Marvel Sues City of Heroes Makers

Walkiry (and many, many others) writes "In yet another copyright bickering lawsuit, Marvel is suing NCSoft and Cryptic Studios over their MMORPG City of Heroes due to copyright infringement, apparently because of the costume creator. "Marvel argues that the game's character creation engine easily allows players to design characters that are virtual copies of its own superheros, including 'The Incredible Hulk'. Marvel seeks unspecified damages and an injunction against the two companies to stop using its characters." There are quite a few people suspicious that this is nothing but an effort by Marvel to undermine Cryptic Studios' successful game to prepare for the launch of their own comic book based MMORPG." USA Today has the story as well.

Re:Oh noes!

[dykofone]

I was looking for a way to give Marvel some credit here, being that I've never seen the CoH character creation interface. Maybe there's presets that look all too close to Marvel characters? Certain outfits that are almost identical? I'd be like Bic making a stamp in the shape of Hulk or Wolverine: while you're still putting it on paper, Bic made it that much easier for you to recreate Marvel's IP.

And then I read this:

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.

And realized Marvel is completely out to lunch on this. They claim that CoH is infringing IP because they didn't disallow people from typing in the specific, trademarked names? Should CoH keep a database of every trademarked name and lock them out as character names? "Sorry, you can't be Kroger, that name is already taken. [krogers.com]"

They've Been Trying

[kannibal_klown]

I know they've ben trying for months now.

If they detect user's with "Hulk" in their name, they will often reset that character's name to "Generic Hero x" and give them a day or so to pick a new one. This is even if the character looks nothing like the Hulk.

I mean, please. Some characters are just so friggin easy to copy. The Hulk is a big green (or grey) buy with torn shorts. Is it Cryptic's fault that Marvel isn't very original in their design?

Sure, a character like "The Punisher" or "Wolverine" would also be easy to duplicate in the game, but who cares! People aer building the character they want. They want someone with sharp metal claws and a ever-familar beard, then so be it. If they want to be big and green, so be it. If they want a red and gold armor suit of battle armor, let them.

Personally, I think DC would have more of a leg to stand on. They have tons of heros with pretty generic looking costumes (solid-color tights with an emblem). Many of Marvel's characters have hard to copy designs.

Shame on Marvel, or at least on their legal department.

Oh well, I stopped playing a few weeks ago anyway. It just stopped being fun.

Re:In a parallel universe

[randalx]

Windows Paint users should be safe since Microsoft has that wonderful customer idemnification now.

Re:Oh noes!

[Kierthos]

Well, the Terms of Service specifically forbid using any name for a character that is trademarked, copyrighted, etc. by a third party, with loss of your account as a penalty for doing so anyway.

Mind you, when I first started playing, there were a lot of comic-book clones, but they are extremely rarer now because most players, it seems, would rather make something that is uniquely theirs rather then be the 18th or 63rd Tick rip-off.

Kierthos

Re:How to draw Marvel.

[Valegor]

You can't blame Stan Lee. He hasn't been anything more than a figurehead in a long time. To the best of my knowledge he does not work for the company in any way at the moment. Blame the company not "The Man."

This isn't about just the tool

[thenerdgod]

Back when we were all creating our characters for our Communist supergroup, we had a bit of a back-and-forth with Cryptic over who, exactly, owned our ideas, especially if the characters we used were ideas we wanted to turn into a comic, or based on existing ideas we had used in a comic.

It came down to the EULA which states that your character and all derivations or representations thereof are property of Cryptic and NCSoft. To which I asked pointedly "What about the Fantastic Four [nerdgod.com]?"

This was going to bite them in the ass eventually, as they allege to own everything you create, even if it's not yours to create.

My suspicion, as I've voiced elsewhere, is that they will be required to remove these characters from the game, and pay damages to Marvel, and probably DC and whoever else, in the end.

Then, of course, there's the obvious ownership issue of this guy [nerdgod.com].

Marvel is being predatory

[spyrral]

The worst part about this little tale is that the makers of COH made a good faith attempt to eliminate look-alike heroes who attempted to use trademarked names. They even accepted lists of names from the major comics publishers for their block list.

Re:Good News: Court abuse will only hasten things.

[Valegor]

WWF sued WCW for using "Hulk" when Hogan switched over. Marvel then sued WWF for using "Hulk" for all those years. To the best of my knowledge WCW decided to call him Hollywood Hogan at that point and WWF dropped it's suit. When WWF dropped it's suit then Marvel dropped thiers. In that case Marvel clearly had to counter sue or WWF would have set a precidence and taken the copywright for "Hulk". Incedently the name Hulk Hogan was taken from the Incredible Hulk TV show with Lou Ferregno(sorry if I misspelled that).

Re:They've Been Trying

[Phisbut]

People aer building the character they want.

From the City of Heroes' End User Licence Agreement [plaync.com] (paragraph 6c):

Members can upload to and create content on our servers in various forms [...] you acknowledge and agree that such Member Content is the sole property of NC Interactive.

So by uploading a Wolverine-like character, NC Interactive claims ownership of the Wolverine-like character, so NC Interactive is in trouble for owning and using a trademarked character in their game.
However...

You shall indemnify and hold NC Interactive harmless from and against any claims by third parties that your Member Content infringes upon, violates or misappropriates any of their intellectual property or proprietary rights.

So basically it's the user who's in trouble. I wonder how many of those users will get sued by NC Interactive in order to indemnify them.

Re:A new low.

[UWC]

The character creation process in CoH allows a LARGE amount of customization. When I created my character, there were no pre-set costumes or color schemes. You choose your origin, power types, and so on, a mix and match type deal. There's no particular "Hulk" power/appearance set to choose, though with the customizability I can see the allure of mimicking your favorite hero's power sets when you can.

Then you pick your character's appearance. There are a few body types including big bulky monster-sized guys (which I assume Marvel has not trademarked, Hulk being a Jekyll/Hyde homage/retelling already), which don't start out green or with purple pants. Again, there are people who use the engine's customization options to mimic their favorite hero, and of course the ones with simpler costumes (e.g. the Hulk wears... purple pants) are significantly simpler to copy than many other characters, the in-game copies of which are recognizable mainly because Marvel, DC, etc. have indeed done great jobs with making their trademarked costumes universally recognizable to the point where the in-game copes, which often have to improvise with incorrect patterns, equipment, and so on (because CoH does NOT actively try to allow creation of already trademarked characters) are still recognizable as the homages that they are.

Re:A new low.

[Babbster]

There are no "macros" per se. What happens during CoH costume creation is that you have three basic skeletons (male, female and "huge"), three body areas (head, upper body and chest) and multiple areas within those three areas to customize the look. Now, you can create, say, a character that looks exactly like Hulk by giving him the huge skeleton, green skin and hair, the closest face available and purple pants - that would be the absolute easiest ripoff to pull. You could make Cyclops by choosing the partial mask or mask with hair, a visor and his blue/yellow costume (with some tech accoutrements depending on which era you're shooting for) - again, a very easy one. The more complicated costumes could take a lot of time to build but you can get close to most of them.

Of course, all that being said, NCSoft does NOT provide templates for making ripoff characters easily (like being able to choose "Wolverine yellow/blue" or "Wolverine brown") and a player has to go to some effort to make a ripoff character - in most cases, it would be far easier to make an original design. Further, they specify in the terms of service that ripoff characters are not permitted, and when they are reported/caught they are forced to change names and/or costumes.

I don't know if Marvel is trying to shut CoH down or cripple it (like by making NCSoft remove particular costume traits so that customers can no longer make costumes that look like Marvel heroes). It seems to me that if Cryptic and company are making a good faith effort to police the ripoffs, that SHOULD be enough to get them off the hook. Of course, nobody ever said the law always made sense.

Actualy, CoH hunts for IP violators.

[arkham6]

They have STRICT warnings against this, and in their terms of service is the following.

(e) Character Name. In order to use the service, you must create a character and choose a name for your character to identify your character to other Members (your "Character Name"). You may not select as your Character Name the name of another person, or a name which violates any third party's trademark right, copyright, or other proprietary right, or which may mislead other players to believe you to be an employee of NC Interactive, or which NC Interactive deems at its sole discretion to be vulgar or otherwise offensive. NC Interactive reserves the right, in its sole discretion, to (1) delete or alter any Character Name or (2) terminate any license granted herein, for any reason whatsoever, including, without limitation, any suspected or actual infringement of any trademark or trade name right, copyright, or other proprietary right.

(f) Super Group Names, Super Group Member Titles, Battle Cry, and Character Description. While accessing the service, it is possible to name your Super Group, give titles to members of your Super Group, create a Battle Cry, and write a Character Description. You may not create a Battle Cry, Character Description, give a name to a Super Group, or give a title to a Super Group member that is the name/description/title of another person, or a name/description/title which violates any third party's trademark right, copyright, or other proprietary right, or which may mislead other players to believe you to be an employee of NC Interactive, or which NC Interactive deems at its sole discretion to be vulgar or otherwise offensive. NC Interactive reserves the right, in its sole discretion, to (1) delete or alter any name/description/title given to a Super Group, Super Group Member, Battle Cry, or Character Description or (2) terminate any license granted herein, for any reason whatsoever, including, without limitation, any suspected or actual infringement of any trademark or trade name right, copyright, or other proprietary right

Re:Oh noes!

[Robotech_Master]

The funny thing is, City of Heroes does (or at least, they say they do [cityofheroes.com]) have a filter that prevents the more obvious trademark names from being used.

I'm not sure whether that link will work for non-subscribers to the game, so here's the relevant bit:

Part of providing such a safe environment means we must ensure that all character names are created in a clean and positive light to meet the Teen Rating of the game while also following all copyright and trademark standards. In order to meet those ends, we have created a name filter to ensure that character names are acceptable for play within City of Heroes. This name filter is in place at character creation, meaning that each time a character is created and a name chosen, it must pass through this filter. Names that are included on this filter include certain copyrighted and trademarked characters, and also a slew of different categories (see below list) reflect derogatory names, foul language, ethnic slurs, inappropriate conduct, and referenced to body parts.

(I can't help but find that "referenced to body parts" bit amusing. Does that mean I can't name someone The Elbow?)

Of course, as anyone who's ever dealt with spam knows, no filter is foolproof and some names will always slip through the cracks.

The thing that particularly interests me, though, is that judging from that line about how they're also upset over the name thing, Marvel's main beef is with the ability to create look-alike/power-alike characters. And to a certain extent, this really can't be avoided. CoH's character design system includes a huge number of discrete costume elements--some of which, when taken together in specific combinations, can look reasonably similar to trademarked characters. (Sometimes it's not all that hard, either--big green muscular guy with purple shorts = Hulk.) But they can also be used in functionally infinite different combinations to create unique and original looks.

The interesting thing about this is that, though trademark names are verboten, creating look-alikes doesn't seem to be mentioned at all in the COH EULA [plaync.com]. For all I can see in the EULA, you could create a big, green, purple-shorts guy and name him "BigGreenGuy" with impunity, as long as you didn't call him something Hulky. And I think that could be a problem--I'm not a lawyer but I think that trademark isn't necessarily just name, but it also encompasses likeness.