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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?
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.
...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
____________________________
Save the World! Use a Quote!
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?
http://use.perl.org
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.
`Lex - Find Me Here: Text Appeal
When it comes to the legal department, Marvel is more Rupert Murdoch than Matt Murdock.
Don't blame Durga. I voted for Centauri.
I think you are going to games.slashdot.org
In the Games section, every article will be about games.
You need to make sure you are going to www.slashdot.org
This article isn't even on the main page (I don't think.)
If every article you are reading is in purple, you are at games. There is a section table to the left hand side as well.
http://use.perl.org
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.
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'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.
If you have 'collapse sections' turned on, then you're going to see all of games.slashdot.org interspersed with the main articles, along with ask slashdot, etc. You can tell because they say Games: in front of them.
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
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 win because the defendant cannot pay the legal costs to keep up with the company, which can keep the case going almost indefinately. No way will the defendant get a pro deo lawyer against Money.
It's as if you're in the debating team, and your opponent pulls a gun -- even if you have the upper hand, he'll still win by default
You want to have a personalised skin so you pick a Marvel Comic Character, that's so lame!
:
I think Josh said it best [about making fps mods]
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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
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My money is also proximal to my mouth
There are places where the networks are not touching,and there are places where they are-Boeing's Lori Gunter
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.
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.
Operator, give me the number for 911!
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
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Save the World! Use a Quote!
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 -
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 -
So it goes, on and on... this is not the first and will surely not be the last story like this posted on /.
Are you bovilexic? Moo!
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.
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?
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?
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Oh? Well, let's see. In the actual LAW, 17 USC 102, the only thing really discussed is this:
Didn't seem to say anything about 'fine art' there did it?
Congress made the following comment discussing this law in the legislative history:
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.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.