NCSoft kicks Marvel's arse

Daehawk · Post by **Daehawk** » Fri Mar 11, 2005 12:11 pm

Some time ago we reported that Marvel were suing the City of Heroes creator & publisher because their MMORPG allegedly violated copyrights, by allowing users to create characters similar to their own. Well, it was today announced that the case has been dismissed, with the judge describing sections of Marvel's suit as, "false and sham:"

In a March 9 order, U.S. District Court Judge R. Gary Klausner agreed with NCsoft that some of Marvel's allegations and exhibits should be stricken as "false and sham" because certain allegedly infringing works depicted in Marvel's pleadings were created not by users, but by Marvel itself.
The judge also dismissed more than half of Marvel's claims against NCsoft and Cryptic Studios, including Marvel's claims that the defendants directly infringed Marvel's registered trademarks and are liable for purported infringement of Marvel's trademarks by City of Heroes' users. In addition, he dismissed Marvel's claim for a judicial declaration that defendants are not an online service provider under the Digital Millennium Copyright Act. The judge dismissed all of these claims without leave to amend, meaning that Marvel cannot refile these claims.

Austin · Post by **Austin** » Fri Mar 11, 2005 12:31 pm

Daehawk wrote:
Some time ago we reported that Marvel were suing the City of Heroes creator & publisher because their MMORPG allegedly violated copyrights, by allowing users to create characters similar to their own. Well, it was today announced that the case has been dismissed, with the judge describing sections of Marvel's suit as, "false and sham:"

In a March 9 order, U.S. District Court Judge R. Gary Klausner agreed with NCsoft that some of Marvel's allegations and exhibits should be stricken as "false and sham" because certain allegedly infringing works depicted in Marvel's pleadings were created not by users, but by Marvel itself.
The judge also dismissed more than half of Marvel's claims against NCsoft and Cryptic Studios, including Marvel's claims that the defendants directly infringed Marvel's registered trademarks and are liable for purported infringement of Marvel's trademarks by City of Heroes' users. In addition, he dismissed Marvel's claim for a judicial declaration that defendants are not an online service provider under the Digital Millennium Copyright Act. The judge dismissed all of these claims without leave to amend, meaning that Marvel cannot refile these claims.

Link?

portnoy · Post by **portnoy** » Fri Mar 11, 2005 12:32 pm

I have never played CoH but I must say...

WOOT!!!!!

I'm tired of large companies constantly badgering small companies and I am sick of all of these crazy lawsuits.

JayG · Post by **JayG** » Fri Mar 11, 2005 12:48 pm

It's mentioned here:

http://www.eurogamer.net/article.php?article_id=58233

GungHo · Post by **GungHo** » Fri Mar 11, 2005 1:03 pm

Good.

Sterling · Post by **Sterling** » Fri Mar 11, 2005 2:07 pm

Dismissing more than half the claims does not a victory make, unfortunately.

It's a step in the right direction, but this could still end up with CoH having to pay up or make changes.

Daehawk · Post by **Daehawk** » Fri Mar 11, 2005 2:14 pm

Link?

Sorry there was no link on the site I got that quote from..just the quote.

Jeff V · Post by **Jeff V** » Fri Mar 11, 2005 2:32 pm

portnoy wrote:I'm tired of large companies constantly badgering small companies and I am sick of all of these crazy lawsuits.

NCSoft is a small company? When did that happen?

Ridah · Post by **Ridah** » Fri Mar 11, 2005 5:31 pm

Compared to Marvel, NCSoft is a relatively small company.

Jeff V · Post by **Jeff V** » Fri Mar 11, 2005 5:49 pm

2004 Net Income: Marvel $124 million NCSoft: $105 million.

Not that much of a difference. Marvel has more revenue, but NCSoft has a more efficient bottom line. To call one a large company and the other small would be mischaracterizing the relative difference of the two: both are rather similar in size.

Odin · Post by **Odin** » Fri Mar 11, 2005 6:46 pm

Throwing out half of the claims only means that Marvel threw in every claim they could think of on the off-chance that some would unexpectedly stick. I'm sure there are still plenty left.

Sith

brettmcd · Post by **brettmcd** » Fri Mar 11, 2005 7:00 pm

The whole thing should have been thrown out, basically marvel is saying that because you can make someone who looks like one of their superheros with the CoH engine, that it is somehow a copyright violation.

Personally i think that would be like suing a pen and pancil manufacturer because someone could use them to draw the same superhero.

What this comes down to is Marvel is trying (or already has licenced) to licence its own superhero game and wants to beat the competition using the courts.

Odin · Post by **Odin** » Fri Mar 11, 2005 7:07 pm

Brettmcd wrote:Personally i think that would be like suing a pen and pancil manufacturer because someone could use them to draw the same superhero.

It's perfectly legal to draw them. However if you try to profit from them or display them for public consumption, f34r the lawyaz.

Sith

lokiju · Post by **lokiju** » Fri Mar 11, 2005 8:02 pm

Sith Lord wrote:
Brettmcd wrote:Personally i think that would be like suing a pen and pancil manufacturer because someone could use them to draw the same superhero.
It's perfectly legal to draw them. However if you try to profit from them or display them for public consumption, f34r the lawyaz.

Sith

Then they better go after ebay because there are hundreds of small time starving artists selling Marvel hero artwork...even commissions to create them.

Oh, and good for NCSoft, hope the other 1/2 are minor charges with little to no payoff.

gwartok · Post by **gwartok** » Fri Mar 11, 2005 8:36 pm

For those interested the EFF has some of the documents and screenshots from the case up for your viewing pleasure. I took a glance at Marvel's complaint against NCSoft and it was actually a pretty interesting read and not full of legal mumbo jumbo as I expected.

Apparently Marvel isn't just basing their compaint on the costumes themselves but also on the origins, archtypes, and names you can select when making your Marvel Superhero in CoH. Their beef is not only can you make a Wolverine look a like, but you can make a mutant scrapper with claws named Wolverine5 who looks just like him.

FWIW I still think NCSoft/Cryptic is in the right here and can only do so much to limit what their users do but IANAL so I'll let the courts settle it. If Marvel wins though I think it's going to be ugly for Cryptic. Marvel lists over 4700 copyrighted characters in the suit. I can't imagine what a nightmare it would be for Cryptic if they had to come up with some way to make sure no one made anything too much like any of those characters. If DC and some of the minor publishers jumped in too... ouch.

Odin · Post by **Odin** » Fri Mar 11, 2005 9:23 pm

lokiju wrote:Then they better go after ebay because there are hundreds of small time starving artists selling Marvel hero artwork...even commissions to create them.

I'd imagine they're hoping you'll buy them, send warning e-mails to the sellers, and get temp-banned while taking them out of circulation.

Smoove_B · Post by **Smoove_B** » Fri Mar 11, 2005 10:17 pm

Hopefully Marvel didn't get the latest issue of the City of Heroes comic book.

If they're not poking at the lion in the cage with a particular character in that issue...

lokiju · Post by **lokiju** » Fri Mar 11, 2005 10:28 pm

Sith Lord wrote:
lokiju wrote:Then they better go after ebay because there are hundreds of small time starving artists selling Marvel hero artwork...even commissions to create them.
I'd imagine they're hoping you'll buy them, send warning e-mails to the sellers, and get temp-banned while taking them out of circulation.

::jedi hand wave:: You will forget that lokiju ever did that...you will remember him being brave and only say good things about him from now on...

Sterling · Post by **Sterling** » Sat Mar 12, 2005 6:08 pm

Smoove_B wrote:Hopefully Marvel didn't get the latest issue of the City of Heroes comic book.

If they're not poking at the lion in the cage with a particular character in that issue...

I'd bet everything I have that Marvel has seen it, especially since I've seen it in comic shops as an independent title. That brings a whole new level of competition between the two, and there's no way Marvel's going to let this go.

Freezer-TPF- · Post by **Freezer-TPF-** » Sat Mar 12, 2005 10:35 pm

Sith Lord wrote:Throwing out half of the claims only means that Marvel threw in every claim they could think of on the off-chance that some would unexpectedly stick. I'm sure there are still plenty left.

My thoughts exactly.

Odin · Post by **Odin** » Sat Mar 12, 2005 11:26 pm

lokiju wrote:::jedi hand wave:: You will forget that lokiju ever did that...you will remember him being brave and only say good things about him from now on...

Yeah, right. That's going to work on a Sith Lord. Pathetic.

Giles Habibula · Post by **Giles Habibula** » Sun Mar 13, 2005 12:37 am

Sith Lord wrote:
Brettmcd wrote:Personally i think that would be like suing a pen and pancil manufacturer because someone could use them to draw the same superhero.
It's perfectly legal to draw them. However if you try to profit from them or display them for public consumption, f34r the lawyaz.

Sith

I can definitely see how it'd be illegal to profit from drawing a copyrighted character, but for a person with a pencil to simply draw it and then paste in in his livingroom window for others to see...That can't be illegal!

Odin · Post by **Odin** » Sun Mar 13, 2005 12:54 am

His livingroom's not public space. Whether posting it conspicuously on his property constitutes a public display or not is beyond me. But legal hair-splitting aside, the point remains.

Sith

lokiju · Post by **lokiju** » Sun Mar 13, 2005 1:20 pm

So I have to ask...if a hero in the Marvel Universe has claws, then do they own the copyright of any heroe unsing claws? I mean, come on, Marvel got many of their heroes from copying DC heroes right? I might be wrong, and I fully expect to be corrected. If Marvel had a character who used her left nostril to breath out fire, and her left to breath out ice (just being silly and extreme here), then does that mean another company can't have that same power with a totally different character? NCSoft gave people the chance to use a hero with claws...but in no way did that necessarily make anyone a Wolverine IMHO.

Darn spelling.

Blackhawk · Post by **Blackhawk** » Sun Mar 13, 2005 2:40 pm

Claws are probably the closest NCSoft comes - CoH claws are very, very similar to Wolverine claws. On the other hand, you've hit on one of the problems with this case. If Marvel has the right to prohibit anything similar to any of their characters, and has 5,000 copyrighted characters, it would be almost impossible to come up with anything in the superhero genre that didn't resemble a Marvel creation.

Sterling · Post by **Sterling** » Sun Mar 13, 2005 2:41 pm

NCSoft gave people the chance to use a hero with claws...but in no way did that necessarily make anyone a Wolverine IMHO.

NCSoft also gave people the ability to play Wolverine. Or the Hulk. Or the Punisher. You can make suprisingly good clones of those three characters in particular.

In the end, it's still the gamers using the editor to create their characters. In most cases the carbon copies are generated using a combination of appearance features that don't necessarily stem from Marvel's IP. Green skin and purple shorts are hardly Marvel trademarks alone. Neither is being really really strong and being able to shrug off small arms fire. Obviously if you combine them, you get a very similar version of the Hulk. But I can't really fault NCSoft for offering the options on their own, and expecting them to prevent certain combinations just to keep from stepping on Marvel's toes is pretty silly.

If I remember correctly, the EULA specifically states that you are not allowed to create copies of trademarked/copyrighted characters. It is enforced, as well. That really should be all the CYA NCSoft needs.

lokiju · Post by **lokiju** » Sun Mar 13, 2005 3:03 pm

So I'd like to see which of Marvel's claims are sticking? I'm really upset by all this. It has major implications for the future of media. Ih CoH gets nailed with this, then where does that leave future superhero products? Scared and timid, and that is not a good thing.

What I don't get is, doesn't it actually make for good marketing to let people play with your characters? I mean hell, I went back to reading JLA comics simply because of playing JLA mods in Freedom Force. It's like free product placement. Marvel even banned all FF mods too...and I have to wonder if somewhere down the line it will bite them in the arse (and help DC's market share I hope).

Odin · Post by **Odin** » Sun Mar 13, 2005 4:02 pm

lokiju wrote:What I don't get is, doesn't it actually make for good marketing to let people play with your characters?

Not if YOU plan to try to market those same characters in a game of your own - you end up competing with yourself.

NCSoft's problem is that they knew they were taking a chance (or they wouldn't have written the EULA the way they did). They had two choices - either figure out a way to ensure that it was near-impossible to violate somebody's IP with your character (an incredibly difficult prospect, granted - but then nobody FORCED them to make a superhero game) or risk getting sued. They decided to take their chances and this is what happens. It's our legal system at work. If the courts agree with the majority of you folks that the claims are baseless and unfair to NCSoft, then Marvel will lose. Otherwise, there will have to be changes to the game or monetary reparations or some other sanction against NCSoft for not being clever enough to avoid an issue they were perfectly well aware of when they decided to create CoH.

Sith

Octopus Overlords

NCSoft kicks Marvel's arse

NCSoft kicks Marvel's arse

Re: NCSoft kicks Marvel's arse