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

Wow....

[notque]

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?

Re:Wow....

[notque]

Yeah, several of the legal threats I've received in the past have signed off with "Very truly yours." I like to write back with "Extremely truly yours." ;)

They certainly don't have to comply with Marvel's demands, and Marvel probably won't do anything if they do. But they've already almost certainly violated copyright/trademark law, so even if they pull the stuff now Marvel can still sue them. That's the leverage that Marvel is threatening to use unless they get those names.

My question was more, How would they be able to get the names of people who downloaded the skins if they just placed them in an easy to access place. I'm not entirely sure that happened, but I was assuming they just put, "Download this skin". How would you get the names?

Abundantly, and Entirely yours,

-Notque

Re:Wow....

[notque]

but I was assuming they just put, "Download this skin". How would you get the names?

You couldn't. The site operator could produce his access logs, assuming he keeps any, and they would show IP addresses. You could then try to track them back, but as many of not most of them are dynamic addresses, it would take massive cooperation from dozens of ISP's which is unlikely to happen. The even better solution would be to simply destroy his weblogs and then there is no problem.

And that's my point. If you read the cease and desist letter it says one of the conditions for them not to sue, is he gives the names of each individual who downloaded it.

Make your own skins, then...

[Craig Maloney]

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.

Re:Trademarks

[notque]

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.

Pushing to the outler limits

[mugnyte]

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

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

[Ioldanach]

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 on the subject.

hey kids

[Strange Ranger]

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.

OMFG! The Lawyers are totally bluffing them!

[Dolemite_the_Wiz]

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 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

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

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
___________________________________

Re:OMFG! The Lawyers are totally bluffing them!

[bovilexics]

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 are empty, it's enough to bring about the desired action.

Marvel got what they wanted, all material was removed so it will most likely end there. They sucessfully strong-armed the guy into throwing his hands up in the air and dumping everything just to avoid future problems because he didn't have the desire/means to fight it. And why should he? It was something he put money and effort into, not profited from. Why would he want to suffer more for something his was just doing for the common good.

This kind of stuff really makes me sick. Marvel does have the right to protect their property, but at some point there were people within the company supporting him - or so he says. And now this. They definitely beat him into submission as he states -

• I have decided to retire from the world of skinning. Not surprisingly, it has lost any sense of enjoyment and wonder for me.

In fact it appears as though he has pulled all content from the site, and not just the questionable Marvel content - guess we have those bastards to thank for that as well.

Oh, and good luck getting this guy to supply this bit of info -

• Given the apparent willful nature of your actions, Marvel demands that skindex.net disclose all of its activities with respect to its use of Marvel's properties, including but not limited to all sales or distribution of any products bearing any Marvel intellectual property, the names and contact information for all companies that have purchased or downloaded those items, as well as the addresses of any other websites where the infringing properties have been posted.

So it goes, on and on... this is not the first and will surely not be the last story like this posted on /.