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2005.02.08 (Tue) 09:29
In a casual perusal of the forums for the MMORPG City of Heroes, from NCsoft and Cryptic Studios, we came across a reference to one of the most ridiculous examples of frivolous lawsuits: Marvel Enterprises™, the owner of so many superhero comic franchises (including X-Men™, Spider-Man™, The Incredible Hulk™, and The Fantastic Four™), is suing NCsoft and Cryptic Studios for copyright and trademark infringements:
Marvel Enterprises is suing two firms behind a computer superhero role-playing game it claims allows players to make virtual characters that are too similar to "The Hulk," "X-Men" and other heroes in the comic book company's stable.
The lawsuit claims South Korea-based NCSoft and San Jose-based Cryptic Studios violated Marvel's trademark characters in their game City of Heroes. Marvel seeks unspecified damages and an injunction against the two companies to stop using its characters.
Can you fucking believe it? Marvel™ is suing the game makers because players have the ability to make characters that bear similarities — slight or remarkable — to their copyrighted superheroes. This is a perfect example of an attempt to artificially prop up profits by wrongly stifling someone else's technology and screwing consumers.
Fred von Lohmann of the Electronic Frontier Foundation points out Marvel's major mistake in a Law.com article under "Legal Technology":
For kids reared on comic books, what could be more natural than tumbling into the backyard with their friends to make up new adventures for their favorite superheroes? How many comic book fans adorned their grade-school notebooks with hand-drawn images of the X-Men, the Incredible Hulk, and Captain America?
Apparently Marvel Enterprises, Inc., which owns the copyright and trademark rights in these classic superhero characters, thinks that these generations of American children were all infringers, little better than the downloaders targeted by the music and movie industries. At least that's the impression left by a complaint filed Nov. 10 by Marvel against NCSoft Corporation and Cryptic Studios, the operators of an online game called "City of Heroes."
"City of Heroes" is one of the more recent examples of a videogame genre known as massive-multiplayer online role playing games (sometimes abbreviated MMORPG or, more simply, MMO). This is the digital equivalent of playing Captain America in your backyard -- players create characters that they play in a "virtual world," banding together with other players to take on quests, gain experience and acquire virtual possessions.
Enter Marvel and its league of lawyers. Marvel filed suit against the operators of "City of Heroes," alleging copyright and trademark infringement, as well as a variety of state law claims. The chief claims are for contributory and vicarious copyright and trademark infringement. In other words, Marvel's complaint is premised on the notion that NCSoft and Cryptic should be held responsible for the infringing activities of the players in the game. According to the complaint, the players are infringing Marvel's copyrights and trademarks by creating characters that are recognizable copies of Marvel characters, including Wolverine and the Incredible Hulk.
Yes, you read that right -- Marvel's claim is based on the idea that private individuals who pretend to be Wolverine for fun in a video game are breaking the law. Since when is it illegal to pretend to be your favorite superhero? Should parents be policing their kids, lest they be caught "pretending without a license"? Were all those drawings of the X-Men on grammar school notebooks evidence of infringement? And what about all those homemade superhero Halloween costumes?
So, by Marvel's logic™, at least half of all Internet users on the planet should be arrested and charged with copyright infringement. Freeze, ElwoodBlues1213! Hands up, ZaphodBeeblebrox1983! Not only did you guys use someone else's character names, but you used pictures of those characters for your avatars, too! There's a special room set aside in Hell for people like you.
Get real, Marvel™. People in the world outside your myopic money-grubbing tunnel-vision™ are enjoying your (and others') creations, which is their absolute right; and if, for recreation, they wish to invoke their favorite characters — whether by nominal, apparent, or functional likeness — you must be absolutely fucking brainless to try and stop them.
As Junior Member "Kerrz" said on a Newsarama.com forum, this is akin to the Tolkien estate suing the creators of any of the numerous fantasy (swords 'n' sorcery) MMORPGs because a player creates "an orc named Grishnakh." It's preposterous, it's self-defeating, and it's just plain stupid.
Hey, Marvel™, while you're at it, why not sue Wolverine Boots and Shoes? Come on, Wolverine™ is one of your most popular characters! How dare some footwear concern commandeer your name?
Oh, wait, that's right — you can't copyright a name. Or a word, or a phrase. You can trademark it — of course, if that trademark falls into the vernacular and becomes a generic term, you lose your trademark rights. (Or if your trademark was already in common use — we're looking at you, McDonald's.)
So we guess you're off the hook, too, ElwoodBlues1213 and ZaphodBeeblebrox1983.
As Fred von Lohmann notes:
Marvel's assertion of copyright and trademark rights over the noncommercial expressive activities of its fans is both unprecedented and unnecessary. The fundamental justification for copyright is that we must tolerate a limited statutory monopoly on expression in order to secure an adequate incentive for the creative industries. That's an adequate incentive, not the maximum conceivable incentive. Trademark law, meanwhile, is meant to protect the public from confusion in the marketplace for products and services. Measured by these yardsticks, Marvel's claims fall short. Does anyone believe that Marvel will fire its authors and close up shop if it can't prevent little Johnny from pretending to be Wolverine online? And no one is going to be confused into buying something by mistake when they run into another player in-game who has donned the green skin and purple shorts of the Hulk.
There are definitive purposes of intellectual property laws, as Mr. von Lohmann states: to create an incentive for creators (the licensing of their work, which brings them profit), and to prevent commercial confusion (or deception). Marvel™ is notorious for violating the first purpose: witness the "X-Odus" of the 1990s, the most massive of many defections of comics creators whose rights to the characters and concepts they had created were wholly owned and controlled by Marvel™ (per their contracts). And now Marvel™ is crying foul in regard to the second purpose, despite the total lack of commercial intent on the part of anyone creating a City of Heroes character. Hey, do we really have to say it? Well, one more time for the cheap seats: bullshit.
There are so many examples of legitimate infringement suits waiting to happen; we can recall a local doughnut shop where we used to live called the "Donut Dugout." No big deal, right? Until, of course, you see their logo:
If that's not trademark infringement for the express purpose of commercial confusion (or deception!), then perhaps our intellectual property laws aren't quite as rigorous as they could be.
Is there any merit to Marvel's™ complaint? In the most minimal sense, yes. Consider this screenshot from a session of City of Heroes gameplay:
Certainly, this character is a blatant ripoff — or perhaps, homage — to Marvel's™ incredible Hulk™. And sure, the body types, costumes, origins and powers available to a City of Heroes player bear remarkable similarities to the characters found in nearly any panel, on nearly any page, of a Marvel™ comic book; that's how this player was able to create such a facsimile of the Hulk™ in the first place.
There's a simple problem, here: what is the public perception of a "superhero," anyway? Typically, there are men with athletic or ludicrously bulky musculature, women with breasts that seem to defy gravity (the result, no doubt, of the X-factor™ on the extra X-chromosome) and waist-to-hips ratios rapidly approaching zero. There are unusual colors of skin, hair and eyes. There are the skintight costumes, often with emblems and decorative accessories.
All of this, by now, is de rigeur for the contemporary superhero. When the public thinks superhero, these elements are what they're actually envisioning. So if you want to create a project (a comic book, a painting, a cartoon, a computer game) that depicts superheroes, nine times out of ten you'll go with the flow, so that people will actually perceive your creations as superheroes.
Where did this tacitly enforced standard for superheroes come from? That's right — Marvel™ themselves. In 1978, Marvel™ published a book called How to Draw Comics the Marvel Way™, an instructional book that taught aspiring comic book artists how to emulate the style established by Marvel™ artists. As one member of the Two Percent Company could tell you, any kid who was "serious" about drawing would copy comic books religiously, despite the fact that "drawing the Marvel Way™" sets you back years in your figure-drawing skills.
The point here is that Marvel™ quite deliberately influenced two generations (and counting!) of superhero creators and artists, simply by: (a) releasing this book; and (b) becoming the gold standard for comic book superheroes. So — what, was this all a nefarious scheme from the very beginning: to mold the concept of superheroes and ingrain that concept within the brains of countless other creators, so that these creators would inevitably make superheroes that — simply by virtue of being superheroes — resemble Marvel's™ heroes, and then Marvel™ could sue them all for drawing like them? We're not conspiracy nuts, but the way Marvel's™ been acting lately (including their obstinate opposition to granting Stan Lee — the granddaddy of all superhero creators — more control over and profit from the characters he's created), it's not such a stretch. Of course, this ignores the fact that you can't copyright an artistic technique or method any more than you can a name — only the end product itself can be copyrighted.
Sorry, Marvel™. The billions of similarities between superheroes created by you, and DC, and City of Heroes, and anybody else are the inevitable result of form following function — if they want to make a comic book about superheroes, they have to draw what everybody else recognizes as superheroes. That doesn't mean they're ripping you off — they're just creating within the same medium and genre. Should the creators of The Honeymooners sue every sitcom that's come out in the last fifty years?
Perhaps, in the long run, it would be better if we all just drew comics God's way. Just wait, though — Marvel's™ next suit will be brought against the writers of the bible. After all, that "God" character is an awful lot like the Beyonder™, don't you think?
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[ Filed under: % Business & the Economy % Computers & the Internet % Greatest Hits % Media & Censorship ]
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The Two Percent Company, 2006.11.18 (Sat) 14:40 [Link] »
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