New efforts!

[blacksly]

Legally and ethically, what's the difference between a program that gives you the tools to replicate the appearance and visual capabilities of fictional characters in alternate settings, and a program that gives you the tools to replicate the synthesized writing styles of a lot of different famous authors?  I don't have good answers to that question myself, but it is something I have thought about off and on ever since the Marvel case was first discussed.  That's how complicated I think the question is, that it is worth ten years of thought.  This example above, is just one tiny nugget of the thought process.

I think that a large difference would be whether the tools have any effect to steer the user towards a resemblance to copyrighted works, or not. In your example, the tool does, if requested, steer the work towards a similarity to copyrighted works. In the case of crayons and paper, they do not, because there is nothing in the paper and crayons that makes you more or less likely to draw a clawed fighter with 1, 2, 3, or 4 claws, or with the claws coming from the fingers or from the hands or from the wrists, or with colors matching any of Wolverine's costumes.

So the argument expressed towards City of Heroes is whether CoH's costume designer did or did not steer a character towards a similarity with published works. It would seem that at game end, when you could pick several choices of how the Claws powerset appears, it steered you less than at the start, when the Claws powerset bore a noticeable similarity to Wolverine's claws, and you had no choice about it. Similarly, if instead of a Mace set we had a Hammer set, with the hammer appearing exactly like Marvel's Thor, that would be another case of steering character towards mimicking copyrighted works.

Marvel's argument seemed more a case of "you can mimic exact designs of copyrighted characters", rather than "you can make superheroes and use the same colors as our copyrighted characters". Like the difference between having Superman's S emblem as a chest emblem versus a more generic S. So, I think, as long as the program EITHER makes all designs possible (such as with crayons), OR avoids all exact duplications of distinguishable hero features, it would be far less vulnerable to copyright lawsuits. But if it only has a limited number of choices available (like CoH), and those choices include close versions of distinguishable features, then it's more vulnerable to lawsuits.

[darkgob]

Similarly, if instead of a Mace set we had a Hammer set, with the hammer appearing exactly like Marvel's Thor

You mean...like this?

https://paragonwiki.com/w/images//0/0c/Warhammer_Final.jpg

[Stealth Dart]

As compared to this....
https://images.weserv.nl/?url=i66.tinypic.com%2F24ox3ky.jpg

[Arcana]

Marvel's argument seemed more a case of "you can mimic exact designs of copyrighted characters", rather than "you can make superheroes and use the same colors as our copyrighted characters". Like the difference between having Superman's S emblem as a chest emblem versus a more generic S. So, I think, as long as the program EITHER makes all designs possible (such as with crayons), OR avoids all exact duplications of distinguishable hero features, it would be far less vulnerable to copyright lawsuits. But if it only has a limited number of choices available (like CoH), and those choices include close versions of distinguishable features, then it's more vulnerable to lawsuits.

I think that's why they should have, and probably would have eventually lost on the merits.  However, I think they had a better argument available to them, which they never seemed to imply they were even thinking about in their legal documents.  I've always worried about even mentioning it, out of fear that perhaps I had an original legal theory that was best kept buried.  But I think enough time has passed for that risk to be minimal for this situation.

Consider hypothetically I'm a Marvel attorney deposing Cryptic developers.  I'm going to use Jack as a proxy for all of them collectively.

Law-cana: Mr. Emmert, please explain how you decided which "powers" would be included in the original City of Heroes game.
Emmert: Well, we tried to come up with a nice range of abilities that customers would associate with "superpowers" their characters could possess.
Law-cana: Superpowers that comic book superheroes possess?
Emmert: Basically yeah.
Law-cana: How about Claws?  Can you describe the thought process that went into including that power.
Emmert: I don't understand.
Law-cana: Well, the game has a power where you can shoot a rifle and another power where you can shoot energy at villains.  Claws seems rather pedestrian by comparison.
Emmert: Well, we wanted to make sure that players could make lots of different kinds of characters with a wide variety of powers, not just the most powerful ones.
Law-cana: But Claws seems unusual.  What made you think anyone would even *want* to make a superhero that had Claws.  Are there any superheroes that use Claws?
Emmert: Of course there are.
Law-cana: One in particular.
Emmert: There are many superheroes that use Claws.
Law-cana: But one is likely to be more well known than the others.
Emmert: Possibly.
Law-cana: When you were discussing which powers to include in City of Heroes, at any time did the discussion mention Wolverine, and whether or not customers would want to make characters like Wolverine?
Emmert: Its possible.
Law-cana: Is it possible that the designers looked at the character of Wolverine, broke him down to his components, and tried to make sure that things like his Claws and his rapid healing were in the game specifically?
Emmert: Well yeah, but lots of other characters have Claws, and lots of other characters have rapid healing.
Law-cana: That's true.  To your knowledge, were any of those characters discussed in any detail when designing the Claws powers or the Regeneration powers?
Emmert: ...

I am of course oversimplifying the concept and putting words in someone's mouth that should only be understood to be a pure hypothetical invention of mine.  Having said that, Marvel went after the notion that since you *could* make Wolverine in the game and NCSoft sort of nudge-nudge wink-wink suggested you could and didn't adequately police overt copies of Wolverine, that infringed upon their rights.  I think that opened the door to the counter-argument that Marvel doesn't own those different pieces that make Wolverine, and NCSoft can't be blamed for how someone else puts them together.

But if Marvel could make the argument that those pieces were not just coincidentally capable of making Wolverine, but instead were conceptually "cut out" of Wolverine, for the customers to simply put back together, I think you could make the legal argument that while independent invention of rapid healing and claws weapons is not a violation of Marvel's rights, taking apart one of their characters and selling the pieces could be, *if* (and this is a big if) you could prove that's what happened in development.

And who here believes that *didn't* actually happen in development?  "Let's make sure the customers can make something kinda like Wolverine" is something I would bet my 401k was uttered in some fashion at least once before these things were actually designed.

Meanwhile, Marvel's *actual* legal arguments, at least as set forth in their complaint, read like a bad internet forum argument.

[JanessaVR]

Meanwhile, Marvel's *actual* legal arguments, at least as set forth in their complaint, read like a bad internet forum argument.

For which we can be profoundly grateful.

[Thunder Glove]

And I really can't think of too many other comic characters who use the "blades that spring from the back of their hands" kind of claws.  There's plenty who use sharpened fingernails as claws (though even there, the one that comes to mind immediately is Sabretooth, Wolverine's main enemy), but that wasn't what the Claws set was.  (Based on the description, Savage Melee was the "fingernail claws" powerset)

Oh, and another one I just thought of - I remember reading somewhere that the whole idea behind the crash on Blaster T9 powers is to emulate the Human Torch's Nova Flame.  (In fact, Inferno, the T9 from Fire Blast, was even a PBAoE like the Nova Flame is usually depicted)

And the Super Strength set seemed rather Hulk-centric, with the Hulk's trademark Hand Clap and a power-up based on "Rage" (not to be confused with the Brute's Fury, but that's also rather Hulk-like).  KO Blow was more like a Popeye Twisker Punch, though, and the other punches weren't particularly Hulk-like.  Some of them were so odd that they weren't really like anyone (in comics or otherwise), like the animation that looked more like a standing elbow drop than a punch.

[Arcana]

For which we can be profoundly grateful.

MM3Squints linked it earlier; I'll repost the link here: https://www.eff.org/files/filenode/Marvel_v_NCSoft/20041115_marvel_ncsoft.pdf

It is worth actually reading, because it makes you wonder if Marvel's legal team had ever read a comic book before, played a video game before, or even attended a law school.  Among the many gems in the complaint:

1.  The character of Statesman is "strikingly similar" to Captain America (see [15] in the complaint).  They point to the fact that Statesman has a white star on his costume just like Captain America does "on his chest and shield."  The complaint doesn't mention Statesman doesn't have a shield, shoots laser beams out of his eyes, and can fly.  The complaint also states that to disguise this fact Statesman wears a helmet "nearly identical" to the one worn by Magneto.

Reference: Statesman helmet:
https://biobreak.files.wordpress.com/2009/11/cohimage.jpg

Magneto helmet:
https://images.weserv.nl/?url=static.comicvine.com%2Fuploads%2Foriginal%2F1%2F15659%2F2438732-magneto_helmet_by_karsten_klintzsch.jpg

Greek Corinthian helmet:
https://images.weserv.nl/?url=cdn.iofferphoto.com%2Ft%2FnvqlKCpJoCsWIHUMN04IMU63Wrs%3D%2Fadaptive-fit-in%2F232x232%2Ffilters%3Afill%28transparent%29%2Fimg%2Fitem%2F547%2F720%2F296%2Fo_greek-corinthian-helmet-collectables-larp-helmets-ce04.jpg

2.  "Virtually all the Marvel Characters" are Mutants: [16].  Um, what?

3.  The CoH character creator does not allow players to "start from scratch" when making a character: they have to pick from the choices that the character creator gives them during character creation [16].  This is word salad.  What does start from scratch even mean in this context?

4.  The CoH character creator basically *forces* players to make infringing characters [18].  How?  Because when you start, there's five origins and mutant is one of them.  If you pick mutant you have to pick from five archetypes, and scrapper is one of them.  If you pick scrapper then you have to pick a primary power set, and Claws is one of them.  If you pick Claws then you have to pick a secondary set and Regeneration is one of them.  If you pick Regeneration, then presto, you were basically compelled to make a clone of Wolverine, because all mutant scrappy claws-wielding fast healers are Wolverine, and clearly you had no choice but to clone Wolverine.  Quod erat demonstrandum. No, seriously, this is their argument.

5.  The use of a character called "Statesman" which "implies patriotism" along with a really big white star is likely to "cause confusion, mistake, or deception" in violation of the trademarks associated with Captain America [61].  Yep, this is a real argument in Marvel's complaint: that Statesman infringes on the trademarks of Captain America because he has a vaguely patriotic name and a white star on his costume, and Marvel basically asserts ownership of heroic super powered patriots wearing white stars.

This is so absurd on its face that I feel compelled to quote the relevant part of the complaint in its entirety, to assure people I'm not taking anything out of context:

58.  Marvel has used the "Captain America" mark in commerce since 1940, the "The Incredible Hulk" mark since 1962, the "Wolverine" mark since 1974, and the "X-Men" mark since 1963.  In addition, Marvel has for many years used thousands of other marks that identify and relate to the enormously popular Marvel Characters.
59.  Marvel is the owner of U.S. Trademark Registration No. 854655 (for "Captain America"), No. 890917 (for "The Incredible Hulk"), No. 1395639 (for "Wolverine") and No. 1161898 (for "X-Men").
60.  Defendants have been using "Statesman," a character that clearly is derivative of Marvel's Captain America, in connection with their sale, offer for sale and advertising of City of Heroes.
61.  Defendants' use of the star emblem that identifies Captain America, together with the use of the name "Statesman," which suggests the patriotic qualities of Captain America, is likely to cause confusion, mistake, or deception, in violation of 15 U.S.C. 1114(1)(a).
62.  Defendants' use of "Statesman" in connection with their sale, offer for sale and advertising of City of Heroes with knowledge of Marvel's trademark rights renders Defendants' trademark infringement willful.

15 U.S.C. 1114(1)(a) specifically refers to using someone else's trademark without permission.  NCSoft's own motion to dismiss specifically called out Marvel on this:

Marvel is shrewdly vague about which of its rights have been violated.  It alleges copying of "numerous Marvel Characters" totaling "over 4700" see, e.g., Complaint 14,30-33, yet it pleads copyright registrations in only four issues of comic books.  Any such claims are limited to those four works.
Marvel also alleges four registered trademarks - the words CAPTAIN AMERICA, THE INCREDIBLE HULK, WOLVERINE, and X-MEN - for comic books and illustrated magazines.  Marvel suggests it owns common-law rights in a "star emblem that identifies Captain America," Complain 62, but does not allege that it has used the emblem to identify its products, a basic requirement of a trademark.  Its claims are thus limited to the four registered word marks.

NCSoft motion to dismiss

In other words, Marvel's attorneys claimed that NCSoft violated its trademarks by listing this as its trademark - CAPTAIN AMERICA - and then suggesting that the character whose name is STATESMAN and wears a white star violates that trademark.  They are supposed to teach you in kindergarten, much less law school, that the word STATESMAN is not substantively identical to the words CAPTAIN AMERICA and that a white star is not even a word.  If I were to trademark the word "WATER" (I can't) then I can't accuse someone of using the word "THIRSTY" because it makes people think about WATER.  The law is weird, but it is not that weird.

As I said before, the legal situation is I think more murky than it might first appear.  However, there's no question at all that Marvel's attorneys are (or were) complete idiots.

[JanessaVR]

Ok...I had absolutely no idea just how much crack they were smoking.

[darkgob]

The thing about Magneto's helmet is especially hilarious since Statesman doesn't even wear a helmet -- it's a mask.

[MM3squints]

The full transcript including all the evidence and other court docs to the case can be found here

https://www.eff.org/cases/marvel-v-ncsoft

Damn, this case went on for 3 years.

[ivanhedgehog]

As compared to this....
https://images.weserv.nl/?url=i66.tinypic.com%2F24ox3ky.jpg

you need to remember Marvel does not hold a copyright to the character thor. only certain visual renditions of the character thor. the norse were using "thor" looong before marvel ever started.

[Arcana]

Ok...I had absolutely no idea just how much crack they were smoking.

Even as we loathe them or make fun of them, we often operate on the presumption that lawyers are smart people.  The presumption is that you have to be smart to attend and graduate from law school, you have to be smart to pass the bar exam, you have to be smart to practice law successfully.  None of those things is true.  For every Perry Mason, Michael Kuzak, or Hank McCoy, there are hundreds of C+ students with the reasoning skills of a bag of walnut shells.

[Vee]

It's amazing the X-men evolution people were able to come up with X-23 before CoX came along.

You'd think Marvel's lawyers would be more intimately acquainted with copyright infringement law given that Marvel (DC too) has been pushing the boundaries of those laws since before they were even called Marvel comics. Even if Statesman had a shield, took a serum, and had wings and an A on his mask he'd still probably need his real name changed to Steve Wogers to compete with Deadpool in the infringement Olympics.

[Arcana]

you need to remember Marvel does not hold a copyright to the character thor. only certain visual renditions of the character thor. the norse were using "thor" looong before marvel ever started.

Marvel owns the copyright to a fictional character called Thor.  They don't own the copyright to the Norse God Thor.  I wouldn't call the Norse God Thor a "character" though.

It isn't just the visual appearance of the Marvel Thor that Marvel owns.  They own the specific fictional character that is called Thor that appears in various Marvel Comics that once was placed in mortal form and took the name Donald Blake and worked as a physician, and who carried a walking stick that was Mjolnir in disguise.  All those things are unique copyright eligible properties of the Marvel Character Thor, as distinguished from the historic worshiped Norse god Thor.  You can write your own story about Thor, but if he is sent to Earth by Odin and placed into the human form of a psychologist that carried an umbrella that when struck transformed into Mjolnir, I suspect you'd get your pants sued off.  And you'd probably lose.

[Vee]

I wouldn't call the Norse God Thor a "character" though.

You've obviously not been around him after a few dozen pints of mead. Great stories.

[Arcana]

You've obviously not been around him after a few dozen pints of mead. Great stories.

https://images.weserv.nl/?url=40.media.tumblr.com%2Ftumblr_me0r16Pn7z1qz7cydo5_r1_1280.png

[Ohioknight]

Emmert: There are many superheroes that use Claws.
Law-cana: But one is likely to be more well known than the others.
Emmert: Possibly.
Law-cana: When you were discussing which powers to include in City of Heroes, at any time did the discussion mention Wolverine, and whether or not customers would want to make characters like Wolverine?
Emmert: Its possible.

The claws argument would probably be their strongest.  Though if Emmert were listening to counsel, why would he testify "possibly", either he knows or he doesn't.

The key would be how big a geek Emmert is -- there are a dozen Anime/game characters that use "Wolverine-style Claws" (Geki from Streetfighter, Kaen from Shegoku Ace, Rika from Phantasy Star 2 -- all arguably derived from Wolverine -- but Wolverine's claws have evolved to resemble Anime/Manga versions also).  And the power set emulates thousands of marketed "ninja weapons" more than the style-guide claws for Wolverine (which are not blades -- blade versions are off-model).   It's not like a power set where legs (and only legs) could grow to hundreds of feet long, which is clearly limited to Stiltman.

And I'm absolutely certain that you couldn't win the argument on Super Strength being depicted as Hulk's.  The perfect counter is that Jack Kirby depicted a large number of characters with exactly those powers (including Superman) -- which leads down embarrassing roads for Marvel.

[MM3squints]

DC on the other hand has not sued because they not only understand that impersonation is the highest form of flattery, but can figure out that it's also advertisement for DC that they don't have to pay for. Even while DCUO was running parallel to city, there were tons of superman rip-offs and batman rip-offs, I'm not certain but to me it would seem that DC was allowing this because it was basically placing an advertisement for their product into a rival game.

if a company or individual wanted DC to sue, they would have to basically claim ownership of DC properties then actively try to sell them. possibly on a large enough scale for DC to care too, verses a few unofficial superman lunchboxes.

they are happy that their characters have been and continue to stay iconic symbols in the public realm.

Where are you getting this information, oh wait I really don't need to ask. Allow me to contradict that claim with this article:

http://www.newsarama.com/25310-dc-comics-sues-clothing-company-over-superman-logo.html

Date Jul 2015 (recent)

While the image on the Mad Engine shirt does not match DC's trademarked logo exactly, the complaint states that the shirt infringes on DC's intellectual property, stating "The shield design on Defendant's Infringing T-Shirt is substantially similar to DC Comics' copyrighted Shield Design. DC Comics' copyrighted Shield Design consists of a bordered five-sided shield in red and yellow, with the text inside the shield sized and positioned according to the proportions and shape of the shield. The shield design on Defendant's Infringing T-Shirt incorporates each of these elements."

DC's lawsuit claims trademark and copyright infringement, dilution, and false advertising and unfair competition under California and federal laws.

[Arcana]

The claws argument would probably be their strongest.  Though if Emmert were listening to counsel, why would he testify "possibly", either he knows or he doesn't.

He probably wouldn't, but that would just make my already hypothetical and imaginary example longer.

The key would be how big a geek Emmert is -- there are a dozen Anime/game characters that use "Wolverine-style Claws" (Geki from Streetfighter, Kaen from Shegoku Ace, Rika from Phantasy Star 2 -- all arguably derived from Wolverine -- but Wolverine's claws have evolved to resemble Anime/Manga versions also).  And the power set emulates thousands of marketed "ninja weapons" more than the style-guide claws for Wolverine (which are not blades -- blade versions are off-model).   It's not like a power set where legs (and only legs) could grow to hundreds of feet long, which is clearly limited to Stiltman.

If you try to deliberately reach, that would be useful to me at trial to portray you as obviously evasive, not even willing to acknowledge that in 2004 the most famous superhero that used metal Claws was Wolverine, and everything else was so small by comparison they would all be tied for last place.

You have to be careful when testifying in legal proceedings.  Nobody gets points for being clever, and your testimony can be used against you, and will be used against you by opposing counsel.  And juries hate overly smug defendants.  If you don't sound 100% forthcoming and truthful, that can hurt your credibility.  And in a civil trial where the burden is preponderance of evidence not proof beyond reasonable doubt, credibility is everything.

And I'm absolutely certain that you couldn't win the argument on Super Strength being depicted as Hulk's.  The perfect counter is that Jack Kirby depicted a large number of characters with exactly those powers (including Superman) -- which leads down embarrassing roads for Marvel.

True, but Marvel wouldn't have to win everywhere.  A single win anywhere would be a major victory.

[Felderburg]

What makes you think they can't?

Well, I did see character in game named "Clone of Lex Luthor" or something like that, whose description read that he wasn't Generic'd this time around because he acknowledged he was a clone or something (it's been years, the details are fuzzy).