MARVEL SUES CITY OF HEROES PRODUCERS

[MattBrady]

According to a report from the Associated Press, Marvel has filed suit against the producers of the popular super-hero MMORPG, City of Heroes, NC Soft and Cryptic Studios Inc. The suit claims that the game violates Marvel’s trademark characters. Marvel is seeking unspecified damages as well as an injunction to force the two companies to stop using its characters.

While the game does not have, or feature Marvel characters, Marvel claims that the game’s character-creation engine allows players to create characters which are virtually identical to its characters, such as a giant, green ‘tanker’ style character whose powers are science based, which would be similar to the Hulk; or a mutant-based characters whose powers and costume could be seen as being nearly identical to Wolverine.

Marvel also claims that the game allows players to name their characters after its characters, though, according to the City of Heroes rulebook, players are not allowed to name their characters after copyrighted characters, and doing so is a violation of the game's Terms of Service; though quasi-identical variations would be able to get through the name system - for example, the City of Heroes Official Strategy Guide (licensed by Prima, and approved by NCSoft and Cryptic Studio) includes a comic strip where three characters that look like Marvel's Wolverine, calling themselves Wulferine, Wolvereen, and Wulverine, joke about who's the "real" character.

While Marvel claims that NCSoft and Cryptic Studios are responsible for what is on their servers where player play the game, at issue is also whether or not the companies can be held responsible for what players wish to do, and whether or not NCSoft and Cryptic should be acting as de facto agents for Marvel in actively protecting Marvel’s copyrights.

Also mentioned in the suit is Marvel’s allegation that the ability of players to create characters so close to Marvel characters has disrupted its business prospects for seeing its own MMORPG based on Marvel characters, which has been in development at Vivendi for years.

If the suit does go to court, pundits are already pointing out that it will be a landmark case in the matter of electronic rights.

From the AP Article by Alex Veiga:

”The Marvel lawsuit appears to be the first to raise this question in the scope of an online game. But early copyright infringement lawsuits brought by recording companies against pioneer file-sharing service Napster successfully argued Napster was liable for its customers' sharing of music online because they could do so only by accessing the company's computer system.

”The argument can still be made that "City of Heroes'' is only empowering users to the same degree that an establishment like Kinkos enables customers to make paper copies of copyrighted material, said Fred von Lohmann, senior intellectual property attorney with the Electronic Frontier Foundation.

"Is it a violation of copyright to make up a character in the virtual world or is that fair use?'' von Lohmann said. "This is really untested ground in the courts.''

The move is in line with Marvel's previous actions, specifically in June of 2003, when Marvel shut down a site that provided skins (designs for characters) resembling Marvel characters for Freedom Force. In that instance though, Marvel went after the producers of the skins (who were not doing it for profit), rather than Irrational Games, the studio which produces Freedom Force. With City of Heroes you cannot import skins which are external to the game, rather all characters, from look to powers, must be created using the game's tools.

[Kerrz]

This is like the family of Tolkein suing Blizzard for someone walking into World of Warcraft and creating an orc named Grishnakh. (Which I would recommend they do if Marvel wins this lawsuit...)

I fail to see how they can feel justified in this.

[burmart]

Originally posted by Kerrz
This is like the family of Tolkein suing Blizzard for someone walking into World of Warcraft and creating an orc named Grishnakh. (Which I would recommend they do if Marvel wins this lawsuit...)

I fail to see how they can feel justified in this.

You know, I would apply the same logic used in Fonovisa, Inc. v. Cherry Auction, Inc., in arguing this case. I think City of Heroes is screwed. They should settle.

[Tom Daylight]

I can see both sides to this argument. This is going to be a very difficult case.

[Sammycomic]

I hear they're thinking of suing Pencil manufacterers for creating a product that allows people to draw characters they have exclusive reproduction rights to.

seriosuly this is retarded.

The legal department at marvel either needs better pointless busy work to occupy their time wile waiting for a real problem.

[George Stasky]

In case anyone has noticed, Marvel has sued just about everyone and anyone it can - not to "protect the copyright", but to add cash to the coffers through small but not insignificant settlements.
Expect Pixar to be next folks.......

[fredeur]

Next on the list, the Michigan Wolverines.


-->Sammycomic: lol ^^


Edit: hell, it's me next on the list!!!: i am french and i have drawn Marvel characters which i have put on my web site!!!
I am so screwed.

[Pack]

Originally posted by fredeur
Next on the list, the Michigan Wolverines.


-->Sammycomic: lol ^^

Or the encyclopedia which has basically gone around flaunting its listing under "W" for "wolverine" for years....

[Val]

I dunno about this.
This smells more like a money opportunity.
"The game is doing well, let's see if we can grab a slice."

How long before Marvel sues independent publishers because the characters in the book have similar powers and/or costumes to their own?
Of course, they probably wouldn't bother simply because indy books don't make any money.

I guess if the characters made for CoH out-of-the-box really are carbon copies with name changes, that's one thing.
But if they just have similarities, I don't see how anyone can sue for that. You have to prove without a doubt that the game character was derived from a Marvel character.

That aside, going after them for what a player does... that seems pretty low to me. If a player creates a skin of a Marvel character, and uses them on CoH game servers, they could possibly have it nuked by a server mod.
Of course, it's hard to police all of those games. You can't catch them all.

Now for users who do this in the privacy of their own home... blah? How can you sue a company for what the user does in private? Not to say they are suing for this, but if they are... yikes.

What's next? Will they sue the manufacturers of Quake, Doom, etc because players made mods that allow for skins of Marvel characters and so forth? I've seen Marvel characters show up in online deathmatch games for years.

But what do I know. If it was my characters, I may feel differently.

[Tupy]

Did DC ever sued Marvel for Mr Fantastic powers?

[Todoroff]

wah wah wah...some kids are making our characters

wah wah wah...we wanted to make our video game

wah wah wah...its not fair


See, another reason why Marvel sucks

Let's run down that list again:

1. Joe Quesada's pompous attitude and lack of professionalism
2. Multiple cover crossover events
3. Fifty-thousand X-Men books
4. Bendis books where....(dramatic pauses abound)....nothing happens
5. zzzzzzzzzzzzzzzz...wha'? huh? Oh, I'm sorry, I dozed off. I was reading a Chris Claremont book
6. Organic web shooters
7. Twenty-thousand Spider-Man books
8. Identity DISK! (hah, little boy! you didn't get a DC book, you bought a Marvel book thanks to our devious marketing plan!)
9. wah wah wah, some kids making up our characters in a video game and WE wanted to do that...wah wah wah!
10. Fill in your own

[dj_me]

The point is that "City of Heroes" inables players to create these characters. On the other hand, MARVEL could lose fans because of this; the players are just honoring their favorite comic character when they create it online. Still, if there is something in the Rules & Regs of the game that states that a character cannot be created and/or named to fully and/or mostly resemble ANY copyrighted character, then "City of Heroes" should have policed this and deleted the character as soon as they discovered them. MARVEL should win this case, but I hate that they have to go after other companies like this. Though its not their fault that the other companies do stupid sh*t like this.

[DBHughes]

This continuous display of small minded greed has really soured my attitude toward Marvel. If the Marvel MMORPG is quality, people are going to buy it anyway; there is no need to sucker punch City of Heroes as a pre-emptive strike. The focus here should be on creating a better game than City of Heroes; not on tearing City of Heroes down so that consumers are *forced* to accept whatever Marvel cranks out.

On another issue, why is Marvel producing a book like Supreme Power if they are so concerned about similar characters? What about the Shi'ar Imperial Guard? DC is more of a class act, so they'll likely never sue Marvel; but this is a perfect example of the hypocrisy Marvel is demonstrating here.

[Bakema NL]

Hmmmm, it's also free advertising for Marvel characters. The game has been out for some time now, a little odd they go after their rights now.....the game has proven to be a success, so yes, money is an issue.

[HUMMER]

Boy Marvel is getting really desperate. They must be headed toward bankruptcy again or something. It seems like every other week there is another company that Marvel is suing.

My personal opinion is NCSoft and Cryptic Studios cannot control every person that use their product. If a 12 year old fanboy wants to pretend to be Wolverine without being Wolverine Marvel should be happy that people like their characters that much. I can understand if people are using the names, but it states in the user agreement that people aren't allowed to do that. And I don't see anything wrong with using Wulvereen. That is every kids dream to be their favorite superhero. I know when I was a kid I thought that Batman was the best thing since sliced bread. You better believe if this game was around when I was a kid I would be Bateman with a cape and a cowl.

Marvel quit alienating your fans!

[burmart]

Originally posted by DBHughes
DC is more of a class act, so they'll likely never sue Marvel; but this is a perfect example of the hypocrisy Marvel is demonstrating here.

Wow. You have no idea what the word "hypocrisy" means or how business works, do you? It's also apparent that you have no idea how trademark or copyright law works. Marvel is fully within its rights to sue to protect it's copyrights and trademarks. And if you read Fonovisa v. Cherry Auction, you'll see that while it deals with bootleg records, the logic is still the same.

In Fonovisa, a record company sued a company that ran a flea market. One of the guys at the flea market was selling bootleg records, supposedly unbeknownst to Cherry Auction. The court found that even though Cherry Auction wasn't directly engaging in the selling of the bootleg tapes, they were vicariously (contributorially? It's been a while since I actually read the case) liable for the infringment. I would argue the same thing here. The users are creating superheros that are in violation of Marvel's copyrights, and City of Heros will probably be found to be contributoryially or vicariously liable.

[Stratocaster]

Originally posted by Todoroff
wah wah wah...some kids are making our characters

wah wah wah...we wanted to make our video game

wah wah wah...its not fair


See, another reason why Marvel sucks

Let's run down that list again:

1. Joe Quesada's pompous attitude and lack of professionalism
2. Multiple cover crossover events
3. Fifty-thousand X-Men books
4. Bendis books where....(dramatic pauses abound)....nothing happens
5. zzzzzzzzzzzzzzzz...wha'? huh? Oh, I'm sorry, I dozed off. I was reading a Chris Claremont book
6. Organic web shooters
7. Twenty-thousand Spider-Man books
8. Identity DISK! (hah, little boy! you didn't get a DC book, you bought a Marvel book thanks to our devious marketing plan!)
9. wah wah wah, some kids making up our characters in a video game and WE wanted to do that...wah wah wah!
10. Fill in your own

Ah, I see Bob Wayne has joined us here on Newsarama! Welcome Bob!

[Jimmy Palmiotti]

I think they have a legit case.

I know if they took one of my creator owned characters and worked a character with the same fire based powers and look into the game,just altering the name from...lets say " ash" to " mash" I would go after them in a heartbeat.


with marvel, this is a bigger scale, but boils down to the same thing. at the very least, I would open this all up for conversation between the companies.

when you own something you created, and someone copies it and makes small changes...sometimes its too close for comfort. thats like trying to tell me that the Incredibles is not going to effect the F.F. movie .

ah, we shall see. lol..

Jimmy

[MattBrady]

Originally posted by DBHughes
DC is more of a class act, so they'll likely never sue Marvel; but this is a perfect example of the hypocrisy Marvel is demonstrating here.

YOu do realize that DC currently has a few, and has as long a history of suing companies where it feels its marks and copyrights have been violated?

Kryptonite locks, anyone?

I know the natural shift of fans is to sharpen pitchforks and light torches and charge Marvel, but let's try to keep some perspective here - corporations will do what they feel is needed if they feel there is a threat (or actual) copyright/trademark violation or dillution. Cryptic would do, or would be tempted to do the same if one of their trademarked heroes from the game, such as Statesman or Ms. Liberty showed up in a Mvl book, or say, in Freedom Force.

Again, as I said, I know that the view that Mvl is the oppressor and wrong will always be out front, but there are larger issues here - more important ones than "Marvel sux! W00t!"

MattB

[Samy Merchi]

What would Marvel expect NCSoft to have done?

To create a superhero genre game where you can't make a super-strong, invulnerable character?

To have left CoH's costume designer limited so that players would only have the ability to pick from a series of inoffensive stock costumes?

Or name-wise? To have a filter which would alert admins to common name violations, or being responsive to player complaints about fellow players' ToS violations? As I understand, NCSoft *has* done both of these. I know I've heard repeated stories about complaints about players who play 'The Incredible Bulk' or whatnot getting their characters yanked.

So I'm quite frankly at a loss regarding what more NCSoft could've done, and still have come out with a superhero game.

Honestly, if Marvel wanted to prevent the players from being able to make Colossus, or Havok -- those powers are so institutionalized in the superhero genre that I can't imagine making a game in that genre that wouldn't have the option of tank or blaster powers.

I am honestly completely flummoxed as to what NCSoft could've possibly done to avoid this, other than actively go for obvious violations when they're spotted...but as they're human, some are always going to slip under the radar.

And we also get into the whole problem of, when is a violation too close to the original character? If you make an Aurora knockoff that flies much slower, doesn't have a bright flash powers but instead only white energy blast powers, the costume is subtly different and the name is instead Starstreak...well...where does the boundary go? Slightly different looks, powers and name...it gets into very shaky ice, and very difficult to determine minutiae.

I don't know how law works, so I can't predict which side will win, but to my moral sense, NCSoft are already the winners in this.

[HUMMER]

Originally posted by Jimmy Palmiotti


I know if they took one of my creator owned characters and worked a character with the same fire based powers and look into the game,just altering the name from...lets say " ash" to " mash" I would go after them in a heartbeat.

I would agree with you if it was the company creating the characters for people to use but this is not the case. The users that are using the game create their own characters however they want them to look. Like I said a 12 year old fanboy doesn't care who owns the character, they just want to be them.

[atomik86]

damn...u kno whose next on the soon-to-be-fucked list? ppl who have tattoos of marvel characters. seriously though, marvel is going over-board with these lawsuits. that's like saying linda lee can sue every company whose character resembles her late husband bruce lee. there's so many of 'em. law from tekken. fei long from capcom. even shang chi, master of kung fu by marvel, just to name a few. this reminds me of one letter in a recent copy of wizard where sumone questioned if marvel could sue a person in reality of they developed spider powers, honed it, and doned a costume calling himself spider-man. marvel is just looking for any and every reason to sue somebody. last time i checked, they werent paying likeness fees to samuel l. jackson for the uncanny resemblance to nick fury in the ultimate universe. i dunno. it just seems so childish.

[Spiph]

DC isn't any better, they just sued Kryptonite Locks for copyright, and that wasn't even about likeness.

the fact is Marvel and DC hold a copyright on those characters as individual entities (regardless if Elastic Man and Mr. Fantastic have similarities). All aspirin is basically the same, yet there's 50 different brands and varities out there.

Same thing happened with Everquest and the Tolkein estate, D & D too, I believe, even though neither EQ or D&D were using the likenesses and names of Tolkein characters, and certainly not in the same context of Middle Earth...they were formats and exploitations of characters unforeseen by the original creators.

its bad enough people are scanning and distributing books over p2p which is notoriously uncontrollable, but here's a concrete way for a company to prevent exploitation of its characters (preventing certain skins from being created, names being used, combinations of powers and names and skins) and they have to step up and claim their property. People whine about how its screwing the fans over, that Marvel wants to force people to use its stuff in order to make money...and why shouldn't they? If they create a crappy product, at least they can be blamed with creating a crappy product, instead of a product thats just not as good as something else already on the market. If you force a company to make good product, instead of just making the product that will earn the fastest. cheapest buck...maybe they'll stop making crappy liscensed games.

worked for Star Wars, finally, with KotOR

[RyanMcLelland]

That's it. I'm buying the game today and making my own character. But it will be me and my superpower will be...um...ah forget it, I won't have a superpower. If you see some guy just walking around in the game wearing a leather jacket and sunglasses its me, so just kill me quickly so I can go about my day.

[Moonbeam]

I haven't played the game, but I've seen enough of it to know you can't control what characters the players put together -- it's the players who are creating these "similar" heroes. Why? Because they're Marvel fans! The company should be flattered.