Marvel Clamps Down On Game Skins

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?

Comments

Trademarks

[Darthnice]

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.

Re:Trademarks

[Captain Splendid]

You wrote it? You have the rights to it for X years. Then it goes into the public domain.

It's more like:

You wrote it? You have the rights to it for X years. Then you use that money to pay off the politicians to change the value of X to a much bigger number.

Re:When was 'fair use' removed from the law again?

[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), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--

(1)
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2)
the nature of the copyrighted work;

(3)
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4)
the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

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

Using the images of copyrighted characters for "skins" doesn't fall under any of "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research".

Skindex is denying Marvel the opportunity to make a buck if they ever decide to make "skins" themselves (item 4). The character itself makes up a significant portion of the skin's value and usefulness (item 3), otherwise skindex could host skins of, say, original art or blank skins. As for point one, while skindex claims to "[never having] made a cent" from the skins, skindex does stand to gain non-monetary recognition from the use of Marvel's characters.

Fan art (without license or permission) is mostly just plain old theft.

Re:Excessive Slashdot videogame content

[simoniker]

It _is_ a little confusing right now, but here's what you can do to either receive the Slashdot Games section-only stories, which is most of them, on your front page, or remove them entirely.

If you want to see Slashdot Games (and other subpage posts) on your main page, go to the Homepage part of your Preferences - here, and tick the Collapse Sections tickbox.

If you're fed up with Slashdot Games appearing on your main page all the time, you must already have Collapse Sections ticked. In that case, tick the Exclude Stories From The Homepage - Sections - Games tickbox in the same menu screen.

Re:When was 'fair use' removed from the law again?

[cpt kangarooski]

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 "Steamboat Willy" ever does hit the public domain, I CAN make my own Mickey Mouse cartoons. Or books. Or art. And print it on t-shirts.

Most likely the trademark would be partially genercized, that is, partially lost, once the copyright expired. Disney could still attach their name to distinguish their OWN cartoons. I couldn't claim that my own Mickey Mouse works were their works, just as if I made a Cinderella cartoon I couldn't stick the Disney name on it, though both our films would share the 'Cinderella' title, story, characters, etc.

But trademarks on characters are comparatively new as these things go. The best case regarding this that I've seen so far has been, IIRC, New Line Cinemas v. Comedy III Productions, where copyright expiration trumped persisting trademarks.

But I'd be happy to continue discussing the issue with you. Personally, I hope to have the opportunity to test this out in the future with other fictional characters that are trademarked, yet who's original appearances are in the public domain.

Re:OMFG! The Lawyers are totally bluffing them!

[cpt kangarooski]

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 aid of a machine or device."

As for your inane reference to 17 USC 109, you clearly didn't read it or understand it.

The way that the law here is organized is, there is a title that embodies the entire subject of the law. Here, it's title 17 of the US Code, which is all of the copyright law. It's divided up into chapters (which no one really bothers with much), and those are divided into sections. Thus, here we discuss Title 17, Chapter 1, Section 109. (Again, no one hardly ever cares about chapters -- Bankruptcy is the most notable exception I can think of. When people talk about chapter 11 bankruptcy, etc. they mean the type of bankruptcy set out in chapter 11 of the bankruptcy title of the USC, which is Title 11, IIRC)

Anyway, the section you quoted from was 17 USC 109. It says, basically, that it is not an infringement of the exclusive right of the copyright holder to distribute the work (which was set out in 17 USC 106(3)) for other people to REdistribute a copy of a work that has already been sold off in the first instance by the copyright holder. Redistribution includes selling, renting, leasing, lending, etc.

That is, if you buy a book, you can legally sell that book used. Doesn't mean you can copy it, or sell copies you yourself made. Just that you can sell the copy you bought, that the artist somewhere upstream, sold.

There is an exception to that, in 17 USC 109(b) that computer software and sound recordings cannot be rented, leased, or lent, for commercial purposes, basically.

There is an exception to that exception however, in 17 USC 109(b)(1)(B) in that the above subsection 109(b) doesn't apply to computer software embodied in hardware, or programs for videogame consoles.

Notice the word SUBSECTION. The exception in 17 USC 109(b)(1)(B), which YOU QUOTED, only, ONLY, applies to 17 USC 109(b). It does NOT apply to even a single word anywhere else in any part of Title 17.

Plus it's amazingly irrelevant to this case, as the exclusive right of the copyright holder being asserted is NOT the right to distribute, but the right to create derivative works!

Regarding the issue on the Lanham Act, I'd just ask you this question: what do you think constitutes commercial use? Could it possibly be construed by the courts to include uses that have some commercial advantage (such as drawing users who will see advertising for which they get a kickback) even if it isn't blatantly commercial, with money trading hands?

Re:OMFG! The Lawyers are totally bluffing them!

[cpt kangarooski]

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 developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: ... (5) pictorial, graphic, and sculptural works ....

Didn't seem to say anything about 'fine art' there did it?

Congress made the following comment discussing this law in the legislative history:

This standard does not include requirements of novelty, ingenuity, or esthetic merit, and there is no intention to enlarge the standard of copyright protection to require them.

So now it sounds as though you can be Rembrandt, or you can be a three year old child playing with fingerpaints. As long as you didn't copy your work, and it's sufficiently creative, which is an amazingly low standard that's meant only to exclude preexisting facts, it's copyrightable.

Certainly I cannot imagine why a picture of Lethargic Lad would not be copyrightable as opposed to a Rembrandt. Certainly it would seem to leave Roy Lichtenstein in a perilous situation.

If that picture is copied directly, or if a new picture is based on the original (as surely happened here), then it is infringing. It doesn't matter if the particular form of the derivative is a comic book, a novel, a movie, or a skin for a video game. It is clearly based upon a copyrighted work. It is derivative of that work. It's infringing.

If you think skins are a grey area, it's because you can't see clearly. In fact, it's absolutely clear.

Commercial use is that which is regulated by Congress/Law. Skin trading is anything but that it's just plain and simple Hobby. Last time I checked, Hobbies aren't regulated.

Ok. You say you checked. That is, you say you actually LOOKED AT THE LAW. Then you will have no problem whatsoever in showing me where noncommercial copyright infringement -- perhaps in the form of a hobby -- is made allowable?

Fair use MIGHT cut it -- but it just as easily might not. And if you claim Fair Use, you'll have to actually run through the entire analysis just like a court would, since a mere allegation of fairness is worthless. But you've just indicated that you can back up your statements. Now I'm calling on you to do it.

But I'll bet you $20 that this is infringement; that it's cut and dried.