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Games Entertainment

Marvel Clamps Down On Game Skins 125

Posted by simoniker from the spidey-evicted-from-sims-house dept.
mrleemrlee writes "Marvel Entertainment has sent a cease-and-desist letter to The Skindex, which houses skins for customizing computer games such as The Sims and Freedom Force. The Webmaster has responded by pulling the website's content and publishing a copy of the letter. This is interesting in that such skinning has been going on for a decade, at least since Doom. Only now has Marvel decided to protect its IP; what might it have in store? Do other sites have anything to worry about?" Are user-created game skins of their characters good publicity for companies like Marvel, or an unacceptable copyright violation?
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Marvel Clamps Down On Game Skins More

Marvel Clamps Down On Game Skins

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  • Trademarks (Score:5, Informative)

    by Darthnice ( 591865 ) on Wednesday June 18, 2003 @02:26PM (#6236070)
    Are user-created game skins of their characters good publicity for companies like Marvel, or an unacceptable copyright violation?

    Unfortunately, due to the way Trademarks work, if you don't protect your Trademark, it will enter the public domain. It sucks because though the guys writing comics would probably love to see spidey and green goblin skins in player's games, it delutes the brand, and if unprotected would allow others to actually make Spiderman comics without any payment to Marvel. Marvel would lose the Spiderman brand.

    • I believe you're right about protecting your trademark. But couldn't a compromise of some kind be worked out? The skin site could put all kinds of disclaimers on the site about how the copyright belongs to the gamemaker, and Marvel wins because their fans stay happy and will be more likely to buy the expansion pack, or whatever.
      • Actually, I think my comment above isn't quite on target. I didn't realize that Marvel wasn't actually the game maker, but rather was a third party whose characters were being used by skinners to create cool characters for various games made by other companies. So Marvel doesn't really have a financial upside to this practice (at least in a short-sighted view).

        Still too bad.

        • Re:Trademarks (Score:4, Insightful)

          by notque ( 636838 ) on Wednesday June 18, 2003 @02:41PM (#6236239) Homepage Journal
          Actually, I think my comment above isn't quite on target. I didn't realize that Marvel wasn't actually the game maker, but rather was a third party whose characters were being used by skinners to create cool characters for various games made by other companies. So Marvel doesn't really have a financial upside to this practice (at least in a short-sighted view).

          Still too bad.

          That's the bad thing about it. Marvel is losing no money from this. No one is going to avoid the Spiderman movie because they have a spiderman skin in The Sims.

          It is there right, granted. I an not saying they do not have the right to do this. I just wish they wouldn't.
          • It is there right, granted. I an not saying they do not have the right to do this. I just wish they wouldn't.

            Unfortunately, it's not just their right, it's required of them if they wish to hold the trademarks. I don't believe the other portions they mentioned require them to stop people from doing so, but with trademarks you will lose them if you allow people to continue to use them. Once they lose the trademarks, they stand to lose a great deal of potential earnings, because there'd be no stopping everyo

            • Re:Trademarks (Score:4, Interesting)

              by notque ( 636838 ) on Wednesday June 18, 2003 @02:55PM (#6236357) Homepage Journal
              Unfortunately, it's not just their right, it's required of them if they wish to hold the trademarks. I don't believe the other portions they mentioned require them to stop people from doing so, but with trademarks you will lose them if you allow people to continue to use them. Once they lose the trademarks, they stand to lose a great deal of potential earnings, because there'd be no stopping everyone from making SpiderMan, X-Men, The Hulk, etc movies without paying Marvel for the use of those names and characters.

              How much effort is needed to hold a trademark? There are skins for every other trademarked television show, comic, movie created. Does that mean that at some point (who judges how long) I can create a Buffy the Vampire slayer movie because they have not told "skinzforus.com" to cease releasing skins.

              I'm not trying to be combative. It's just that this has been happening for awhile, and I honestly don't beileve that I could wait 3 years (if this continued), released a Spiderman movie, and used some Sims skins as justification for it.
              • How much effort is needed to hold a trademark?

                It really depends on the judge, but overall it's on you to show that the trademark has become public domain through use of that trademark by others. Usually it helps if the trademark holder was actually aware of that use, as well, but that's pretty hard to show.

                Believe me, I know this has been happening for a while, I downloaded many skins for Quake and Q2 that used other characters as their basis that more than likely were not developed by the original crea
                • Seems to me it would be pretty hard to lose SpiderMan as a trademark. In fact, I'm not sure what trade or service it is the mark of. Usually trademarks are the name of a company or a brand. How is a character's name a brand? That seems like an end-run around the theoretical expiration of copyright to me. It's already copyright infringement to make derivative works, so how this is even a trademark issue, I just don't get.

                  And that's why I don't buy this defense of their act on the grounds that they had to
              • The amount of effort required is up to the whims of some future judge. IANAL, but I don't think there's any well codified ruling or statute that constitutes what is 'enough'. This is just a case that Marvel's attorney's are being a bit more cautious against the nebulous unknown than DC, Image, etc.
                • The purpose of a trademark is that it distinguishes a specific source of some goods.

                  Thus, if I see a can of soda with the word 'Coca-Cola' printed on it, then that allows me to know that it _is_ Coca-Cola, and that it comes from, and was made by, the Coca-Cola people. It needn't indicate who the manufacturer is, just that it's coming from the same overall source as other things so marked.

                  If everyone was making Coca-Cola, and using that name, it would not be possible to know that it all came from the same
                  • You see, if I take Coca-Cola and pour it from a can into a glass and sell it this way, it is still "Coca-Cola". If I mix it with vodka, I have the right to call it "Coca-Cola with vodka". Because it is.

                    In case with Spiderman skins, they do not represent a stolen character, they actually represent Spiderman from Marvel universe (films, comics, games, etc.). So the problem is not that Spiderman becomes generic term, no. The problem (in Marvel's opinion) is that people apparently can get the right to use Spid
                    • they actually represent Spiderman

                      Yeah, but the purpose of trademarks is not to identify a product so much as it is to indicate that different instances of the same product share a common source.

                      If Marvel makes Spider-Man comics, and I make Spider-Man comics, then the Spider-Man trademark no longer indicates that all Spider-Man products originate from a particular source.

                      Even though it's perfectly clear in both instances that it IS Spider-Man.

                      You've pointed out the nominative use of a mark, that is usin
                • I wonder if there any actual examples of companies loosing their trademarks because they have entered public domain (but not the examples when the word entered the language as a generic term - that's different).
            • I think this is a perfect example of where trademark/copyright law abjectly fails.

          • Marvel is losing no money from this. No one is going to avoid the Spiderman movie because they have a spiderman skin in The Sims.

            Maybe not in The Sims, but a game like Freedom Force is another matter - it's a superhero game. Marvel licenses their properties out to other people to make superhero games, like the two Spiderman comic book games, the Spider-Man movie game, the upcoming Spider-Man 2 movie game, and of course the multiplatform beast which is The Hulk.

            Plus Marvel may have to work harder since t

            • Maybe not in The Sims, but a game like Freedom Force is another matter - it's a superhero game. Marvel licenses their properties out to other people to make superhero games, like the two Spiderman comic book games, the Spider-Man movie game, the upcoming Spider-Man 2 movie game, and of course the multiplatform beast which is The Hulk.

              Was unaware of that, I concede my point. (I still find their demands incredible.)

              Plus Marvel may have to work harder since these properties are so old - it might be easier

    • Re:Trademarks (Score:3, Insightful)

      by uncoveror ( 570620 )
      This could backfire on Marvel. It is like prosecuting fans who write fanfic for copyright violation. While they are creating derivative works without authorization, and copyright law bans this, they are usually doing no harm, and smacking them down will create a lot of enemies for the copyright holder. Enemies aren't customers.

    • Re:Trademarks (Score:5, Insightful)

      by Dachannien ( 617929 ) on Wednesday June 18, 2003 @03:48PM (#6236799)
      Unfortunately, due to the way Trademarks work, if you don't protect your Trademark, it will enter the public domain.

      They could always license the trademark to the skins site for a token fee (say, $1) under certain restrictions (such as licensing downloaders only to use the skins for personal use, for the site not to sell access to the skins, etc.).

      • They could always license the trademark to the skins site for a token fee (say, $1) under certain restrictions (such as licensing downloaders only to use the skins for personal use, for the site not to sell access to the skins, etc.).

        While this is certainly true, I think it's just slightly possible that this would undercut the price they're charging a game company to use the names and likenesses in a game that's currently being produced. This is most likely why they're just now going after people for skin
    • if unprotected would allow others to actually make Spiderman comics without any payment This is simply not true, not enforcing a trademark or copyright in no way lessens the rights possessed by the holder. If that were true, then a copyright holder would bear the personal responsibility to find all violations in existence and an infringment that is not high-profile (as opposed to skins for the current best-selling game of all time, for example) could go unnoticed by the holder indefinitly. Does that sound

  • The difference between then and now is... (Score:3, Insightful)

    by Dolemite_the_Wiz ( 618862 ) on Wednesday June 18, 2003 @02:27PM (#6236079) Journal
    ...there have been a few Marvel Comics brought to the Silver Screen and have made them hundreds of millions of dollars.

    Mo' Money, mo' Money, Mo' Money!

    That and the cruddy Marvel TV shows from the 70's and 80's were REALLY bad. Remember the live action 'Spider-Man' TV series? No way they could have pushed their clout around with those TV series.

    Dolemite
    ____________________________
    • Eli still works for Marvel...will wonders never cease?

      I'm getting very tired of people throwing around IP as a reason to sue someone...the only people making money in these hard economic times are Realtors and Lawyers!

      If they are suing people for making a "likeness" of their characters, I know a few Marvel artists that should be sued for making a butchery of the characters in some of the comics!

  • Wow.... (Score:3, Interesting)

    by notque ( 636838 ) on Wednesday June 18, 2003 @02:28PM (#6236084) Homepage Journal
    I love the end

    Very truly yours,

    As if truly yours wasn't good enough. Very truly yours, we will sue you.

    My question is, it states they HAVE to give the names of all downloaders of Marvel IP.

    How exactly is that possible?
  • I remember back in college running around as the sheep with a rocket tied on its back. Those were the days. Life was simpler running around as a sheep blowing up folks into gibs.

  • Skins... (Score:3, Insightful)

    by Alexius ( 148791 ) <alexius&nauticom,net> on Wednesday June 18, 2003 @02:30PM (#6236112) Homepage
    It doesn't matter to Marvel if they advertise, if they don't protect the IP at least in name only, they can't complain if someone sells a 'Marvel Super Heroes Skins CD' along side their latest video game.

    Personally, I'd guess a MMPORG based in the Marvelverse.
    • It doesn't matter to Marvel if they advertise, if they don't protect the IP at least in name only, they can't complain if someone sells a 'Marvel Super Heroes Skins CD' along side their latest video game.

      (This is using a huge if) So if SCO has IP that was in Linux for many years, and never once said a word about it, they couldn't sue because they didn't protect their ip, and even went so far as to sell the very products with their ip that was used without their permission.

      Oh... Okay.
      • Actually, apples and oranges here.

        One is trademark, the other is copyright/patent.

        Trademark you have to protect to retain it and I do not believe it expires.

        Copyright/patent are granted and are valid until it expires.
        • Actually, apples and oranges here.

          One is trademark, the other is copyright/patent.

          Trademark you have to protect to retain it and I do not believe it expires.

          Copyright/patent are granted and are valid until it expires.

          You may be right, now that I think about it, and if so, excuse me.

          But Intellectual Property was definately part of SCO's complaint, and Intellectual Property was the basis of this complaint.

          I connected the two as the same, but I may be wrong.
        • You have to protect copyright also, because it belongs to you. The government isn't going to sue people on your behalf. Everything you ever make is copyrighted, so it would be impossible for someone else to decide to sue or not. If you make a drawing and I use it to make a wallpaper, nobody cares unless you care. But even if you went out and got the art copyrighted at a [postal office?]... then you still have to try and protect it.

          hmm not a very well written paragraph ;)
          • The point is that if you do not actively defend a trademark you can lose it. Once you lose it you are unable to reclaim the trademark.

            However, with copyright/patents you are able to ignore the fact until you want to sue. Remember the unisys/gif patent?

        • You're basically right, but be aware of some exceptions.

          There are statutes of limitations: if you don't sue within a certain period of time, you lose your chance to do so. The courts are not generally going to tolerate people bringing lawsuits decades after the fact. Things like murder don't have statutes of limitations -- copyright infringement is only a few years (possibly with the clock starting after the copyright holder did, or should have discovered it).

          There is estoppel: if you lead someone to beli
    • The big difference here is that in one case, no money is made, and in the other, you sell and make money from that cd.

      I'd call that a mayor difference.

  • Matt Murdock to the rescue? (Score:3, Funny)

    by AtariAmarok ( 451306 ) on Wednesday June 18, 2003 @02:31PM (#6236123)
    When it comes to the legal department, Marvel is more Rupert Murdoch than Matt Murdock.
  • WTF does this mean? Vomiting up people you've entered into an alliance with?

    Bizarre what lawyers think about people today... backstabbing cannibals?

  • All skins removed ? (Score:3, Insightful)

    by Grand ( 152636 ) on Wednesday June 18, 2003 @02:37PM (#6236192)
    I clicked throught the different sections of the website, and it looks like ALL the skins are taken off. I could understand Marvel if the entire site was of Marvel skins and nothing else. If he made any money off of advertising, he is soley making it from Marvels stuff.
    • They still have a handful of skins on the site. Most of them are DC comics characters. Apparently either DC comics doesn't care, or Marvel didn't bother notifying DC (in other words, DC doesn't know).

      While I think it's often fun to play games with super-hero skins, it's somewhat sad that the whole site is made up primarily of derivative works, rather than unique skins.

  • When was 'fair use' removed from the law again? (Score:5, Insightful)

    by J_DarkElf ( 602111 ) on Wednesday June 18, 2003 @02:37PM (#6236194) Journal
    I thought skins were like fan art, in that they fell under 'fair use', as long as no attempt was made to make profit from them. At least, those made completely by the fans themselves -- screencaps from movies or games, or scans from the comics might be different.

    Very depressing to see that current 'copyright' law is only being used to prevent the fans from trying to live their fantasies.
    • I think the problem here is that Marvel would like to license its characters and stories to video game developers and sees these unlicensed Marvel-themed games as competition.

      Not that I agree with Marvel's actions. I certainly found the tone of their letter disturbing. I certainly won't buy their stuff now (not that I bought a lot of it before, but now I won't even consider it).

    • Re:When was 'fair use' removed from the law again? (Score:1, Informative)

      by Anonymous Coward
      I wouldn't call this fair use (of copyrights) at all. [Trademarks are another issue entirely] Section 107 of US Code states:

      ------------

      Â107. Limitations on exclusive rights: Fair use

      Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scho

    • Re:When was 'fair use' removed from the law again? (Score:5, Interesting)

      by Ioldanach ( 88584 ) on Wednesday June 18, 2003 @03:20PM (#6236581)
      I thought skins were like fan art, in that they fell under 'fair use', as long as no attempt was made to make profit from them. At least, those made completely by the fans themselves -- screencaps from movies or games, or scans from the comics might be different.

      Very depressing to see that current 'copyright' law is only being used to prevent the fans from trying to live their fantasies.

      Fan art is not fair use, and has been the subject of substantial lawsuits, both due to copyright and trademark infringement.

      This is both a copyright issue and trademark issue. Copyright is where you create an image from another image, where the derivative work is recognisably related to the original. This applies mainly when you make a piece of art that looks like another piece of art. Trademark is the larger issue in this case, since trademark involves using something in a trademarked way. I.e., using the likeness of a Marvel character can only be done with the permission of Marvel.

      Thus, creating unique fan art of Marvel's characters is a trademark violation and could result in a lawsuit of, $10,000 or more. Minor cases of fans drawing their favorites and posting them on their website isn't something a company like marvel will go after. When the infringement becomes large, however, they have to shut it down whether they want to or not, lest the infringer push the trademark into the public domain. In many cases they really don't want to do this, but the legal environment requires them to. Anecdotally, I recall a story where the J.K. Rowling, the author of the Harry Potter stories, was asked by a teacher if their class could put on a H.P. play. The request had somehow circumvented normal channels and thus her lawyers, and she said sure. When the lawyers heard about it, permission was immediately revoked, since it opened up a legal can of worms regarding copyright and trademark dilution.

      Again, this isn't new, and is entirely reasonable. This is what prevents someone else from drawing a new Mickey Mouse cartoon where mickey kills Donald for sleeping with Minnie. Disney has continuously used Mickey, Donald, and Minnie in a trademarked environment for many years, so any attempt to use those trademarked characters will result in serious penalties.

      I should note that confusion between copyright and trademark law is also what FUD from Disney & other media companies is designed to encourage. Disney & others want the copyright term extended not because they're afraid someone will make their own Mickey cartoon, but because they won't be able to release their 150th anniversary disk of Mickey's first cartoon someday since everyone who wants it will have bought a decent copy of it when the copyright ran out. New cartoons using their characters are already protected by trademark law, and will be so long as Disney continues to enforce the mark. That's a separate rant I give for other topics, though.

      A quick google search turned up this interesting primer [dreslough.com] on the subject.

      • 150 years for a copyrighted work is ridiculus. That would be a whole generation of people whom you've ingrained the image of Mickey Mouse into. You don't own him anymore.
      • New cartoons using their characters are already protected by trademark law, and will be so long as Disney continues to enforce the mark.

        That's patently absurd.

        To claim that would be to claim that trademarks are capable of establishing a de facto copyright that might never expire with regards to derivative works based upon earlier, public domain works.

        It would be grossly unconstitutional.

        When copyrights expire so does the exclusive right of the author to create works derivative of earlier works. If "Ste

        • To claim that would be to claim that trademarks are capable of establishing a de facto copyright that might never expire with regards to derivative works based upon earlier, public domain works.

          You're misinterpreting my statement, though I'll consent that in one area my statement overreached. It would be legal to display "Steamboat Willie" in any context, and to use the artwork in another form. It would not, however, be legal to create a new work with the character Mickey Mouse from the cartoon, since M

          • You're misinterpreting my statement, though I'll consent that in one area my statement overreached. It would be legal to display "Steamboat Willie" in any context, and to use the artwork in another form. It would not, however, be legal to create a new work with the character Mickey Mouse from the cartoon, since Mickey Mouse is a trademark continuously in use and thus protected.

            No, that's exactly how I interpreted your statement. I just think you're absolutely wrong.

            Such a trademark would in effect create
        • Wow...this shows how far Disney has perverted the law; Cinderella is already public domain! It's an old fairy tale! Just like 'Beauty and the Beast' is...you can draw, paint and sell anything you like about those characters :)

          Anyway, I think the whole fan art thing goes to show how broken trademark/copyright law is. Something really ought to be done about it.

  • Make your own skins, then... (Score:3, Interesting)

    by Craig Maloney ( 1104 ) * on Wednesday June 18, 2003 @02:38PM (#6236195) Homepage
    Instead of giving these companies free advertising and publicity, make your own fiction, and make your own characters. Who knows? Someday you might be able to tell companies where they can stick it.

    I'm tired of people getting punished for showing loyalty to a particular brand or franchise, so until they wake up and realize they're hurting themselves, I'm not going to spend any energy promoting hostile companies' brand or franchise. Let them do the work.

    • hear hear (Score:4, Funny)

      by DrSkwid ( 118965 ) on Wednesday June 18, 2003 @03:31PM (#6236661) Journal
      You want to have a personalised skin so you pick a Marvel Comic Character, that's so lame!

      I think Josh said it best [somethingawful.com] [about making fps mods] :
      -----------------
      Step Two: Pick a Hot Property

      You have to base your mod on something, and nothing works better than somebody else's copyrighted property. Heck, George Lucas isn't going to mind if you steal his beloved characters for personal use. Neither is old Tolkien, who is probably burning in hell for writing such blasphemous nonsense. Here are a couple suggestions for possible mod material:

      Star Wars
      X-Men
      Harry Potter
      The Matrix
      Lord of the Rings
      Dragonball Z
      Denver the Last Dinosaur
      -----------------

      My money is also proximal to my mouth [proweb.co.uk]

      • Denver the Last Dinosaur

        Wow, I hadn't thought of that show in many, many years. I read that and immediately the theme music began playing in my head. I couldn't tell you at all what the main character even looked at, but I can sing "Denver, the Last Dinosaur... he's your friend and a whole lot more!" At least, that's how I remember it.

        • because I have absolutely no idea who Denver the Dinosaur is but I'm glad it gave you a nostalgic buzz.
          • believe me, I'm with him in having that song pop in my head but having no clue what Denver looked like or even what the show was about. Unfortunately, there's nothing good about that damned song going off, especially since it's most likely just that one line going through over and over again.
  • Dictionary definition of flay:

    "To strip off the skin or outer covering of."

    This site's been skinned for sure.
  • IMNAL, but I have taken classes on IP, and this is a clear cut case of Marvel not taking the opportunity to protect their IP ten years ago when skinning started. Even if they have just started as little as 5 years ago, they would have had an argument, but with the prevelance of skinning now, I doubt they would win a case against anybody for skinning.

    They are just trying to use FUD to get essentially broke website operators to stop "infringing" on their property.

    Phathead

    • Re:Too Late (Score:3, Insightful)

      by J_DarkElf ( 602111 )
      The problem with the current law is that you cannot win from a company like Marvel -- they can afford the legal costs, but a normal human being cannot. So it does not matter that everyone knows they do not have an argument: you can't win anyway.

      Cases like this are a win-win situation for the companies: in almost all cases they scare the poor person they are scre^H^H^H^Hsueing off and the case never has to go to court, and in those few cases where the defendant thinks he stands a chance in court, they still

  • Pushing to the outler limits (Score:3, Interesting)

    by mugnyte ( 203225 ) * on Wednesday June 18, 2003 @02:55PM (#6236362) Journal
    Marvel is within their rights to make this demand. By organizing skins and redistributing them, the site is hedging into trademark violations by skipping permissions.

    That said, these skins will now become yet more fodder for other channels. So, in essence, they are pushing for more popularity of things like P2P. Information continues to want to be free. Personal trading of things like this might be similar to any other fair-use occurence, though. Think of if you draw a cool Spidey, make stickers for your buddies and slap them on your schoolbags. Isn't that fair-use? Replace sticker/skin, schoolbag/avatar. Whats the difference?

    Anyone know what fair-use says about anonymous trading?

    mug
  • Universal Vivendi has snapped up the rights to produce a game based on the Marvel universe.

    Universal signs 10 year deal with Marvel [icv2.com]
  • good for them! it gives them much more publicity seeing as marvel is the current universe to beat what with all these movies and all.

    as to why marvel did this, i think they are trying to shut out anything in competition with their own marvel games, which are less than stellar.

  • hey kids (Score:3, Interesting)

    by Strange Ranger ( 454494 ) on Wednesday June 18, 2003 @04:17PM (#6237041)
    Marvel was in or near bankruptcy all through the 90's, until they restructured their entire business model around their intellectual property, rather than around selling paper comic books. The stock has gone from a few dollars to over 20 bucks in a very short time, in a bear market no less, due to their success. It would be very silly of them indeed not to protect their ONLY valuable asset.

    The movies are great fun, the games are fun, and they're slated to do a lot more of both. They have to aggressively protect their IP, copyrights, and trademarks. The lawyers make them. They are not the RIAA or even Disney, they're just doing what it takes to stay in business, and their business is licensing fees. So give them a break and be glad they're no longer bankrupt, and that they have achieved the clout necessary to get movies made that are worlds better than say.. Superman III.
  • Perhaps all Marvel related skins could have "belongs to marvel" tatooed on their asses?
  • If people were skinning Freedom Force with Marvel characters, you've probably got your answer to "Why" right there: Marvel is planning on releasing it's own Freedom Force-type video game.

  • OMFG! The Lawyers are totally bluffing them! (Score:5, Interesting)

    by Dolemite_the_Wiz ( 618862 ) on Wednesday June 18, 2003 @04:27PM (#6237135) Journal
    Marvel's lawyers don't have a leg to stand on!!!

    I took a look at the full context of the letter from Marvel's lawyers [skindex.net] to the admin of the Skin site. Just for kicks, I looked up the full context of the '1976 Copyright Law' and the Federal 'Lanham Act'.

    What I found was that Marvel's lawyers are totally bluffing and don't have a case.

    There are specific sections of both of these laws that totally protect 'The Skindex' and prevent Marvel's lawyers from ever filing a lawsuit.

    Here's the info that I found:

    1976 Copyright Act [copyright.gov]

    Most of the Act focuses specificaly on or implies works of Music, Movies, Plays, Computer Programs, or even Boat plans. Nowhere in this Act is there any sort of law governing the Skins.

    Or so I though.

    Buried in Section 109 Sub-Section (b)(1)(B)(i and ii) of this code (Page 22 of the PDF near the bottom) are two exceptions that place Limitations on the 'Exclusive Rights' Marvel is alleging Mr. Benson is infringing on:

    (B) This subsection does not apply toâ"

    (i) a computer program which is embodied in a machine or product and which cannot be copied during the ordinary operation or use of the machine or product; or

    (ii) a computer program embodied in or used in conjunction with a limited purpose computer that is designed for playing video games and may be designed for other purposes.

    Other than that there is not a single word in this Act that Marvel can use against this Skin site.

    Lanham Act [bitlaw.com]

    This is a REALLY easy one. Since 'The Skindex' is a 'not for profit' site they are protected from a lawsuit under 15 U.S.C. Â1125 of The Lanham Act. Section (C)(4)(A-C) States (Specifically C-4-B):

    (4) The following shall not be actionable under this section:

    (A) Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark.

    (B) Noncommercial use of a mark.

    (C) All forms of news reporting and news commentary.

    These guys need to hire a lawyer, fast and tell Marvel where to go!

    Dolemite
    ___________________________________

    • Someone should mod the parent comment up. This seems extremely insightful to me. IANAL and also didn't read the linked documents in their entirety but the comments seem to make sense.

      Unfortunately this is extremely common in the litigious society we now live in. Get a high-powered lawyer and have that lawyer threaten a bunch of action based on a bunch of "lawyerspeak" that may or MAY NOT apply to the current situation, but sounds really scary to the average person - enough so that even if the threats

    • Skins are a form of art, to the degree that they're graphics (see 17 USC 102(a)(5)) and are literary works, to the degree that they're software or computer data that's copyrightable (see 17 USC 102(a)(1) and the legislative history. And anyway, 17 USC 102 is pretty open-ended in offering protection to any "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the
      • Skins may be a form of art in some restpects but the way Art is defined on with this Act does not imply skins. Skins are a 'grey area' that is not explicitly defined, Art Infringement is worded like you're going to make and sell knock off's of a Rembrant. Because of the lack of solid wording for this case the law won't hold water.

        Did you notice how the sections were created for certain interests? The RIAA, MPAA, Cable TV Companies, Software Companies, etc.

        In additon, the laws were specifically created
        • Skins may be a form of art in some restpects but the way Art is defined on with this Act does not imply skins. Skins are a 'grey area' that is not explicitly defined, Art Infringement is worded like you're going to make and sell knock off's of a Rembrant.

          Oh? Well, let's see. In the actual LAW, 17 USC 102, the only thing really discussed is this:

          Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later deve

          • You have to read the Act documentation as a whole.

            Only then will you notice that it's nothing but a scotch taped mess that focuses on and implies the different 'interests' I mention above.

            Most of this Act focuses on laws, penalties, and processes for duplicating an exact copy of an original work. Music File sharing with Kaaza is an example of such a focus.

            Furthermore, notice that each of the Appended laws (at the end of the main contents) into the act focus on Major issues of a given time and the laws
            • Sorry it's late. Didn't proof read this too well:

              This site provided a resource for On-Line Gamers to put the proverbial cape on for free. How, in the weak wording of both the Acts/Laws, is the Skin site Violating Copyright or Trademark infringement laws?

              Dolemite
              _________________
              • You have to read the Act documentation as a whole.

                No, not really. But I do. I love the general concept of copyright law, and I read through it for fun. With luck I should be practicing IP law in the not too distant future, next Sunday A.D..

                Most of this Act focuses on laws, penalties, and processes for duplicating an exact copy of an original work.

                No.

                The law treats all of the 17 USC 106 rights more or less equally. There are exceptions to everything, but overall it is just as bad to illegally make a m
                • There are several different sources of law. Statutes, as you've figured out, are passed by Congress. Caselaw, and common law, OTOH, are created by the courts -- either as the definitive interpretations of ambigious statutes, or as filler where there has been no legislative activity.

                  Thus, although it's not really mentioned much (though it is recognized) in the stautes, there are doctrines of contributory and vicarious copyright infringement, whereby one person's direct infringement will cause other people t
                  • Napster/Kaaza/Morpheous situations and Skin creators are two completely different issues here.

                    Not particularly. There's a difference in that the skin creators are direct infringers, and the P2P services may be (or may not be, if they were careful about how they did things) contributory or vicarious infringers. But their problems were founded on their users being direct infringers. And the skin site is, if not a direct infringer, at least a contributory or vicarious infringer, I'm pretty sure.

                    They may hav
      • I don't know the legal definition of commercial in regard to the Lanham Act, but skins are a commercial product. If Marvel decided to sell their own skins, the skins given away on Skindex would hurt Marvel economically (who would buy Marvel's skins when they can get good ones for free? on Skindex?).

        If publishing company XYZ wanted to make their own Wolverine comic book, they couldn't legally do so, even if they gave the comic away.

  • Move to FREENET, people! (Score:3, Insightful)

    by Myself ( 57572 ) on Wednesday June 18, 2003 @05:50PM (#6237905) Journal
    I've said it before and I'll say it again. Until intellectual "property" law gets reformed, all this activity needs to take place on Freenet [freenetproject.org].
  • ...only Supervillains will have skins.

  • Ignoring legalities, here are some Qs for Marvel (Score:3, Insightful)

    by Kris_J ( 10111 ) on Wednesday June 18, 2003 @07:47PM (#6238675) Homepage Journal
    Someone who really enjoys your work draws one of your characters on a scrap of paper, as bit of fun. Do you stop them?

    Someone who really enjoys your work draws one of your characters on a computer, in learning how to use a graphics program. Do you stop them?

    Someone who really enjoys your work models one of your characters on a computer, for a school project. Do you stop them?

    Someone who really enjoys your work creates a model of one of your characters on a computer so they can play as that character in their favourite game. Do you stop them?

    The person above finds that their friends can't see them as the character they love so much unless everyone has a local copy on their PC. Do you stop them?

    Their friends love the character and want to keep their local copies. Do you stop them?

    The fan that first created the model of their favourite character, bouyed by their friends' responses wishes to share the model with the world. You have no official product like this. Do you stop them?

    A web site offers a place for people to share their labours of love. Do you stop them?

    The web site above is so popular that their ISP starts billing them for traffic. They have no option but to start charging or running advertising. Do you stop them?

    Where exactly, Marvel, do you start alienating your best fans?

  • agreed to cease and desist from any and all other acts of unfair competition with Marvel

    Er, yeah, right.
    I forgot that Marvel is a Sims skin company, not a gorram comic book company.

    All those years, forced to publish comic books, waiting for the Sims to finally start to exist for their primary buisness objective to be completed. Must have been rough.
  • Hello? Marvel? Everyone else? People are skinning your characters because they're fans.

    From the letter:

    "..Given the blatant bad faith evidenced by skindex.net, Marvel hereby demands your written confirmation that skindex.net has (1) removed all Marvel intellectual property and references to Marvel intellectual property from its website or any other site (or other location); (2) abandoned all unauthorized copying and distribution of the the Marvel intellectual property and (3) agreed to cease and desist fr
  • Another likely reason for this? The success of the movies has opened Marvel characters for use in video games. The Xmen gamnes, the new hulk game, the Spiderman game. And also, late last year, Marvel licsensed all it's characters for a MMORPG. See link: http://www.ananova.com/news/story/sm_674405.html?m enu= [ananova.com]

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