Setback for Marvel in NCSoft Lawsuit

DeeFresh writes "An article on Gamesindustry.biz is reporting that Judge R. Gary Klausner dismissed many of the Marvel's claims against NCSoft. From the article: 'Judge Klausner also agreed with the defendants that some of Marvel's allegations and exhibits should be stricken as 'false and sham' because they were not actually created by users of the game but by Marvel itself.'" Commentary also available on Gamespot.com.

Comments

okay i'm confused

[Naikrovek]

who do we like again? we like comic books and we like mmorpgs... so who is supposed to win this?

thanks i have a headache now.

Re:okay i'm confused

[Moofie]

Don't worry: Forming your own opinions and thinking for yourself gets easier with practice.

Re:okay i'm confused

[Bullet-Dodger]

Don't worry: Forming your own opinions and thinking for yourself gets easier with practice.

Yes, forming my own opinions and thinking for myself does get easier with practice.

The whole lawsuit should be considered a sham...

[Danse]

Marvel's hypocrisy never ceases to astound me. If they had actually created all their characters rather than simply copying the ideas of others (who had often copied them from others still), then maybe they'd have a case. As it stands, Marvel wouldn't exist if they hadn't done things a whole lot "worse" than what they're suing NCSoft for.

Where's the irony?

[BrynM]

It would have been so perfect if the ruling had been "Worst lawsuit - evar!"

Re:Where's the irony?

[IMarvinTPA]

My vote is SCO vs IBM for "Worst lawsuit - evar!"

This is just a few steps below it.

IMarv

Re:Where's the irony?

[brouski]

Followed by "'Nuff Said!" and an "Excelsior!"

Re:Where's the irony?

[pbaer]

" It would have been so perfect if the ruling had been "Worst lawsuit - evar!"

That title goes to the lady who tried to dry her cat off in a microwave and then sued the microwave company because her cat died.

Re:Where's the irony?

[Anonymous Coward]

Nope.

Easy

[hsoft]

Whoever has the fewest patents registered.

It's because they don't care about the context.

[Anonymous Coward]

For them, there are only two contexts for anything. For His Glory, and everything else. How they decide what's what is simple, if you go to their church it's all good, if you don't it's evil.

Really, they're just terrified that there might be people having a good time, living their life, completely free of self-impossed suffering. They're playing a different game, and it's "not fair." Since they can't convince people to play their game, they want to make all the competing alternatives illegal.

Copywriting ideas?

[Mumpsman]

Is it just me or does this sound like Marvel is trying to claim ownership of super-heros as a concept? How is creating my character on-line to look like the Hulk any different than making my own Hulk halloween costume and wearing it out in public? I'm not claiming to be officially representing Marvel in any way, and you'd have to be a pretty big idiot to think I was.

I play Call of Duty as "Dr. Johnny Fever" could the creators of WKRP have a case against me or the game developers? I call Shenanigans!

Re:Copywriting ideas?

[Harodotus]

actually those ARE examples of copyright infringement under current law, especially since you are in fact actually representing yourself as a replica of those two very similar characters that are owned by those corporations.

Now if you were doing it as a form of creative parody... that would be a whole different kettle of fish.

Re:Copywriting ideas?

[RaboKrabekian]

The difference in that case is that you're not making any money dressing up as the Hulk. NCSoft is making money when users run around as the Hulk.

Marvel *should* be allowed to copywrite the Hulk. They shouldn't be allowed to copywrite the idea of makng superheroes and playing them in games, though.

This case would be a slam dunk for NCSoft in my mind if it wasn't for the claws power. Three metal claws than come out of the knuckles and go "snikt?" They could have done a little better there...

Re:Copywriting ideas?

[Anonymous Coward]

The difference is that you making your own costume is not making you money. They are suing a company selling a service/product that they feel is inringing on their property.

I play CoH and think Marvel is out of line. Their claim is the game allows members to copy their characters look (the game changes any names similar to trademark ones to GenericHeroXXXXX). It can be done (wolverine is an easy copy so is hulk. Others are harder) but it is not a commercial advantage to the game developers or a selling point.

Re:Copywriting ideas?

[MRL1979]

Actually, there are some Asian cultures which have weapons similar to the "claws", so it's not as though Wolverine's weaponry are something Marvel can claim exclusive rights to; they can only claim Wolverine himself. As for the way they come out, and make noise, well, just about every weapon in CoH makes noise when drawn, and they all seem to come from odd little "pocket universes" around the wielder's body...

Re:Copywriting ideas?

[RaboKrabekian]

I agree, but if you play coh you know how strikingly similar the claws power is to Wolverine. It's the way they look, how they come out, the sound, the stance the avatar takes once they're out, the powers that use them. That powerset specifically is basically a Wolverine Construction Kit(TM).

Re:Copywriting ideas?

[vjmurphy]

Except that Marvel doesn't have a copyright on claws coming out of knuckles with a sound effect. What they have is the rights to a character named Wolverine with those qualities. It's like saying that any superhero with super speed that leaves a trail behind him is a Flash ripoff.

Re:Copywriting ideas?

[Beyond_GoodandEvil]

You mean like Quicksilver?

Re:Copywriting ideas?

[Mumpsman]

And the face paint manufacturer is making money by selling the green paint I used to make my halloween costume. So technically they could also be sued.

I guess if I want to see great games continue to be able to be published I better go home and change my charaters name to "Player". Or would that then open the game industry to lawsuits from Snoop Dogg?

Re:Copywriting ideas?

[servognome]

I'm not claiming to be officially representing Marvel in any way, and you'd have to be a pretty big idiot to think I was.
It doesn't matter if you are claiming to represent them or not, if a reasonable person can be confused then you have violated Marvel's copyright/trademark. If you're drunk at a costume party no big deal, since reasonable people would understand you are not representing marvel. If you're in front of a comic book store alone cursing out kids, then a reasonable person could infer that you represent marvel and you would in fact be damaging the value of their property.
Personally I don't think the case has merit, since the game has rules against flat out copying, and people recognize there are no "official" Marvel characters within the context of the game.

Re:Copywriting ideas?

[Kwil]

No. They shouldn't.
They should be allowed to trademark the Hulk.

Big difference.

Re:Copywriting ideas?

[SuiteSisterMary]

To be fair, exactly how many stances and moves can you usefully use with blades in a fixed position on the back of your hand?

Re:Copywriting ideas?

[Minna Kirai]

If you're in front of a comic book store alone cursing out kids, then a reasonable person could infer that you represent marvel and you would in fact be damaging the value of their property.

Ok, that right there shows you have no recognition of what "reasonable" is.

Re:Copywriting ideas?

[servognome]

Ok, that right there shows you have no recognition of what "reasonable" is.
Somebody in a Hulk costume at a location where comic books are sold; it's a location where you would suspect brand promotion, hence it would be reasonable to infer there is a link between the person and the Marvel.

Re:Copywriting ideas?

[swv3752]

The RPG Shadowrun also had a cyberware hand claws. It was widely regarded to be a copy of Wolverine then, but there is a limited number of ways to hide a set of knives inside the arm.

Re:Copywriting ideas?

[Thangodin]

If you're in front of a comic book store alone cursing out kids, then a reasonable person could infer that you represent marvel and you would in fact be damaging the value of their property.

Or if you're a lawyer trying to sue a game for allowing fans of Marvel to play characters like their favourite heroes... oh, wait, they are doing that.

Lawyers and good publicity don't mix. Besides, Marvel went to great lengths to try to screw Stan Lee out of every penny they make on the characters he created. I have no sympathy for these corporate low-lifes.

The Judge...

[tprime]

Now, how do we get this judge to preside over the ongoing debate of fair use in the digital world? Judge Klausner seems to actually "get it" that just because a product exists, it isn't going to immediately be used to steal or infringe upon copyrights.

I have a feeling that the judgement in this case is actually bigger than we realize right now.

DC vs. Pixar?

[White Roses]

On the basis of this, shouldn't DC be suing Pixar? I mean, "Elastigirl" is basically "Plastic Man" with breasts (and Plastic Man could have breasts anyway, he's plastic!). They have some of the same letters ("lasti"), and sound superfically similar. Plus, evil Pixar even flaunted it by putting Elastigirl in a red outfit! I mean really.

Gazerbeam? Total rip-off of Cyclops (Marvel again).

The point is, in most cases, the super-hero genre is a string of characters with similar abilities all with slightly different names or secondary powers. There's going to be a lot of overlap. Marvel would have to prove that NCSoft set out to promote said infringement. That's not the case. NCSoft is more like Xerox (or, say, a beat-up old Canon multifuction ink jet printer/copier/fax): you can make "infringing" copies, but (a) that's not the intent and (b) the copies all kinda suck anyway.

Re:DC vs. Pixar?

[MRL1979]

I could be mistaken, but I believe DC actually did make some "requests" of Pixar due to DC's already-existing (4th-tier) character Elastic-Girl. As I understand it, the agreement reached was that Pixar could use the name in the movie, but not in outside promotional pieces, which is why she's labelled "Mrs. Incredible" in the print ads (at least the ones I've seen). Of course, this is all just what I've heard third-and-fourth-hand, so it could be bunk.

Re:DC vs. Pixar?

[randalx]

Actually I find it's more a rip off of the Fantastic Four. Mr Fantastic - stretches Invisible Woman - force fields / invisibility Thing - strong Human Torch - fire Just make a few minor changes to satisfy the lawyers and voila.

Re:DC vs. Pixar?

[Minna Kirai]

On the basis of this, shouldn't DC be suing Pixar? I mean, "Elastigirl" is basically "Plastic Man" with breasts

No, it's totally Marvel's Fantastic 4 there.

A) The Incredibles, a superhero team/family of 4 members, lead by Mr. Incredible, who named the team after himself. It includes a husband/wife and brother/sister. One of them is tough and strong, one is invisble and makes force-field bubbles, one stretches out limbs, and one runs fast. There's also a super-powered baby who's not exactly in the team.

B) The Fantastic Four, a superhero team/family of 4 members, lead by Mr. Fantastic, who named the team after himself. It includes a husband/wife and brother/sister. One of them is tough and strong, one is invisble and makes force-field bubbles, one stretches out limbs, and one shoots fire. There's also a super-powered baby who's not exactly in the team.

In case you missed it, the only difference in those discriptions is running fast vs shooting fire. Oh, and the fact that one of them was published 50 years before the other. In a reasonable copyright system, Fantastic Four would be public domain already.

Re:DC vs. Pixar?

[Anonymous Coward]

"Elastigirl" is basically "Plastic Man" with breasts (and Plastic Man could have breasts anyway, he's plastic!).

Ugh. You just put it in my head that there's real no reason to believe that Elastigirl was born female. (The kids could be adopted, after all.)

Makes the whole movie a little different, doesn't it?

Re:DC vs. Pixar?

[Anonymous Coward]

Marvel prefers to sue easy targets. Nearly all targets are softer than Disney. :)

Join Em!

[blueZhift]

Now that Marvel's silly claims are falling flat in court, it might be a good time for them to team up with NCSoft and give their fans what they want. Why not go ahead and license the characters to NCSoft in a special expansion pack with a premium monthly surcharge? Fans who want to play as or against Marvel characters get what they want, and Marvel and NCSoft get some extra cash. This seems to make so much more sense than duking it out in court.

Re:Join Em!

[brouski]

Marvel is already planning their own MMORPG.

The more cynical among us suspect this was a primary reason for the lawsuit in the first place.

Re:Join Em!

[Anonymous Coward]

Bad idea. The game is great because it allow you to create your own hero. Those lazy uncreative bastards copying comic heros are flash in the pan. I don't want to play Thor or Captain America, if I do I'll buy Marvel's game.

Re:Join Em!

[brouski]

What's ironic about that is the chances are almost nil you'd be able to play an existing character in Marvel's game.

Re:Join Em!

[Dachannien]

That certainly won't stop Legolass, Leggolas, Legollas, or Legolous from making appearances in Middle Earth Online.

Re:The whole lawsuit should be considered a sham..

[Anonymous Coward]

Lie, cheat, and steal to get successful. Then change the laws so others can't do the same.

Re:The whole lawsuit should be considered a sham..

[Anonymous Coward]

Marvel was a creative force making some of the best comics for decades. To slight their efforts from the past due to bad business practices today is ridiculous.

Frivolous Copyright Claims

[Ghetto_D]

If legislation like this is actually passed, will kids be sued for homemade costumes? If you send your son treak-or-treeting in a homemade Spiderman costume because you couldn't afford an officially endorsed one, will you be fined? Will every 5 year-old boy who dreams of flying and runs around his backyard be sued for copyright infringement?

Re:Frivolous Copyright Claims

[Ghetto_D]

Sorry for the typos. It's hard to type with my Marvel-copyright-infringing Wolverine claws.

Re:Frivolous Copyright Claims

[superpulpsicle]

ROFLMAO Marvel copyright infringing claws. I got no mod points, otherwise you get a +90 creativity!

Re:Frivolous Copyright Claims

[Anonymous Coward]

If legislation like this is actually passed, will kids be sued for homemade costumes?

Oh come on, don't be ridiculous. Obviously it's the people selling the fabric that allows kids to make infringing costumes that should be sued!

key point

[Sparr0]

I think the most interesting point here is how Marvel tried to submit 'evidence' involving characters that THEY had made in the game. Duplicates of their characters that no normal user had ever produced.

Re:key point

[EvilIdler]

..except for "W 0lverine" on Protector, of course. And Mr. Incredible
and..

Re:key point

[Cap'n Steve]

Exactly. Were they supposed to sit around taking screenshots of players until they found a good one? They're sueing the people who made the game, not the people who play it. Why would it matter who created the characters when the crux of the accusation is just that it's possible?

Re:key point

[geminidomino]

It goes back to the pencil argument so prevalent when this story first broke.

Making them themselves is like having Marvel artists buy a box of Faber Castell #2 pencils, drawing up Wolverine and Spidey and Doc Oc and Bananaman and...

and then taking those as "evidence" that FC should be sued because their product "can be used to infringe [trademarks]"

Re:key point

[Anonymous Coward]

I was around when that happened.

One even there was a huge influx of newbie Marvel characters.

Someone who looked like spiderman, wolverine, hulk, marvel girl, ice man.

Happened again recently as well except the population is so pissed off over Marvel that anyone doing it gets reported and gets thier costume nuked and the name changed to "GenericHero2342".

Re:The whole lawsuit should be considered a sham..

[Danse]

They did make some great comics. But this isn't really about the quality of their stories. This is about the characters, and in a way, not even that, but just about the look and feel of the characters. How many of Marvel's characters were ripped off of other existing characters? A lot. Now they made up new stories and such for them in most cases, but it's obvious where the ideas came from. There's a couple articles I've seen that even go through and list a lot of the comparisons between Marvel characters and the characters they were based on. Now they're suing NCSoft for even less than that. Just for the fact that players of the game can create characters that look like Marvel characters and have similar powers. How wrong is that? I stand by my post.

Marvel v. Capcom

[tepples]

Three metal claws than come out of the knuckles and go "snikt?"

Look at Vega's weapon in Capcom's Street Fighter II, and compare it to Wolverine's. If "Marvel vs. Capcom" weren't an arcade fighting game, it would be a lawsuit.

Re:Marvel v. Capcom

[KDR_11k]

Volverine's claws are mounted into his skeleton or something, Vega uses a weapon mounted to his wrist. Claw weapons are historical, claw implants aren't. But no matter what, you can only copyright a design, not the idea behind it.

ISP style protection upheld

[snuf23]

Now I find this really interesting:

"He further dismissed Marvel's claim for a judicial declaration that defendants are not an online service provider under the Digital Millennium Copyright Act, which offers a degree of protection in such cases."

I never even would have thought of using that as a defense, although in retrospect I guess it makes a degree of sense.
This is the same protection afforded to ISPs that make them not liable for transfer of copyrighted materials over their connections.
The difference to me is that NCsoft is providing the tool (software) which is allegedly being used to create the infringing works whereas an ISP is merely the transport mechanism that could be used for illegal copyrighted works.
The comparison to the VCR case is very interesting as well. The VCR can also be used as a transport mechanism for duplication of illegal copyrighted works, but it is not a tool that can create materials that violate copyrights.
Go NCsoft! Throw Marvel out of the courtroom!

And for everyone who says that Marvel MUST file this lawsuit or risk losing rights to its intellectual property - if so how come we haven't seen identical suits filed by DC Comics and other superhero creators?

Re:The whole lawsuit should be considered a sham..

[johnkoer]

Reminds me of a simpsons episode:

Myers: Okay, maybe my dad did steal Itchy, but so what? Animation is
built on plagiarism!
[lawyer slaps his forehead]
If it weren't for someone plagiarizing the Honeymooners, we
wouldn't have the Flintstones. If someone hadn't ripped off Sgt.
Bilko, they'd be no Top Cat. Huckleberry Hound, Chief Wiggum,
Yogi Bear? Hah! Andy Griffith, Edward G. Robinson, Art Carney.

Myers: Your honor, you take away our right to steal ideas, where are
they gonna come from? Her? [points at Marge]

Lego?

[tepples]

"Legollas"? More like a minifig.

Marvel

[rsilvergun]

at least until NCsoft stops claiming ownership of their users' creations. Marvel kinda has to defend themselves there....

Re:Marvel

[Anonymous Coward]

Hold on a second. Back when Universal sued Sony, the Supreme Court ruled that a company couldn't be held responsible for the actions of its customers. This is esstially the same thing. The City of Heroes guys are offering a product, in this case an MMORPG, and certain users are performing copyright infringement using that product. The company can't be held responsible for that sort of thing. It isn't like City of Heroes generated advertising using Marvel characters, they used just said "make your own super hero".

Re:The whole lawsuit should be considered a sham..

[aztektum]

The difference now is 40+ years ago when Marvel "created" all these characters, they didn't really have the clout they do today.

Re:The whole lawsuit should be considered a sham..

[Lord Kano]

To be fair, how many different superpowers can you come up with?

Really Strong Guy
Really Smart Guy who makes gadgets
Guy who can fly

Mix in a few other powers, combinations of powers and female characters and you still have a pretty limited set to work with.

It's only logical that some characters will be similar.

LK

Can anyone who played COH enlighten me ?

[88NoSoup4U88]

How does the character creation works :

What I got from previous articles on this lawsuit, you can change the body-size of someone ; Going from small to 'Hulk'-proportions :
What can you shape ? (like, can you choose between a few templates, or can you manually enlarge/change the upper/middle/bottom part ?)

As for the textures ; What assets can be used by the player to create his hero ?
for instance, if someone is given the option of exactly the same wrist-blades Wolverine would have ; Wouldn't that be infringing on some ideas/rights ?

Alot of questions, but I've never come around to playing COH (read : I don't like to pay a monthly fee for a game) ; But to me it just seems that Marvel is awfully pissed at them for just beating them in creating a solid superhero MMORPG universe... Defenitely if you've seen what shit-games have been released with Marvel characters.

Re:Can anyone who played COH enlighten me ?

[2Flower]

I can help here.

Body size -- As of the Issue #4 patch going in soon, you can re-scale torso, chest, shoulders, nose, eyes, head, etc, etc. It's a full control over body shape. You start with three bases, male, female and "huge"... but there are hundreds of "huge" style super heroes, not just hulk, so nothing innately about that screams Hulk.

Textures -- You can't give them specifically ripped purple shorts. There are no ripped shorts. You can give them some sort of purple pants or tights, but not the specific style. You can give them green skin. And since Hulk only has two identifying traits, green skin and purple shorts, that means you can KINDA make something similar -- in the same way you could with two crayons.

Powers -- The only power set that's close to a blatant ripoff is the claws. But the claws don't "emerge" from your flesh like Wolverine's, they're bolted to a metal object on the back of your hand. The animations are similar to Wolvy's, though, that's iffy. But the Regeneration power has a lot of green glows and auras Wolverine does not have. You can't make a costume that's perfectly matching Wolverine's, just a horribly cheap knockoff that, if you didn't have your glasses on, could be mistaken for him.

Basically, the only thing in the game that is really questionable are the claws and claw animations. If Cryptic reanimates those, then they're golden. None of the other power sets or costume pieces directly duplicates a known hero -- at least not a hero with unique powers. PLENTY of heroes have laser eyes, or shoot power from their hands, or burn things. You can't copyright that.

Re:Can anyone who played COH enlighten me ?

[88NoSoup4U88]

Thank for the explanation.
As you're bringing up the claw(animations) : You sure that other things might not be ripped off (not a Marvel/comic fan myself),but I would imagine Hulk (having seen the movie, and read some of the comics) also has some 'moves' which are fairly well recognisable (hard to explain) by his character.
Same would go for maybe Cyclops, etc.
I'm not saying that even how a character moves might be copyrighted (nor does the judge apparently ;)) and clearly they have been inspired by Marvel, or superheroes in general.

As said, Marvel's just pissed off they didn't do this first :)

Re:Can anyone who played COH enlighten me ?

[Anonymous Coward]

I found a screenshot of the character creation. There are also a lot of other screenshots online if you'd like to see what the game looks like.

If you like superheroes, it's an extremely fun little game that I highly recommend. FYI, 30 days of online play is included with the game (which is now only $29 at retail for the standard or the DVD version). Seeing as how most games I play don't last that long (I usually beat them within a couple of weeks then never play them again) - I think it's worthwhile even if you never play after the free period (and after you've played for a month you should have a good idea if it's going to be worth a monthly fee for you).

Re:Can anyone who played COH enlighten me ?

[Walkiry]

You can simply look at the examples in the CoH webpage.

i'm drunk

[Anonymous Coward]

I'm drunk and hilarious right now!!!!!

I rule!!!!!!!!!!!!!!!!!!!!

Hah...

[Ayaress]

I must have seen that episode a dozen times. Only seeing it in print did the Chief Wiggum bit register properly. Great show. Find new things to laugh at even years after you thought you'd wrung an episode dry.

Re:The whole lawsuit should be considered a sham..

[mOdQuArK!]

The power to exude the smell of different kinds of cheese!