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Marvel / NCSoft Litigation Update
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..."
because they want to put out a MMORPG now too.
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.
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"Open source is good." - Steve Jobs
"Open source is evil." - Microsoft
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.
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.
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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
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.
Slashdot Patriotism: We Support our Dupes!
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.
Vintage computer games and RPG books available. Email me if you're interested.