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

[Dachannien]

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.).

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

[J_DarkElf]

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.

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.

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
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