April 2005
Spiderman and Co versus the Do-it-Yourself Superheroes
Last November Marvel Enterprises, owners of the comic empire including characters such as the Incredible Hulk, Spiderman, Wolverine and Daredevil, issued proceedings in America against Korean publisher NCSoft and LA based developer Cryptic Studios, claiming that the NCSoft game MMORPG City of Heroes enabled players to create its own characters and as a result enabled the creation of characters in the likeness of Marvel superheroes. It believed this to be a copyright infringement. Marvel had also claimed for trade mark infringement however this claim was struck out by the judge.
This case is unusual in that this is the first time that a publisher has been sued over content created by players, and the case could set a precedent for future lawsuits.
Recent weeks have seen a preliminary decision by the judge in the case who NCSoft claim dismissed more than half of Marvel's claims. One of Marvel's claims allegedly consisted of an allegation of direct copyright infringement. This would seem to be a hard claim to sustain considering that NCSoft have not seemingly included a substantial part of any of Marvel's superheroes
Marvel have however taken pains to make it clear to players of the game that they will not be subject to action by Marvel and we shall keep updating this case as more information comes in.
BRIFFA Comment:
This may be a difficult case to bring in the UK. Marvel are trying to argue that NCSoft will be infringing Marvel's copyright in the event that players use City of Heroes to produce infringements of Marvel characters. Without seeing the exact superhero "components" or "body parts" that are available to players to piece together it is difficult to comment however if players are literally creating their characters from scratch Marvel's argument would be tantamount to saying that the vendor of a pencil may be guilty of copyright infringement as that pencil could used to draw Mickey Mouse or some other existing character.
If, on the other hand, the NCSoft game consist of Spiderman and the Hulk broken down into pieces so that they can be reformed by players then an infringement may well have taken place. It will be interesting to see how this case progresses in terms of potential ramifications for both the games industry and character licensing industries.