Marvel sues City of Heroes


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Marvel Sues 2 Cos. Over Role-Playing Game

By Alex Veiga, AP Business Writer

LOS ANGELES (AP) -- Marvel Enterprises Inc. is suing two firms behind a computer superhero role-playing game it claims allows players to make virtual characters that are too similar to "The Hulk," "X-Men" and other heroes in the comic book company's stable.

The lawsuit claims South Korea-based NCSoft Corp. and San Jose-based Cryptic Studios Inc. violated Marvel's trademark characters in their game "City of Heroes." Marvel seeks unspecified damages and an injunction against the two companies to stop using its characters.

The personal computer game enables players to design superheroes' look and abilities and then battle against other players' characters in a virtual city. Like similar so-called massively multiplayer role-playing games where thousands of players can be playing simultaneously at any given time, "City of Heroes" claims to offer a myriad of combinations so that no two players' characters are exactly the same.

But in its lawsuit, filed Wednesday in U.S. District Court, Marvel argues that the game's character creation engine easily allows players to design characters that are virtual copies of its own superheros, including "The Incredible Hulk."

The company singles out a game feature for creating "a gigantic, green, 'science-based tanker'-type hero that moves and behaves nearly identically" to the "Hulk." Players can also create a "mutant-based" hero powers and a costume nearly identical to Marvel's "Wolverine," according to the suit.

The New York-based company also took issue with the ability of players to go so far as to name their superhero creations after Marvel comic book characters.

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.

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."

An e-mail sent to NCSoft seeking comment was not immediately returned after-hours Thursday. No number was listed for Cryptic Studios.

The Marvel lawsuit appears to be the first to raise this question in the scope of an online game. But early copyright infringement lawsuits brought by recording companies against pioneer file-sharing service Napster successfully argued Napster was liable for its customers' sharing of music online because they could do so only by accessing the company's computer system.

The argument can still be made that "City of Heroes" is only empowering users to the same degree that an establishment like Kinkos enables customers to make paper copies of copyrighted material, said Fred von Lohmann, senior intellectual property attorney with the Electronic Frontier Foundation.

"Is it a violation of copyright to make up a character in the virtual world or is that fair use?" von Lohmann said. "This is really untested ground in the courts."

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It really, really does. Yes, there are a lot of Marvel clones (mostly because the average player doesn’t have enough creativity to imagine their own superhero), but I don't see how that is the fault of NCSoft or Cryptic Studios. As much as I love Marvel, I do not agree with this decision and have to wonder where it ends. What's next? Do they sue Pixar and Disney since The Incredibles are basically the Fantastic Four?

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Since I haven't played the game, I can only offer a generic opinion. If the game offers "templates" that are identical or nearly identical to Marvel's property, they have a point. However, a video game company that offers the option to create characters cannot control the actions of the people who play the game. Hopefully, this one will be thrown out.

By the way, doesn't one wrestling video game give you the option of creating characters that look almost exactly like Marvel/DC superheroes?

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Templates are not provided. You're given a very generic body (dressed in a green unitard) that you can then customize as you see fit.

As for the wrestling game, it's SmackDown!: Here Comes the Pain and you can create a near perfect Spider-Man and Darth Maul. You can also make so-so versions of other heroes, such as Wolverine, Cyclops, and Daredevil.

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You can make Spiderman and Darth Vader, among others in Smackdown: HCTP. They have the exact pieces of Spiderman's costume AND his entrance (slinking down from the Titantron upside down and swinging to the ring). It's just blatantly obvious that they wanted people to be able to make a ripped off Spidey.

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This is odd. They didn't sue the makers of Freedom Force despite the fact that the Patriot was Captain America with colonial era attire.

Anyway, the Disney channels had the X-Men and Spider-Man toons in heavy rotation this weekend, so the Disney suit over the cartoons probably won't last much longer.

This suit is kinda stupid, there's pretty much every power imaginable in the Marvel Universe, so technically any character could be a Marvel ripoff. Plus, there aren't really any Marvel RPG's (well, X-Men Legends sort of is, but it also has a lot of RTS elements), so why is it NCSoft's fault for letting people RP with superheroes similar to their comic book favorites?

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