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Marvel / NCSoft Litigation Update 65

Posted by Zonk from the down-with-imagination! dept.
TerraNova has linkage regarding an update to the Marvel vs. NCsoft case. The litigation, contesting the use of Marvel character facsimilies in NCSoft's City of Heroes, has been taken to a new level. NCSoft has retained the services of Cooley Godward LLP and filed a motion to dismiss the case. A lot of good rhetoric in the brief, including: "[City of Heroes] allows young and old to exercise their imaginations to create super-powered beings and send them off to interact with the creations of other individuals in a virtual world called Paragon City. If it should be banned, then so should the #2 pencil, the Lego block, modeling clay, and anything else that allows one to give form to ideas..."
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Marvel / NCSoft Litigation Update More

Marvel / NCSoft Litigation Update

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  • Marvel's just mad... (Score:2, Insightful)

    by llevity ( 776014 )
    because they want to put out a MMORPG now too.
    • Marvel have standalone RPG now in "X-men legends", I'll admit it's pretty damn good.

      Anyways, an imaginary character that looks identical to Wolverine but have an extra claw, is that really Wolverine? Or Peter Parker with a mustache?!

      • Marvel have standalone RPG now in "X-men legends", I'll admit it's pretty damn good.
        Legends is pretty good but is far too easy, with no way to increase the difficulty.... I beat the entire game in 2 days :(
      • Just a minor point, but City of Heroes characters with claws have three claws, like Wolverine.

        Here [creyindustries.com] are a few pictures of one with her claws out.

  • Uh Oh (Score:3, Funny)

    by OneIsNotPrime ( 609963 ) on Wednesday January 19, 2005 @05:46PM (#11413645)
    If it should be banned, then so should the #2 pencil, the Lego block, modeling clay, and anything else that allows one to give form to ideas...

    Uh oh... In today's legal system, I hope that is seen as sarcasm.

    • Well I hope it's seen as an insigthful wake up call, a much needed slap in the face of all those who think that they can just keep twisting and bending the legal system to maintain their monopoly. Go NCSoft.

  • See also: Car games & licensing (Score:4, Interesting)

    by killbill! ( 154539 ) on Wednesday January 19, 2005 @06:13PM (#11413869) Homepage
    Please someone tell me why Hollywood is allowed to put a Ferrari into a movie (even though the driver is the villain), but you can't put a Ferrari into a video game if you're not EA.

    I'm frustrated that we can't have real car names in GTA, that we can't get Porsches or Ferraris in Gran Turismo 4, that you could not drive Ferraris or Mercedeses in pursuit mode in earlier versions of Need for Speed because "it'd hurt the company's image to run away from cops", or that game makers are not allowed to implement car damage because of a handful picky car manufacturers.
    This is so ridiculous that you have to drive a Ruf (a Porsche tuner) instead of a genuine Porsche in GT3/4 because EA holds exclusive rights on Porsche cars in video games (but is not using it, as ricers are all the rage at the moment).

    Simulations are supposed to, duh, simulate reality. So how an Earth what is possible on a video DVD what is not possible on game DVD? Can you imagine Fox barring Dreamworks from using BMW's because Fox owns exclusive rights to the BMW license? That's utter nonsense.

    By the way, the Porsche/Ferrari policy also makes little sense as far as the bottom line is concerned. Games are free advertising. If your game is not in a game, you're losing sales to more lenient competitors.
    Exhibit A: Gran Turismo made a star of the Mitsubishi Lancer Evolution. Before GT3's success, nobody had heard of this car in the US. But so many asked DaimlerChrysler for EVOs that they eventually decided to import it.

    Disclaimer: I'm working at one of the abovementioned companies, and I'm ashamed they still don't get it. I for one hope NCSoft wins, and that game makers are allowed to put in whatever content they wish.

    • Re:See also: Car games & licensing (Score:5, Insightful)

      by MBraynard ( 653724 ) on Wednesday January 19, 2005 @06:24PM (#11413975) Journal
      Please someone tell me why Hollywood is allowed to put a Ferrari into a movie (even though the driver is the villain), but you can't put a Ferrari into a video game if you're not EA.

      Simple. Because you actually bought the Ferrari for the movie shot. But you are only using the trademarks of design and logos in the video game - and what you are driving in the video game is an artists re-creation of the car/logo.

      If you bought the Ferrari and a video game had full-motion video cutscenes of you driving around in it, it would be ok.

      • Not so actually. Most expensive cars in movies and TV, other than the ones that are destroyed or modified specifically for that feature, are rented. There are a few companies which allow you to basically rent a Ferrari for a day or week for a very expensive amount of money. A lot of that money though is a deposit that you get back when you return the car in perfect condition. But they don't rent to just anyone, so don't think about calling them to get a getaway car for a bank job.

      • Re:See also: Car games & licensing (Score:5, Insightful)

        by Alsee ( 515537 ) on Thursday January 20, 2005 @01:00AM (#11416977) Homepage
        Simple. Because you actually bought the Ferrari for the movie shot.

        Nonsense. Absolutely no basis in law.

        Movie studios do NOT own all of the cars they film. They have not rented many of them either. They can and they do film shoots on public streets. Including other people's cars.

        And furthermore I'd like to point out that legally architectural design is also "intellectual property". So based on your "common sense IP logic" anyone who makes a movie (or computer game) set in New York City is liable not only to the manufacturer of ever car that crosses the screen, but to the architect of every building as well.

        If you bought the Ferrari and a video game had full-motion video cutscenes

        I'd just like to point out that legally it makes no difference whether the image was captured on film, whether the car was run through a 3D digitizer, whether the scene is hand-drawn animation, or whether it was computer modeled from pure software code and text. Either they are all legal or they are all illegal.

        So you're saying it is "OK" to include the car in the video game, and your logic is that someone (1) has to buy that car (2) look at it and type in the data (3) and then may sell it back to the original owner at the exact same price.

        But to get back to the case at hand. Not only is City of Heroes not infringing anything, but there is absolutely no reason they should be deleting people's characters over this. If CoH put a spidermand character into the game, yes they would be infringing. That is not what they did. What they did was no different than someone setting up a halloween store (or even Walmart) and selling face makeup in every color and selling generic fabrics in every color and magic markers in every color that can be used on the fabrics. Would Walmart or even a specialty alloween store be infringing of some kid uses those materials to make a spiderman costume for himself? Is that store supposed to confiscate and destroy kid's costumes if they resemble a comic book character? Do kids owe licencing fees for their home-made costumes? Are they committing trademake infringment or tradmark "dilution" by running around trick-or-treating in public in those costumes?

        Christ! I don't mean to rant at the parent poster in particular, but in general I'm sick of the insane results of the "common sense" (and wrong) beliefs about what the law is and what the law should be when people think a "property" model applies. Trademarks and patents and copyrights can be good and useful things, but they are very different from property law.

        Having a Ferarri, or the Ferrari trademark, appear in a movie is not a trademark infringment. Not unless it is reasonably going to cause some confusion in the public that the movie is a Ferrari, or made by Ferrari.

        Some kid making his character look like Spiderman is neither a trademark infringment nor a copyright infringment.

        -
        • I'm just tossing this out there, but maybe it has to due with games featuring a prominate logo and the words Ferrari? You're then using their logo. Some games take the non licensed path, and build a car that looks like a Ferrari, but they call it some made up name. GTA, for example, does this. So using its likeness, or one very similar, seems to be okay, but you just can't call it a Ferrari. I really don't know, but it's an interesting point.
          • Ignore these clowns. They are trying to argue with me about what is essentially gravity and are picking at a really lame point. Namely because I said if you "buy" the car you can put it in your movie, and because most major TV/movies get the cars for free (unless they destroy them on-screen), my whole argument is invalid.

            You can use a real car, one you own or not, driving down the street, along with a building that is publicly visable - with no legal problem. You just can't re-create it in a video game. It'

    • Please someone tell me why Hollywood is allowed to put a Ferrari into a movie (even though the driver is the villain), but you can't put a Ferrari into a video game if you're not EA.

      Easy enough: COPYRIGHT CLEARANCE AND OTHER GENERAL RELEASES. There, you've been told.

      In my career as a software developer, and helping out a nonprofit group with filming of events, I've helped get clearance on various objects, songs, images, and sounds. It sounds weird, but in today's sue-everybody society, you have to g

    • I don't claim to know exactly how the law applies to this situation. I am inclined to think that the laws will have to be reinterpreted or updated because they weren't intended to cover these scenarios.

      However, I think I do understand the logic behind the ations of both parties. There is a difference between a Ferrari appearing in a movie about racing, and a Ferrari appearing as a driveable car in a racing game. Ferrari is a real product. And with the movie, you are watching a movie that says somethin

    • > Please someone tell me why Hollywood is allowed to put a Ferrari into a movie (even though the driver is the villain), but you can't put a Ferrari into a video game if you're not EA.
      >

      I'm not sure if this is true. I remember that some Time Square group sued the people doing Spiderman because they used a digital set that looked like Time Square (don't remember details).

      In short, I have a feeling this boils down to some silly "it's legal if you have the money" type of thing.

  • Marvel lawsuit and Stan Lee (Score:3, Informative)

    by Scott7477 ( 785439 ) on Wednesday January 19, 2005 @06:14PM (#11413880) Homepage Journal
    Speaking of lawsuits involving Marvel, here is some news from New York's Newsday:

    Comics legend Stan Lee wins judgment worth potential millions
    By LARRY McSHANE
    Associated Press Writer
    January 19, 2005, 5:08 PM EST
    NEW YORK -- Stan Lee, the legendary cartoon hero creator who gifted Spider-Man with the powerful "spidey-sense," is feeling a tingling of his own _ in his wallet.
    A Manhattan federal judge ruled that Lee is entitled to a potential multimillion-dollar payday from Marvel Enterprises off profits generated by the company's television and movie productions _ particularly the box-office smash "Spider-Man," which earned more than $800 million worldwide, and its hugely successful sequel.
    "It could be tens of millions of dollars," Howard Graff, attorney for Lee, said Wednesday. "That's no exaggeration."
    The Monday ruling from U.S. District Court Judge Robert W. Sweet found that Lee was entitled to a 10 percent share of the profits generated since November 1998 by Marvel productions involving the company's characters, including those created by the prolific cartoonist.
    "I am gratified by the judge's decision although, since I am deeply fond of Marvel and the people there, I sincerely regret that the situation had to come to this," Lee said in a statement.
    Sweet's decision didn't mention a dollar figure, although Graff was anticipating a windfall since the ruling also included DVD sales and certain merchandise. "The court essentially ruled in our favor virtually across the board," Graff said. "This is a sweeping victory for Mr. Lee."
    John Turitzin, general counsel for Marvel, promised an appeal. Turitzin noted that Sweet ruled Lee was not entitled to money from certain movie-based merchandise, and that the judge withheld judgment on money from joint-venture merchandise sales linked to the Spider-Man and Hulk movies.
    "We intend to appeal those matter on which we did not prevail, and to continue to contest vigorously the claims on which the court did not rule," Turitzin said in a statement. The remaining issues could go before a jury if the two sides can't reach a settlement.
    The lawsuit marks an acrimonious final chapter in the long and productive relationship between Marvel and Lee, who spent the last six decades working for the company. During a storied career, Lee created indelible Marvel fixtures such as the X-Men, the Incredible Hulk, Daredevil and The Fantastic Four.
    "Mr. Lee did not begin this lawsuit without a lot of thought and reservation," Graff said. "He was not pleased to do it. He was saddened by the fact that things came to the point where he had to actually start a lawsuit against Marvel."
    The 82-year-old Lee filed suit in November 2002, claiming an agreement he had signed four years earlier entitled him to 10 percent of Marvel's haul from its television and movie productions, as well as merchandising deals.
    He already earns a $1 million a year salary from Marvel as part of the agreement, but felt he was getting stiffed on additional income due him under the deal.
    The money involved was substantial, particularly involving the Spider-Man and Hulk movies. Spider-Man earned $114.8 million on its opening weekend, with Marvel eventually collecting more than $50 million in profits. "The Hulk" earned more than $125 million in the United States alone.
    Copyright © 2005, The Associated Press

    In my opinion, Stan deserves every nickel. His comic book series were the premier of the genre in their day. Spiderman was my all time favorite and I was very happy to see how well done the movies were.

  • Football (Score:3, Insightful)

    by b1t r0t ( 216468 ) on Wednesday January 19, 2005 @06:18PM (#11413905)
    Hopefully this will set some kind of a precedent for when EA sues Sega because random people are making and uploading full NFL rosters for their 2006 game, whatever it ends up being called.
  • Because it seems like NCSoft really tried to go their own route and not tread on anyone's IP. But because a few hundred kiddies aren't imaginative to go much past "yellow suit, claws, bad attitude" - Marvel gets in a huff.

    • Re:Just Sad (Score:4, Interesting)

      by snuf23 ( 182335 ) on Wednesday January 19, 2005 @06:39PM (#11414149)
      To be fair NCSoft's EULA states that copying characters that would infringe on other companies IP is not allowed and makes you subject to being banned.
      They do routinely do this - via forced renames and costume changes of characters.
      While I have seen a lot of copied characters - I have never seen them attain high level. All of the fake hulks and spider-men disappear pretty quickly.
      • What do you mean "to be fair"? There's no legitimate reason for such a policy in the first place. I went into a more detailed rant elsewhere, but is Walmart supposed to slap an EULA on all red shirts stating that the shirt will be confiscated and destroyed if it is used to make a Spiderman halloween costume? City of Heros is not infringing because they just made a generic game system. Individuals who make characters that resemble Marvel characters are no more infringing trademark or copyright than a kid who

    • Re:Just Sad (Score:3, Interesting)

      by hal2814 ( 725639 )
      The saddest part is that the poor, unimaginative youth can't even come up with a decent super hero to rip off. Of course, that's because Marvel has decided to kill off all non-X-Men/Spiderman comics long ago. How I miss the days of Nick Fury, Doctor Strange, Cloak and Dagger, Alpha Flight, GI Joe, Transformers, the NAM, etc.
  • In movies its mass-market advertising. They usually PAY to have their cars be the heroes set of wheels. It's rarely ever just because he needs a car, lets get a cheap one.

    In the cases where it's not, it's so the character on screen looks as badass as he can in an exotic sports car. Vin Diesel wouldn't look as cool in a big car chase driving a 97 Altima as he would driving a 2005 Porsche 911

    • And yet some of the best car chases in recent years were in The Bourne movies, where he drives a mini (not one of the new cool ones) and a crappy old Russian taxi.

      I think your comment is indicative of the thinking in most of Hollywood, which is one example of why the Bourne movies were a step above the typical hollywood action movie.

  • Incredibles (Score:2, Interesting)

    by Mr. Muse ( 464095 )
    It's good to see Marvel taking action against the real crime being perpetrated by hundreds of John Q's instead of taking on Disney/Pixar for a blatant ripoff of the Fantastic Four.

    • Re:Incredibles (Score:4, Insightful)

      by SuiteSisterMary ( 123932 ) <{slebrun} {at} {gmail.com}> on Thursday January 20, 2005 @10:08AM (#11419510) Journal

      Dad of the Fantastic Four: stretchy, and super-smart.
      Dad of the Incredibles: Very strong, very resistant to damage.

      Wife of the FF: Turns invisible, throws forcefields.
      Wife of TI: stretchy. Very competant, all around.

      Son of the FF: Oh, wait. No son. Sue does have a brother, though, who bursts into flames.
      Son of TI: Super fast.

      Daughter of FF: Oh, wait. No daughter. They do, however, have a big orange guy named The Thing who's just a friend of the family.
      Daughter of TI: Well, OK. Turns invisible, throws forcefields.

      Baby kid in FF: Oh, wait. None.
      Baby kid in TI: Protean, shapechanger.

      Yup, a blatant and inexcusable ripoff.

      • Stretchy, smart character:
        FF: Check
        Incredibles: Check

        Super-strong, tough character:
        FF: Check
        Incredibles: Check

        Invisible character:
        FF: Check
        Incredibles: Check

        Human torch character:
        FF: Check
        Incredibles: Negative

        Super speed character:
        FF: Negative
        Incredibles Check

        Switching around the age and sex of which characters have which powers does not constitute creativity. Luckily, the Incredibles had plenty of creativity in other places. I suspect that the Incredibles have the power

        • Actually, as somebody else pointed out in another Slashdot story, the charas have powers appropriate to their roles in the family, and their ages.

          Mr. Incredible tries to be the traditional father, he's the rock, the anchor, the big tough guy with the soft heart.

          Elastigirl has to be flexible to run a family and juggle everything she does in life, and she has to be competent at actually getting things done.

          Violet is the typical tweenager girl; hell, they flat-out refer to her as a shrinking violet at on

          • NPR did an interview with someone from Pixar (I cant remember who) and they talked about the creation of the characters and the exact things you mention were given. So anyone looking for it might be able to find referance to it on Morning Edition website (or was it All Things Considered) I cant remember clearly as my commute in the A.M. and P.M. just kinda turns into a suffusion of yellow after a certain point.

      • Let's rearrange those a little.

        Dad of the Fantastic Four: stretchy, and super-smart.
        Wife of TI: stretchy. Very competant, all around.

        Daughter of FF: Oh, wait. No daughter. They do, however, have a big orange guy named The Thing who's just a friend of the family. *And pretty strong, right?*
        Dad of the Incredibles: Very strong, very resistant to damage.

        Wife of the FF: Turns invisible, throws forcefields.
        Daughter of TI: Well, OK. Turns invisible, throws forcefields.

        Son of the FF: Oh, wait. No son. Su

  • This is all the more pathetic since Marvel is just a ripoff of DC. DC had been printing about a dozen series before Marvel appeared, clinging to DC's coat tails.

    CoH has been very diligent about revoking names that infringe on the EULA. I hope Marvel is fined or countersued for such blatent and baseless greed.

  • I think there is merit to the case (Score:3, Interesting)

    by PhilHibbs ( 4537 ) <snarks@gmail.com> on Thursday January 20, 2005 @06:05AM (#11417931) Journal
    A shop selling pencils is not profiting from the drawings that those pencils were used to create. NCSoft, however, is running a commercial service that includes those characters. I don't know what the CoH revenue model is, but even if it's free like Diablo II, that just means that it's funded through sales, and those sales will benefit if the players know that they can pit their pseudo-spidey versus someone else's pseudo-hulk. That probably counts as vicarious infringement.

    I think it's a little sad, but will stand up in law IMO.

  • NCSoft is to blame. (Score:2, Interesting)

    by Tepshen ( 851674 )
    NCSoft is partly to blame for this problem they are not out to protect anyones IP. I played CoH for afew months after it came out and ran a fairly large group on the protector server. Anyone whos played CoH knows theres not much for a group to do as a group. So I set up a website with what I called a wall of shame and sent some 50+ members out to take screenshots and report all the IP protected characters. We had ALOT of pictures and reported a ton of characters but none of them would get banned. We're talk
    • I set up a website with what I called a wall of shame and sent some 50+ members out to take screenshots and report all the IP protected characters.

      Now that you don't play anymore, do you go around your neighborhood taking pictures of kids wearing red blankets as capes and cut-out S's who pretend to be Superman? Damn kids. Who do they think they are, infringing on people's intellectual property. Get off the intellectual property brats!
    • Wow, running around taking pictures of people allegedly infringing upon IP..you must of been the most fun group on the server!!
      • As I mentioned there is very little for a large group of people to do in this game the largest team you can have is 8 people to a team so to keep a group of 50+ active in a game with little content outside of combat is a challenge(this was before badges and such). It's no different than a scavenger hunt. Those who found more people got more mod points on the group site. it was also funny to go through the gallery and see all the fanboy creations that NCSoft should have controlled a little better. lets face
        • Thank you for going out of your way to try to spoil other people's fun in a game by playing copywrite police. Please report yourself to the riaa for every mp3 you've ever downloaded promptly.

  • Evil EULA (Score:4, Insightful)

    by Rhys ( 96510 ) on Thursday January 20, 2005 @09:43AM (#11419260)
    I'd like to note that this case would already be over in CoH's favor if they didn't have the "we own everything you create on CoH" clause in their EULA. If they could tell Marvell, "Sorry buds we don't own any of that, we have the rights necessary to maintain the servers but those characters are the player's creation and owned by them." they'd probably never have gotten sued. (aka, we're just a carrier, just like all the baby bells & cable companies)

    So despite being a player of CoH, I have remakably limited simpathy for them and think that that excerpt from their defense is pretty shaky at best. If, like a pencil, they left me in ownership of my character, then I'd agree it's a good defense.
    • I'm not sure the defence is that shaky, the suit marvel launched was to the effect that a player "could" model an avatar after one of their heros, not that there were specific instances of unchecked copyright infringement.

      It would seem Marvel would need to identify cases in which NCsoft was aware of infringment and made no effort to correct it, which from the sounds of things they have made significant efforts already.
    • The "we owns your character" clause is standard in any online game that allows character creation, and there's a good reason for it.

      If you own full rights to your character, you could turn around and sue COH for publishing screenshots which have your guy somewhere in the background -- and in turn they could sue you for publishing a comic book where your character appears, because you tangle up their IP (elements of their costume creator, like specific logos and clothing designs) into your own.

      Basically, t

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