wolverine; it's just people who use Claws/Regen and make a Wolverine costume, and have Wolverine's bio in their ID card. And there are many.
Why would anyone buy the Marvel game if they already are playing a Marvel character on City of Heroes?
Why would anybody buy EQ2, Final Fantasy Online or Words of Warcraft when you already have a fantasy character on Everquest?
It depends what Marvel has to offer.
And, let's face it: Marvel is late to the game, so if they lose out on the player base, it's their own problem, and suing other companies into the ground is going to make them look bad.
No, I don't think people taking the time to make look-alikes on CoH is going to affect Marvel's bottom line.
My guess would be one of the following:
A) Marvel was approached by the makers of City of Heroes about licensing characters before the game was released, and Marvel turned it down. CoH developers then changed the character design kit to create a "reasonable" difference, but Marvel assumed they would just cancel the game release. When they released it anyway, Marvel prepared a suit, hoping the small company would settle rather than fight it.
B) Marvel was planning to release an online multiplayer Marvel hero based game, and was forced to cancel the release due to the success of City of Heroes, and the fact that they got to it first. The suit is Marvel's attempt to recover the costs of development, and they figure a small company will fold quickly and settle.
The Incredibles is immune from the above for one simple reason: While Marvel can easily bully a small company into a settlement to avoid an expensive court battle, both Disney and Pixar have deep pockets - there would be no quick settlement from the media giants.
"Remember that a couple of years after the whole WolverRoach thing, when Marvel had a recurring X-Men character named S'ym who looked a lot like Cerebus on steroids? Featured on the cover of their best selling comic a couple of times (not individually, true)? Can it be said that they set a precedent by not obeying the rules that they expect others to obey?"
I don't think so, no. S'ym was an in-joke and no one could possibly have purchased a copy of "X-Men" thinking that they were getting a "Cerebus" comic or Cerebus guest appearance (if nothing else, the character wasn't short, gray and furry). But people DID buy "Cerebus" when Dave did those Wolveroach covers that parodied the "Wolverine" limited series, because they saw them on the stands, thought that it was really Wolverine, and bought it on that basis. That's the exact kind of action that undercuts a trademark and that Marvel must protect against.
PAD
But people DID buy "Cerebus" when Dave did those Wolveroach covers that parodied the "Wolverine" limited series, because they saw them on the stands, thought that it was really Wolverine, and bought it on that basis. That's the exact kind of action that undercuts a trademark and that Marvel must protect against.
And Marvel releases Identity Disc the Same week as Identity Crisis every month hoping to create the same confusion. Face it, Marvel's a Hypocrit.
First of all I dont like a game you have to pay to play after you have brought so I have never played the game but I have heard that a feature of an upcoming expansion pack is web shooters and being able to swing from webs around the city maybe this is the problem.
PolarBoy wrote...
I dont like a game you have to pay to play after you have brought [sic]
Normally I'd agree, but in the case of massive online games like this it makes sense. The company has to maintain the game servers at their own expense, as well as provide regular updates featuring new content. A subscription fee is a sensible way to recoup these expenses.
Personally, I haven't come across a MMORPG that I was interested enough in paying for, but City of Heroes has tempted me before. If Marvel (or even DC for that matter) produces its own, I'll probably pay for it in a heartbeat.
I think that the "Preview" function is busted -- it never works for me, either.
As to "The Incredibles" -- Elastigirl's powers are used a lot more like Plastic Man's than Mr Fantastic's...
I mean, i could easily imagine Plas getting into the door thing, but nor Reed Richards.
Cryptic has stated that they have no plans to make any web-slinging powers. Not only would the animation be next to impossible for them, it would be completely impractical for getting around many of the game's environments that have nothing to swing from. Plus it would get them even further into the hole they've been digging with the costume options and claws powersets.
Actually, I find this situation amusing.
Even more so if Marvel creates an MMORPG and releases it, and suddenly somebody's once-unique character in the game turns up as a character in one of Marvel's comics.
Now that would be a fun lawsuit for Marvel to explain.
The reason I don't play CoH is because my video card is too old for this one (and, I suspect, it's inadequate for most new games coming out). Also, working retail doesn't give me the $100+ for a new video card, or to pay the local PC store to install it. When I play CoH I'll go to Neutral Ground in Manhattan and pay the $5 an hour to play there -- no video card purchase, no monthly weblog fee.
As for character type, I'm thinking either a brick, or a reptilian with regen and claws. Good speed too, initially.
With the huge number of MMORPG games coming out nowadays, Marvel has the right to protect their intellectual property. If not, the next thing you know, you can buy the new Playboy game and have the Hulk get jiggy with a Playmate. Yes, the Hulk is Player, what of it.
I have to side with Marvel on this one. I know that over in the CoH thread at Newsarama someone posted some links that showed just what kind of characters a person can make with their creation tool. I was literaly lookin at Nightcrawler, Jean Grey, etc. If their cration tool allows you to make characters that look like the one Marvel owns then they have no one to blame but themselves.
Everquest II's creation tool doesn't let me create Gandolf and Star Wars Galaxies' creation tool won't let me create someone who looks like Spock.
James Tichy wrote...
I know that over in the CoH thread at Newsarama someone posted some links that showed just what kind of characters a person can make with their creation tool.
These links can be found here.
I think it will be a real shame if Cryptic is punished for installing so much flexibility into their game. I mean, all they did was give players a wide variety of powers, costumes, colours and logos to play with, all of which are quite commonly used in comics (and not just by Marvel).
Sadly, too many players are uncreative and end up cribbing existing characters rather than develop their own.
Maybe Marvel should be targeting them and not Cryptic...
>You can't afford to be selective about it, because sooner or later someone's going to catch on, and you're going to lose your rights.
So? Be unselective and piss off your fans. This is an improvement, how, exactly?
> Marvel's action is an outgrowth from the NAPSTER case.
That would be more accurate if they were trading actual copies of the magazines or movies.
> Marvel's legal department really had no choice, given the similarities.
Uh, write up a contract OKing the whole thing?
Consider how, back in the mid-seventies, a fan artist acquaintance wanted to sell a limited edition [500 copies as I recall] portfolio of STAR TREK ship art at one of the big NYC conventions. We wrote to Paramount (copyright holders) who simply replied "send us a copy of the finished work and we'll let you know."
They liked what they saw and told us "sure, just remember to stamp the back of each picture with 'copyright Paramount'". We did, and everyone was happy. Would that Marvel were as understanding or accomodating.
> that NAPSTER's activiy was hurting sales. While you don't need that to prove a copyright infringement case, it sure helps, especially in getting damages awarded. I doubt Marvel can prove any damages here.
Someone asked why would anyone buy Marvel's game since CITIES is already out. If one sets aside Marvel's heavy-handed tactics, there might be very good reasons for buying it. Same as those of use who bought and loved the WW II first person game MEDAL OF HONOR then bought another company's WW II first person game CALL OF DUTY. Same idea, locales, etc, but different approach as well as look and feel. Very similar in many respects, but each is still fun in their own ways.
Of course, this is moot for me as far as the marvel game or CITIES goes as I can't see myself
spending good money to buy a game, only to have to spend more money just to be able to play it on-line.
> I've read some things that COH already does this, and it is in the EULA, so I'm hoping that this really doesn't amount to anything.
Tell that to the programmers whose firm just took a hit in legal fees because of this.
So tell me, is this legal or not?
http://www.livejournal.com/community/justiceleague/19114.html
(I'm not the artist, just curious.)
Not only do I not think Marvel has a leg to stand on, it's not even necessary for them to file this suit.
CoH advertises and sells a service. None of the promotional material features characters that anyone can possibly confuse with a Marvel property, and they don't encourage players to create characters that resemble copyrighted property, period. In fact, their ToS forbids such characters.
Yes, the character creation engine is versatile enough that, with the right combination of options, a character can be created that bears a striking resemblance to any given Marvel character -- again, not because they want such clones running around, but because they want to give players so much leeway that they can create their own unique good guys (and soon, villains as well). Arguing that CoH should hobble their character generator because the end users could potentially abuse the system -- that's asking way too much. And again, CoH already has rules covering this possibility.
Hopefully, the judge will be smart enough to throw this one out based on lack of merit.
Wildcat
The Star Wolf, I think you're missing the point, which isn't all that too hard to understand (your missing it, not the actual point) since it's getting into very fine and technical legal distinctions. (Just and FYI, I'm a lawyer. Not that having a law degree makes me smarter or better or anything, just that I've probably got more training and exposure to IP stuff from the legal side).
KB >You can't afford to be selective about it, because sooner or later someone's going to catch on, and you're going to lose your rights.
TSW So? Be unselective and piss off your fans. This is an improvement, how, exactly?
Not sure what you mean here. Let me try to rephrase: When deciding how to go about protecting your copyright, you have to give some consideration to being consistant. The phrase courts and lawyers love to use is arbitrary and capricious. Basically, random and unpredictable. If you act in this way, the public at large has no clear record to go on, by which they can have some idea of what fair and free use of their copyrighted material would be. Take DC and Marvel for example. DC has a fairly loose stance when it comes to their CRs, pretty much only going after public promotional uses. They may be a little more aggressive in protecting their Superman property. Given that precedent, a GL corps guild, complete with GL knock-offs in COH, is probably safe from action by DC. Can they still file a suit? Sure they can. Will COH have a strong defense? Sure, if they can show other examples where DC has known about similar uses and didn't do anything about it.
Marvel has traditionally had a stronger position when it comes to protecting their CRs. If they start to let off in that aggressive stance, they'll have a harder time getting court protection in the future.
Not sure what you were looking for as an improvement. I was only explaining what is likely Marvel's legal department's reason for filing the suit. They have to, based on their prior decision to be aggressive in defending their CR.
KB > Marvel's action is an outgrowth from the NAPSTER case.
TSW That would be more accurate if they were trading actual copies of the magazines or movies.
I said outgrowth. Meaning, it's a logical application of legal precedent, trying to expand on the legal concept of intellectual property rights. The key fact being that COH, like NAPSTER, hosts a central database that contains material that may infringe upon a copyright, not for private use, but for shared use between 2 or more parties. People today are attributing this type of reasoning to "activist judges," but in fact it is a system of jurisprudence that goes back hundreds of years before our country was formed.
KB> Marvel's legal department really had no choice, given the similarities.
TSW Uh, write up a contract OKing the whole thing?
Sure, but Marvel isn't going to do this for free. Licensing is a key income area for Marvel. They aren't going to do this for free. I haven't seen anything indicating that the CoH makers approached Marvel with a licensing idea, or if they did, what Marvel's reaction was.
KB > that NAPSTER's activiy was hurting sales. While you don't need that to prove a copyright infringement case, it sure helps, especially in getting damages awarded. I doubt Marvel can prove any damages here.
TSW Someone asked why would anyone buy Marvel's game since CITIES is already out. If one sets aside Marvel's heavy-handed tactics, there might be very good reasons for buying it. Same as those of use who bought and loved the WW II first person game MEDAL OF HONOR then bought another company's WW II first person game CALL OF DUTY. Same idea, locales, etc, but different approach as well as look and feel. Very similar in many respects, but each is still fun in their own ways.
First off, no one owns a copyright on the looks, images, locations, and general feel of a WWII game. It was a historical event, not something someone thought up and created from their imagination. Anyone and everyone is free to go out and research WWII, develop a game based on that research. And if there are similarities between the two, that's because they're based on the same historical information.
Marvel's Copyrights give them an exclusive right to profit from their properties. That means that they can prevent anyone else from profiting from those CR characters. If CoH is allowing a large number of people to play using Marvel knock-offs, they are profiting off of a Marvel property without Marvel's express permission. It doesn't go into whether Marvels' game is better or not. It's about controlling the use of a CR property.
KB > I've read some things that COH already does this, and it is in the EULA, so I'm hoping that this really doesn't amount to anything.
TSW Tell that to the programmers whose firm just took a hit in legal fees because of this.
Well, ok, here I'm gonna pull a little legal rank on you. So they got a suit filed against them? Big deal. Right now, it's really NOT a big deal. If they don't have a lawyer, go get one. I'm sure they could appeal to their player base and find one playing who would represent them for cheap. Unless and until it goes to court, legal fees aren't (for most corporations) all that high. And chances are, they can reach some agreement or settlement without going to trial.
Plus, from what I hear, CoH is pretty popular. If they follow the EQ model, they are making absolutely TONS of money each month. Let's assume even just 100,000 accounts. At $50 retail, just the software units alone brought in $5 million. And if they charge $12 per month per account, that's $1.2 million a month, or $14.4 million a year, per 100,000 accounts. You're telling me that they can't afford to pay a few legal bills? I've no idea what programmers make, but you could probably run a staff of 10 on about a million a year. That's a lot of millions left over.
No, I don't think anyone at CoH is especially nervous about this. Yet.
kingbobb wrote...
At $50 retail, just the software units alone brought in $5 million.
Not to quibble with your main point in your post - though I still think Marvel's on some pretty shaky ground here, I do understand why they're doing what they're doing - I'm going to have to take your financial statements to task.
You seem to be assuming that a game developer profits 100% of the retail price. Of course, that's not true. One industry insider estimates that for a game that retails at $39 USD, the game developer makes $25 profit. So we're immediately down to half of the profit you estimated. There are also the costs associated with maintaining the game servers in a persistent online world such as this, but that's what the subscription fee is supposed to be for.
Now granted, this still means that the developer is making a lot of money, but I don't think it's fair to exaggerate.
[i]When you choose a 'Scrapper' character type, the game makes a distinctive 'Snikt' sound. Then you can go and choose the Claws powerset-- which looks exactly like Wolverine's claws. Then, you can choose Regeneration, which allows you to heal faster in various ways. Then you get to character creation. About 5 clicks later you have, without a doubt, Wolverine.[/i]
Well most of that is true, the "About 5 clicks later" part is false. While it would take 5 clicks if you didn't want the character to look like Wolverine, but only have his powers, it would take possibly hundreds of clicks to approximate his costume. Clicking through costume options and colors to make a costume can take an hour or more to make a nice design in City of Heroes.
Totally agree with you, Jeff Lawson. My numbers are clearly gross numbers, just to get an idea of the kind of money MMOs take in. Servers, buildings, all that takes a lot upkeep in terms of cash. But the equipment is mostly a sunk, one time (with limited replacement costs) expenditure. With monthly fees, MMOs take in a ridculous amount of money every month.
A casual search found that CoH reached 100K accounts in May 2004, barely a month after release. I think that's a world-wide number. They don't get to pocket all that cash, but they're still making an obscene amount of money. I'm guessing that PC games don't cost $20 million to make these days, so the profit margin here has to be pretty big.
kingbobb wrote...
I'm guessing that PC games don't cost $20 million to make these days, so the profit margin here has to be pretty big.
That got me wondering, and a quick Google search revealed this article:
"Today the average budget to build a top-10, best-selling game is $7 million to $8 million, with another $7 million to 8 million on top of that for marketing."
So if you look at game development costs only, yes it is a far cry from $20 million...though costs are on their way to that level. I would imagine that a MMORPG such as CoH would be in the high end of that figure, maybe even a little more.
After all, they probably had to hire a lot of designers/artists to include the massive customizability that's causing them so much trouble now. :)
Just yesterday I was showing my friend how easy it is to make clones. It didn't take me hours at all. 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. That's why there are so many of them.
I don't think Marvel will win the case. Cryptic knew this was coming since they started planning this game 4 or 5 years ago. If they don't have a dozen plans covering this event, then they're not very bright. And so far, Cryptic has proven to be a great company with excellent public relations, at least.
when Marvel had a recurring X-Men character named S'ym who looked a lot like Cerebus on steroids?
Oh my! I never made that connection before! Cool!
So tell me, is this legal or not?
">http://www.livejournal.com/community/justiceleague/19114.html
Not in the least.
If DC wanted to send a "Cease And Desist" letter to the artist/blog owner/Live Journal they could. And if they weren't answered, they could sue..and there isn't a leg to stand on in defence. (saying you were doing it for free doesn't mean jack--try handing out free photocopies of Sir Apropos and see how long it takes PAD to wack you).
An argument here is the concept of "enabling" technology. IT's the idea that Peer To Peer systems like Napster or Bit Torrent, or in this case the MMORPG "enable" people to violate copyrights. That's why they're going after COH, not because they did something, because they "enable" someone to do something.
This is a big Republican cause. You'll see the polical pawns of the RIAA use this to try to squash things like the iPod and others. IT's the concept of litegate rather than innovate.
(Note, though, you won't see the "enable" argument used against gun manufaturers, though.)
Something no-one has mentioned yet-
Every time the game is started, the player has to agree to the "User Agreement". Clause 6(c) states:
"To the extent that NC Interactive cannot claim exclusive rights in Member Content by operation of law, you hereby grant (or you warrant that the owner of such Member Content has expressly granted) to NC Interactive and its related Game Content Providers a non-exclusive, universal, perpetual, irrevocable, royalty-free, sublicensable right to exercise all rights of any kind or nature associated with such Member Content, and all ancillary and subsidiary rights thereto, in any languages and media now known or not currently known."
In other words, the characters the players create belong to NC Soft. City of Heroes has over 175,000 subscribers. A subscriber may have up to 8 characters per server, of which there are 11. Thus, there are an awful lot of character designs & names that people have come up with that are the property of NC Soft.
Marvel may just be making a very large rod for their own back here. Not to mention opening the door for lawsuits if they do their own superhero MMORPG.
It would appear that Marvel have decided to be asses over this issue. I find myself sincerely hoping they get spanked.
About game development costs:
One thing to note about these MMORPGs is that as long as the game is running, there is never a point where it becomes almost completely profit. Once a PlayStation game comes out, there aren't really many further costs - advertising, paying to produce the CD/DVD, and minimal tech support are about it. A game like City of Heroes has all that plus server maintenance, ISP bills, a LOT of tech support, constant ongoing software development, and probably more that I just don't know about.
I can't say for sure, but I'd be surprised if NCSoft & Cryptic have made a profit from it yet. I'm sure they will, and that they will be raking in the cash for years (which is why it is being published, of course).
None of this has much to do with whether or not Marvel will win, of course.
[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.
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 asses 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.
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.
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
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!
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
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...
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/
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 arse. 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!!
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.
