Last week comic-book giant Marvel Entertainment sued the companies behind massively multiplayer online game City of Heroes, raising the hackles of a lot of ordinary folks.
Marvel's lawsuit, filed Nov. 10 in U.S. District Court in Los Angeles, accuses NCsoft and Cryptic Studios of designing their game – in which nearly 200,000 people play superheroes in a world where "comic books come alive" – in such a way as to knowingly allow players to fashion their characters to look like and be named after famous Marvel icons like The Hulk, Captain America and Spider-Man.
"Considering that defendants own no comic characters themselves, it stands to reason that the comic books to which they refer are those that depict the characters of Marvel and others," wrote Marvel's attorneys in the complaint. "Defendants' Creation Engine facilitates and, indeed, encourages players to create and utilize heroes that are nearly identical in name, appearance and characteristics to characters belonging to Marvel."
The complaint says that the "defendants have created, marketed, distributed and provided a host environment for a game that 'brings the world of comic books alive,' not by the creation of new or original characters but, instead, by directly, contributorily and vicariously infringing upon Marvel copyrights and trademarks."
Neither Marvel, NCsoft nor Cryptic Studios commented for this story.
But several attorneys and free-speech and fair-use advocates contacted for this story think Marvel's claims are pure fantasy.
"Asking City of Heroes to police their users to ensure that they don't replicate Marvel characters is like asking a school to police its students to make sure none of them show up for Halloween in a homemade Spider-Man costume," said Cory Doctorow, a renowned writer and advocate for free speech and fair use. "It's unreasonable bullying, and it is bad corporate citizenship."
Beth Noveck, a professor and an organizer of the recent State of Play conference, said she fears that if Marvel wins its case against NCsoft and Cryptic Studios, years of advances in technology that allows for limitless player-created content might be for naught.
"It might have a fundamental effect on the shape of video games and virtual worlds," Noveck said, "and whether they're places that are closed platforms or whether they're open platforms that allow for players' content creation."
Noveck said the danger of Marvel prevailing is that it would set a precedent under which game developers are held responsible for the behavior of their players – simply because they provided tools that could be used to create infringing content.
Marvel's suit is a first for the video-game industry, though it has not been unexpected.
"This stuff has been lurking out there," said Fred von Lohmann, a senior attorney at the Electronic Frontier Foundation.
Von Lohmann thinks that Marvel – and other content providers that might want to take action against virtual worlds whose players design potentially infringing content – needs to understand the realities of modern culture. "People are going to be appropriating these objects of culture. It comes naturally in a world that is dominated by television and trademarks.... It's hard to imagine expressing yourself without using at least some of them."
However, in its suit, Marvel makes it clear it doesn't see City of Heroes as simply giving players the ability to create infringing content. Marvel thinks the game outright steals its characters.
"'Statesman,' a character strikingly similar to Marvel's Captain America (right down to the trademark large white star on his chest and shield), prominently appears on the front of the City of Heroes box and guides the user through the 'creation' process," argues Marvel's complaint. "Defendants' infringement is so brazen that their only attempt to disguise 'Statesman' is to give him a helmet that is nearly identical to the trademark helmet worn by 'Magneto,' another of Marvel's X-Men characters."
To Noveck, the issue at hand is a battle for the future of user-created content.
"It's an attempt by one company in an industry to put a gun to the head of those who, in their view, misuse their content," she said, "and in so doing, try to reshape that industry and reshape the technology to allow for greater control of how the technology is used."
Further, Noveck said, Marvel's claims are too open-ended.
"It's the equivalent of somebody suing Microsoft Word if its users were to commit copyright infringement," she said.
To Doctorow, Marvel's suit represents nothing less than a full-scale challenge to free creative expression.
"Can you imagine a game where every tweak to your character requires sign-off from the game company's copyright and trademark lawyers?" Doctorow asked. "Marvel is supposed to be a company that stands for fun, imagination and storytelling, but this lawyer-happy thuggery is the hallmark of a Stalinist dictatorship, not a game world."
