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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.
Uh oh... In today's legal system, I hope that is seen as sarcasm.
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Please someone tell me why Hollywood is allowed to put a Ferrari into a movie (even though the driver is the villain), but you can't put a Ferrari into a video game if you're not EA.
I'm frustrated that we can't have real car names in GTA, that we can't get Porsches or Ferraris in Gran Turismo 4, that you could not drive Ferraris or Mercedeses in pursuit mode in earlier versions of Need for Speed because "it'd hurt the company's image to run away from cops", or that game makers are not allowed to implement car damage because of a handful picky car manufacturers.
This is so ridiculous that you have to drive a Ruf (a Porsche tuner) instead of a genuine Porsche in GT3/4 because EA holds exclusive rights on Porsche cars in video games (but is not using it, as ricers are all the rage at the moment).
Simulations are supposed to, duh, simulate reality. So how an Earth what is possible on a video DVD what is not possible on game DVD? Can you imagine Fox barring Dreamworks from using BMW's because Fox owns exclusive rights to the BMW license? That's utter nonsense.
By the way, the Porsche/Ferrari policy also makes little sense as far as the bottom line is concerned. Games are free advertising. If your game is not in a game, you're losing sales to more lenient competitors.
Exhibit A: Gran Turismo made a star of the Mitsubishi Lancer Evolution. Before GT3's success, nobody had heard of this car in the US. But so many asked DaimlerChrysler for EVOs that they eventually decided to import it.
Disclaimer: I'm working at one of the abovementioned companies, and I'm ashamed they still don't get it. I for one hope NCSoft wins, and that game makers are allowed to put in whatever content they wish.
Speaking of lawsuits involving Marvel, here is some news from New York's Newsday:
Comics legend Stan Lee wins judgment worth potential millions
By LARRY McSHANE
Associated Press Writer
January 19, 2005, 5:08 PM EST
NEW YORK -- Stan Lee, the legendary cartoon hero creator who gifted Spider-Man with the powerful "spidey-sense," is feeling a tingling of his own _ in his wallet.
A Manhattan federal judge ruled that Lee is entitled to a potential multimillion-dollar payday from Marvel Enterprises off profits generated by the company's television and movie productions _ particularly the box-office smash "Spider-Man," which earned more than $800 million worldwide, and its hugely successful sequel.
"It could be tens of millions of dollars," Howard Graff, attorney for Lee, said Wednesday. "That's no exaggeration."
The Monday ruling from U.S. District Court Judge Robert W. Sweet found that Lee was entitled to a 10 percent share of the profits generated since November 1998 by Marvel productions involving the company's characters, including those created by the prolific cartoonist.
"I am gratified by the judge's decision although, since I am deeply fond of Marvel and the people there, I sincerely regret that the situation had to come to this," Lee said in a statement.
Sweet's decision didn't mention a dollar figure, although Graff was anticipating a windfall since the ruling also included DVD sales and certain merchandise. "The court essentially ruled in our favor virtually across the board," Graff said. "This is a sweeping victory for Mr. Lee."
John Turitzin, general counsel for Marvel, promised an appeal. Turitzin noted that Sweet ruled Lee was not entitled to money from certain movie-based merchandise, and that the judge withheld judgment on money from joint-venture merchandise sales linked to the Spider-Man and Hulk movies.
"We intend to appeal those matter on which we did not prevail, and to continue to contest vigorously the claims on which the court did not rule," Turitzin said in a statement. The remaining issues could go before a jury if the two sides can't reach a settlement.
The lawsuit marks an acrimonious final chapter in the long and productive relationship between Marvel and Lee, who spent the last six decades working for the company. During a storied career, Lee created indelible Marvel fixtures such as the X-Men, the Incredible Hulk, Daredevil and The Fantastic Four.
"Mr. Lee did not begin this lawsuit without a lot of thought and reservation," Graff said. "He was not pleased to do it. He was saddened by the fact that things came to the point where he had to actually start a lawsuit against Marvel."
The 82-year-old Lee filed suit in November 2002, claiming an agreement he had signed four years earlier entitled him to 10 percent of Marvel's haul from its television and movie productions, as well as merchandising deals.
He already earns a $1 million a year salary from Marvel as part of the agreement, but felt he was getting stiffed on additional income due him under the deal.
The money involved was substantial, particularly involving the Spider-Man and Hulk movies. Spider-Man earned $114.8 million on its opening weekend, with Marvel eventually collecting more than $50 million in profits. "The Hulk" earned more than $125 million in the United States alone.
Copyright © 2005, The Associated Press
In my opinion, Stan deserves every nickel. His comic book series were the premier of the genre in their day. Spiderman was my all time favorite and I was very happy to see how well done the movies were.
"Lack of technical competence coupled with the arrogance of power, as usual, leads to no good end."
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
To be fair NCSoft's EULA states that copying characters that would infringe on other companies IP is not allowed and makes you subject to being banned.
They do routinely do this - via forced renames and costume changes of characters.
While I have seen a lot of copied characters - I have never seen them attain high level. All of the fake hulks and spider-men disappear pretty quickly.
Sometimes my arms bend back.
The saddest part is that the poor, unimaginative youth can't even come up with a decent super hero to rip off. Of course, that's because Marvel has decided to kill off all non-X-Men/Spiderman comics long ago. How I miss the days of Nick Fury, Doctor Strange, Cloak and Dagger, Alpha Flight, GI Joe, Transformers, the NAM, etc.
It's good to see Marvel taking action against the real crime being perpetrated by hundreds of John Q's instead of taking on Disney/Pixar for a blatant ripoff of the Fantastic Four.
A shop selling pencils is not profiting from the drawings that those pencils were used to create. NCSoft, however, is running a commercial service that includes those characters. I don't know what the CoH revenue model is, but even if it's free like Diablo II, that just means that it's funded through sales, and those sales will benefit if the players know that they can pit their pseudo-spidey versus someone else's pseudo-hulk. That probably counts as vicarious infringement.
I think it's a little sad, but will stand up in law IMO.
NCSoft is partly to blame for this problem they are not out to protect anyones IP. I played CoH for afew months after it came out and ran a fairly large group on the protector server. Anyone whos played CoH knows theres not much for a group to do as a group. So I set up a website with what I called a wall of shame and sent some 50+ members out to take screenshots and report all the IP protected characters. We had ALOT of pictures and reported a ton of characters but none of them would get banned. We're talking about obvious characters here too like nightcrawlers and collosus super men and wonder women everywhere. After reporting so many characters we talked to some GM's who said they aren't really concerned with banning these people they just warned them and that was it. I dont play CoH anymore but I still have all those pictures and such on my HD somewhere. In the end it seems all they tried to do was slap some loose rules in place and call it good. BTW clay crayons and such dont come shaped like copyrighted characters out of the box without paying for the use of IP which is why no ones sueing crayola Play-doh and Bic
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.
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