Seems like the legal department over at Marvel Comics has been drinkin a few too many Rockstars. As Phil Ortiz posted earlier, Marvel has already sued Disney for illegal use of their comic book characters. Now comes word that they've diversified, suing South Korea-based NCSoft Corp. and San Jose-based Cryptic Studios Inc. for trademark violations and copyright infringement. This whole brou-ha-ha revolves around the recent "City of Heroes" MMORPG. The online game allows players to customize their own superheroes- notably ones that are very similar to recognizable Marvel Comics characters such as the Incredible Hulk and Wolverine.
"Marvel claims the firms' are responsible because the game is played on servers operated by the companies, raising the question of whether a company is responsible for their customers' actions on its computer server." Napster anybody?
Marvel also claims the companies have disrupted its "existing and future" business prospects for licensing its characters in video games similar to City of Heroes.
Howver, does Marvel have a legal leg to stand on?
The game manufacturers are not actively allowing users to create Marvel characters. Rather they have merely given players the ability to fully customize their heroes, which could (and does) lead to users creating characters that are substantially similar to recognizable Marvel superheroes
Further, they specify in the terms of service that ripoff characters are not permitted, and when they are reported/caught they are forced to change names and/or costumes. But are these precautions enough to escape an infringement claim? Stay tuned...
I am familiar with this game and it's my opinion that Marvel is fishing for royalties due to the game's success and/or trying to flex its IP muscles a bit to establish trademark and copyright enforcement.
I am sure Cryptic/NCSoft can show how expensive it would have been to limit their character creation system, such that no customer could create an avatar that resembles a copyrighted super hero. It would have severly limited the potential of their game, as there are a lot of characters in the DC/Marvel universes alone. Instead, via a EULA and good customer support, they remove infringing characters quickly. From my experience, I very rarely see an infringing character (maybe once in 2 months). Other players in the game can and do report the instances of rip-off to the company via an in-game reporting system.
Marvel is going to have a tough time with this one. NCSoft is a big game publishing company and is no light-weight.
Posted by: Hunter Walker | November 15, 2004 at 02:05 PM