What I would like to know then is how much it would cost me to buy back the rights to all my characters.
I just really hope that Jamaro, Doug, Manuel & any others I can't think of at the moment don't get in trouble over all this. 
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To refine a bit, there has never been a court that ruled that EULAS as a contractual presentation and assent are illegal. That is, merely because an agreement or a contract is instantiated in an electronic presentation form requiring an active button press/electronic acknowledgement is not automatically considered as invalid.
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Thanks for the clarification. I remember some people slinging questions around somewhere (Ars Technica or slashdot, maybe) asking another question, though. Since you are not presented with the terms of the EULA before opening (and in some cases installing) the software, thus voiding its returnability, can the publisher be accused of misrepresenting goods for sale? Pretty sure that most software packages don't say anything about ownership of user content on the box, and if I hadn't expected this kind of claim going in I probably would've uninstalled CoH and called Gamestop and/or NCSoft to try to get a refund when I read the EULA for the first time. (I don't think it would've bothered me in FFXI. Let's face it, the average fantasy game player-char has far less chance of becoming an exploitable piece of IP than even the lamest CoH character)
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However, the contents of a EULA can be invalidated and ruled unenforceable. It's just basic contract law. There have been many cases where a specific passage in a EULA has been invalidated or changed because of certain legal rights between the parties.
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Well, yeah--I thought this went without saying. I just wasn't aware that the courts had upheld the EULA as a valid form of contract. Regardless, I was proceeding from the assumption that every provision in the EULA was valid. After all, that's the only way the rest of the discussion matters much beyond "Anyone know a good IP and contract guy?"
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I would say MMO EULAs are pushing the very extreme edge of validity and maybe have gone overboard in some areas.
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Again, it goes back to the shareholder issue. I suspect that a company like NCSoft would rather claim, litigate and lose on a licensing issue than tell their shareholders in Korea they had a hand in the creation of that movie that just made $100M at the box office, but were afraid to assert any rights. But until such time as someone challenges this sort of agreement in court, validity is just hypothetical, right? If there were a precedent set in this kind of thing one way or the other, we'd all know it by now.[ QUOTE ]
This is just a stupid opinion of course and is not legal advice in any way shape or form and is merely for the sake of providing certain general information. 
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Of course. Your stupid opinions appear more informed than most of us, though. I was just exercising my reading comprehension, and I'm still not sure how right I wasn't.
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But now, a twist on it. What about if I don't have, like, a t-shirt press myself, and so commission a single-item run from someplace like CafePress or something?
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Won't work. CafePress makes a profit on every item they sell, even if you do not.
Summary: CP sells a shirt for, say, $12 base price. If you sell it for $12 that means you make no profit. Good! But CafePress DOES make a profit; they set the base price up so that they do and anything beyond that is for you alone.
So, it's not legal, since of the two parties involved, CP does profit. CP has a policy against using copyrighted elements in your designs for this reason.
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Oh baloney. If I hire a third party decal/T-shirt entity to silkscreen a copy of my favorite screen shot of my hero onto a T-shirt I've already bought separately, I see no copyright infringement or violation of the EULA as long as I do not intend to sell it for profit, and have retained the original screenshot for my private, not-for-profit archives.
Otherwise, where do you draw the line? I can screenshot all day and print my screenshots and post them all over my house for my personal use anytime I want. I can make demo movies all day and display them for CoX-night LAN parties as long as I am not profiting from it.
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The only reason you get away with the decal scenerio is because (for example) you printed your own heat transfer on your home printer and your shirt pressing company doesn't recognize it as copyright material. For all they know you used a design tool to create that picture and bring it to them. Actually you are placing the decal applying T-shirt place at risk along with yourself.
yes you can get away with it but by the letter of the law you are breaking it.
I've been in Commercial Arts/Graphic Design for 15 years (not as long as some but long enough to see people get burned) and frankly I still don't understand copyright law beyond what I have to know to do my job. It is screwy so you have to walk carefully. I don't agree with all the concepts I'm just telling you it doesn't seem very logical and you can be in violation of a law like that *snaps fingers*. However, I will say that a lot of it is in place to protect the artists or "creatives" if you want to use that term and that is a good thing, even if it is a little much.
If money or services are exchanged in reguards to the artwork you put up a red flag. Actually it is a bit more restricted than that but most people ignor it because they will not be noticed or pursued. That is your own ethical choice to make.
You may be able to purchase the equipment to do it all yourself and not be noticed, however if you are leasing a Canon or Xerox copier (and many others) and copying it onto heat transfer decal material, then you purchase a heat T-shirt press and press it on yourself, you STILL may be in violation of the lease with the copy company you lease the copier from because they do not want to be legally liable for copies made on their leased machine. This may even be true with equipment you purchase. You can buy a $250,000 color copies for your home, but just because you own it doesn't mean you can copy your $20 bills on it even as a joke. CoX screen caps may not be a Federal offense but it still may be an offense. ((I know I know, extreme but...))
I could go on but it just keeps getting crazier. Don't even get me started on who owns graphic design layout ideas the company who hired the designer or the designer themselves...
EDIT: had to add a 'not' to make something make sense
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This is (IMO) clearly spelled out in the EULA. Given that, Arctic Sun's warning hardly seems "too late".
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Not that Artic Sun's warning was too late, but that I (and perhaps others) already have a toon they've marketed and/or sold prior to recreating it in the COX universe.
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This is as against the EULA as you making a toon of Wolverine. It doesn't matter if you are the one who holds the copyright, you're not allowed to recreate copyrighted material inside CoX.
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What I would like to know then is how much it would cost me to buy back the rights to all my characters.
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THAT, my friends, is the real question that's at stake here. Let's get down to brass tacks.
Either NCsoft will give any and everyone rights to all their toons (it'll never happen, and they're right not to), or you can buy those rights. I'm sure that NCsoft could put together some formula that would make it profitable to sell off the rights. Geez, why haven't they done this already?!
Wait, can I patent this idea? This webforum has a timestamp doesn't it!? Crap....I need to keep my ideas to myself...
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What I would like to know then is how much it would cost me to buy back the rights to all my characters.
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Having no experience with litigation and not being a lawyer, I couldn't begin to tell you. But it probably wouldn't be cheap, since you're going to need to retain someone to negotiate for you. There'd be research and due diligence to prove you in fact created the character and assorted other legal maneuvers to cover their butts. (The really scary thing is, it'd be even MORE expensive if the claim on rights is invalid, since instead of having to draw up a contract you'd have to go to court for several months or years) You'd also almost certainly have to agree to remove all characters from the game.
However, I wouldn't be surprised if they'd flat out refuse to negotiate or sell, barring special cases. After all, doing it once would open the floodgates to more, with legal fees for them every time someone wanted to buy out their characters. They're under no obligation, and it'd probably end up costing both sides more than the objective value of the characters.
(NOTE: Once again, IANAL. I am a know-it-all who took two classes and reads lawyer blogs for fun. If anything I've said is inaccurate, then all fault lies with YOU for believing me.)
Just a FYI,
I live in Korea and let me tell you, they care little about copyright infringement over here. If you were to see how many violations go unchecked here you'd realize this is a moot arguement.
It'll be another decade before NCSoft was to really worry about this type of isse (they are more worried about a massive case of identity theft that happened in Lineage2 last month)
Assuming for argumnets' sake that simple names themselves are not copyrightable, what if you had a URL in your "in-game biography" linking to a 3rd party location where people can see that bio?
The rest of your "in-game biography" would simply say:
Go here:
http://blahblah.com/bio
Would that fall thus under Cryptic's "ownership"?
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Another twist. I'm a novelist. I'm a writer. I write novels for a living.
What if I want to write a novel of my character, or are in the middle of writing a novel and decide to remake a char in CoH/V?
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Don't do it.
Basically, Cryptic/NCsoft owns all characters/names/images that appear in CoH/CoV.
If you were a special case (say you were Warren Ellis, and you wanted to make Spider Jerusalem in the game, and you contacted Cryptic, and they gave you the nod), it might work out (and there would probably be lawyers or at least some serious paperwork involved). But those instances are nebulous and so few and far between, it's not worth risking.
Keep your CoH/CoV characters seperate from those you plan to sell, and you should be fine.
cheers,
Arctic Sun
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Technically, no game company can own a character name. Especially if a player carries that name from game to game.
It's simply unreasonable to think any game company can lay claim to any player's name they come up with. I'd also find the thought of any game company suing an author for reusing a name they created beyond ridculous. To me that is stepping beyond EULA into pettiness.
However, they more than own Positron, Lord Recluse, Manticore.. etc
Just my two cents, especially since I've certain names associated with me from another game I played. I took the names I've used in my other game and used them here as well. Both that game and NCSoft/Cryptic could try to claim they own the name. But that doesn't fly with me. It took me long enough to come up with a good name. I'll be damned if a game company tries to claim they own the name. Even more, it'd be pretty darn funny if say throughout your gaming life you've played 5 games and say 10 companies are part of those 5 games and then 10 companies try to sue you for using the name.
I can understand that it's very clearly against EULA to recreate that character in a novel utilizing archetypes, powersets, or anything else exclusively unique to CoX in combination with a name. However, I more than feel that a name is the player's.
Regardless, I do see Arctic Sun's point in that it'd be against EULA to remake the character, even if you own the copyright, unless you got higher up approval and could prove you're the author. But the point about CoX solely owning a name is really silly :P
The commission art aspect of this discussion is very important to me for reasons Im sure many of you can all understand. When I do an illustration for one of my clients I am simply using my skill and talent as an artist to put their basic idea(s) on paper or and to create a custom piece of fan art that they cant otherwise create themselves. I cant claim ownership of the character as it was presented by the client. My perspective is that the person who conceptualizes the character owns said intellectual property. Sure NCSoft claims ownership, but as someone said before thats like Microsoft claiming ownership to any works authored in Word. I think a few posters above have gone in to great detail in regard to the legal aspect of this issue so I wont attempt to go any further there. I look at the comic industry of which most of the costumes, powers, and story concepts in the COX community are derived from and question why this has even become an issue. I go to comic cons and see tons of artists doing commissions. I dont see Marvel, DC, Lucas films, or any number of other copyright holders going after commission artists. It is a part of the culture and has so many grey areas in regard to the law that it doesnt seem to make any sense for them to pursue it. As an artist that has been inspired by comics my entire life, I will not let anyone dictate what I can and cant illustrate.
I have a bit more to add in regards to what ArticSun posted, but I have to put together a little something first...
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So in other words, short version, Cryptic "owns" every single character name on *every* single server now created by players?
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Yes.
And we all knew this when we created our characters in their game.
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See if this is true, marvel and DC would have won their lawsuit against NCsoft like a year ago. Because of player name use within their game that might have been using comic concepts and names related to their intellectual property.
What is not illegal you ask? Printing your comic book character on anything is not illegal. I would also argue the fact that the character we create be our own, because we are paying 15 dollars a month to create and play and with that we arn't working for NCsoft/cryptic, and while the items and costumes could be assumed theirs, the core concept of the character will always be the players. Asking a company to print the character is not illegal (as long as its not for sale, and even then if a couple of things were different then the one you made you could get away with it).
You see NCsoft/cryptic pride themselves on their intellectual and creative property. Players characters should be their own to express, create and enjoy.
So if you plan on making any replica either keep it 1) small so not to gain attention of anyone big on your back 2) change some key aspects so that it is different from the one you created in game.
I believe in creative freedom for profit or for fun, as long as you didnt "steal" (which is basically what we are talking about, but we arent suggestion taking for example statesman and sellin it around) the concept from someone (IE statesman, manticore or DC and Marvel comics) you have the freedom to invent and be brilliant.
Nothing should get in the way of that. And if NCsoft and cryptic are a "good company of men" and women they would understand this as well, because we know how stiffled and restricted people are today, be it by government or your own peers, people should be allowed to creative with no boundries except the ones the govern our souls (IE murder and things of that nature).
*insert usual IANAL disclaimer here - they did make me study this in Art school though*
TA, Poison, et al, you shouldn't NEED to worry.
Fine Art *generally* is okay - because each piece is individually created by the artist themselves, and in most cases, enough differences exist between the finished piece and the reference material that the Artwork itself is considered to be a separate item.
That is to say, an individual WORK of art can be copyrighted as itself, even if it depicts the same source material as a different work of art, as long as there are enough differences between the two. Two landscape artists can paint the same pier, on the same day, with the same type of paint, and the two works (while very similar) are considered two totally separate works of art.
In a similar vein, an artist at a comic convention can sell a "fan sketch" of, say, Superman, without getting into trouble - because it's their own interpretation of the source material, and different from every other Superman sketch ever done. That comic artist only gets into trouble if they a) plagiarize another artist's work, or b) DC decides they've infringed on the Superman (TM)trademark. But the sketch itself can't be siezed, because it's not DC's property.
That said, trademark infringement is tough, and some images ARE trademarked - the image of Godzilla, for instance, really really can't be used commercially without Toei's blessing, and they zealously enforce it - but unless you're tapping a trademarked character, you should be okay.
So Poison and GillBates and Darkjedi SHOULD be well within Cryptic's tolerance - they're not taking Cryptic's characters and mass-producing their likenesses for profit, they're creating individual works of art for their clients - who then turn right around and proudly display them to the community, fulfilling the "fan fiction" clause of the EULA.
(edit: clarity of nounage)
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2) Character name & history - technically the character names/history that you create for CoH/CoV are owned by Cryptic/NCsoft. You can use them in fanfiction, etc., but you cannot profit from them.
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History, only the specific parts tied into the CoX world. Name, no. Sorry, Cryptic doesn't get ownership of a character's name that a player created. Cryptic would have no legal standing against me if I took a character I created in CoX and re-wrote his/her history to make it independant of the CoX world and wrote a book about him/her. Cryptic doesn't own the character concept, just the specific incarnation of it within their game.
Virtue Server
Avatar art by Daggerpoint
What cannot be trademarked.
What cannot be copyrighted.
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Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents.
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IANAL (I am not a lawyer), but the Official Government sites related to this back this up to the letter. You can trademark a name, which is a legal process different than copyright. Copyright = I create a copyrightable work, publish it, and the copyright is mine. Period. Trademarks require you to register them with the government for a fee for the protection. Based on all this (correct me if I'm wrong) *names* period, end of story, per the US Government, cannot be "copyrighted". Now...
COH EULA
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(c) Member Content. Members can upload to and create content on our servers in various forms, such as in selections you make and characters and items you create for the Game(s), and in bulletin boards and similar user-to-user areas (Member Content). By submitting Member Content to or creating Member Content on any area of the Service, you acknowledge and agree that such Member Content is the sole property of NC Interactive. To the extent that NC Interactive cannot claim exclusive rights in Member Content by operation of law, you hereby grant (or you warrant that the owner of such Member Content has expressly granted) to NC Interactive and its related Game Content Providers a non-exclusive, universal, perpetual, irrevocable, royalty-free, sublicenseable right to exercise all rights of any kind or nature associated with such Member Content, and all ancillary and subsidiary rights thereto, in any languages and media now known or not currently known. You shall indemnify and hold NC Interactive and its affiliates harmless from and against any claims by third parties that your Member Content infringes upon, violates or misappropriates any of their intellectual property or proprietary rights.
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Note the bolded bit. Still, IANAL, but it seems like Cryptic put this bit in as their "don't sue us for infringement" fail safe. They claim that they own *EVERYTHING* you see in-game based on this. We forfeit any and all rights based on this. If it's not theirs, they can see it can't be in-game, and thus they remove it. That's been said but I don't think anyone tried to simply spell this out.
Now...
...the only question is the legality of such a provision and/or the enforceability of an EULA like this based on a clickthrough with no actual physical contract or signing away of my rights to Cryptic/NCSoft etc. But again, IANAL. And no one should bother asking Cryptic to comment on that here. If they said "well we don't *really* own it, it's just a C-Y-A provision" they open themselves to even more problems. No one will know for sure unless push came to shove and someone tried to market/publish/profit off their character they created and/or used in the game, and *if* Cryptic went after them for it.
If they use *anything* that appears in the context of the Cryptic "work", they're screwed, Cryptic wins. If I somehow got Image Comics to publish a comic about my heroe's battle that features his origin in Terra Volta, or if Random House publishes a detective novel that features Marcus Cole, I'm screwed.
If I get Image to publish a comic book called Electro Kid, and I made Electro Kid "in-game"... but use *NOTHING* from Cryptic--no Paragon, no nothing from the CoX content--*and* they come after me... that's the real challenge that all this has any relevance to. As far as I can see, but IANAL.
It would be certainly nice for someone from Cryptic to officially address this, but even if they can--and they likely should be *able* to--it would I'm sure need to be vetted past their legal people before CuppaJo could post anything official.
Still, it would be nice for all things to be clarified for our protection... and for the protection of NCSoft, and Cryptic Studios.
Well, I just emailed the EFF about this discussion, and I hope to see a response from them at some point. I'll post again if they email me back.
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So in other words, short version, Cryptic "owns" every single character name on *every* single server now created by players?
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Yes.
And we all knew this when we created our characters in their game.
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See if this is true, marvel and DC would have won their lawsuit against NCsoft like a year ago.
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Incorrect. The ruling wasn't that the copyright violations didn't exist, they won because they aren't liable for copyright violations made by their users. They demonstrated that they make every attempt to prevent copyright violations in-game.
Actually the way I always read it, the intent was for it to be mutually beneficial.
I am not a lawyer either (though I have taken pre-law classes.. that and about 2 bucks'll buy me a cup of coffee) but a lot of other venues utilize a similar agreement.
Now, correct me if I'm wrong, but basically the way it ideally plays out it's to protect both them, and us, from copyright infringement.
Say, Bob work for some other game/comic company, and good ol' Bob run across the Electro Kid from your example. He likes it and then takes it and uses it in Bob's project. Cryptic has the rights that you gave them in the EULA to pursue a lawsuit against such material because there is precident of its existance prior to Bob's useage of it. In this way, your creations are protected.
Likewise, should they decide to take screenshots to show investors, or create a demo to show at an expo of your characters in action (like a big montage of something in Atlas Park, for example) then they have the right to use your creation and likeness to do that as well. It would be near impossible to locate every single person that was hanging out in Atlas that day to find and get their permission to use their character in a demo of some kind.. In that respect, it protects them.
Now the limits of the EULA haven't really been tested, because Cryptic nor NCSoft have pursued anything in that regard, which they reserve the right to. Fan art and commisioned work has been displayed and advertized on these very forums. Their "approval" of such usage is displayed by allowing such posts to exist, and a lack of litigation on their part. Doing so would harm both parties; as their rights would be brought into question, costing them tons of money for the lawsuit and for whatever changes may need to be made to the EULA contract as a product of that (and believe me, that's it's own mess that I'm sure they want to avoid)- and the fanbase, which would be seen as a betrayal of trust due to the "spirit" of the genre. As someone said, fan art and such is a part of the culture... they would cross that at their own risk.
The only real problems that may occur as a by-product of the EULA is if someone uses "content" to make a profit. Now here is where it gets a little fuzzy. Content is the key word here.
On one hand, you have their content. Anything that's specifically "theirs" (areas of the city, villain groups, game specific terms like "he's a Blaster" intimating their AT system,etc) do belong specifically to them. Using such is an open and shut case. If someone used someone else's character background or concept without that individual's permission.. again, open and shut.
Using your own material, and I mean only that which is yours, not incorporating any aspect of the CoH universe as stated above (including any AT specific terms or even the names of the attacks used in game) I doubt they would seek legal action. Again, it is your own work. It would likely be too much of a hassle to pursue, and too difficult to claim in court. Plus, again, it goes against what I think the "spirit" of the EULA was designed to protect. Of course, I could be overly optimistic. I just honestly don't think they created this game to steal our ideas for their own use at our expense.
If, like in a previous example, someone had sole legal rights to a character in trademark and copyright and reproduced that character in CoX, so long as they didn't pursue a lawsuit against Cryptic for actually allowing them to make that character, or if NCSoft used that character (image, info, name etc.) that is existant in the game in whatever manner they wished, then I doubt they'd press the issue. However, that is, again, part of the "spirit" of the deal, as it were.
The really fuzzy part comes with the actual image of the character. Since each costume piece is considered copyrighted art (and it rightly should be, as their graphic artists designed each piece) using that costume whole, or in part, could be considered grounds for suit. However, much of it is "common" imagery. A glove is a glove is a glove, right? So long as care is taken to alter the costume in a way that makes it different from what can be created with the system, changing logos and patterns (like the chest designs, or the cape and costume patterns) utilizing more colors in a design than the costume creator itself allows (3 colors on a cape, for instance, where the creator only allows for 2) and through other such methods seperate it from the source material to make it something unique, then it becomes your own work.
On that note actually, there's also room for "derivative" works as well, which is what basically was at the core of the Marvel case, and why it didn't go through.
Something inspired by something else is also okay, so long as there is enough difference in the derivation to say that it was not copied from that source, but inspired by it. CoX was inspired by the super hero genre and the comic culture surrounding it. These elements exist within the realm of Marvel Comics (and of course others) but the CoX universe is a unique entity, with its own history and culture, heroes and villains- all of which was inspired by its predecessors in this derivative work that is CoX, but identifiably unique in and of itself.
I personally would suggest if someone decided to make a "for profit" venture utilizing a character of their own creation currently existant in CoX, and the above guidelines are observed, that it would also probably be appropriate to delete the character. That should remove any claim they might have, as it would no longer be "content" within their realm. All previous images or whatever they may have gathered about that particular character would still be "theirs" as it existed as "content" within their game, so if they show a picture of that character that you have since deleted and copyrighted/trademarked etc. they still have your permission from when you agreed to the EULA and made the character. Again, both their, and your, rights are protected.
That's how I understood it to mean anyway... for what it's worth
"I play characters. I have to have a very strong visual appearance, backstory, name, etc. to get involved with a character, otherwise I simply won't play it very long. I'm not an RPer by any stretch of the imagination, but character concept is very important for me."- Back Alley Brawler
I couldn't agree more.
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Another twist. I'm a novelist. I'm a writer. I write novels for a living.
What if I want to write a novel of my character, or are in the middle of writing a novel and decide to remake a char in CoH/V?
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Don't do it.
Basically, Cryptic/NCsoft owns all characters/names/images that appear in CoH/CoV.
If you were a special case (say you were Warren Ellis, and you wanted to make Spider Jerusalem in the game, and you contacted Cryptic, and they gave you the nod), it might work out (and there would probably be lawyers or at least some serious paperwork involved). But those instances are nebulous and so few and far between, it's not worth risking.
Keep your CoH/CoV characters seperate from those you plan to sell, and you should be fine.
cheers,
Arctic Sun
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Well shucks... already made one with the name of a character from a short story I wrote and had published. Where does that leave us?
CatMan - some form on every server
Always here, there, and there again.
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Incorrect. The ruling wasn't that the copyright violations didn't exist, they won because they aren't liable for copyright violations made by their users. They demonstrated that they make every attempt to prevent copyright violations in-game.
[/ QUOTE ]Quite correct. Using their "content" to violate copyrighted/trademarked material is right out. This too, is part of that section of the EULA.
"I play characters. I have to have a very strong visual appearance, backstory, name, etc. to get involved with a character, otherwise I simply won't play it very long. I'm not an RPer by any stretch of the imagination, but character concept is very important for me."- Back Alley Brawler
I couldn't agree more.
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Another twist. I'm a novelist. I'm a writer. I write novels for a living.
What if I want to write a novel of my character, or are in the middle of writing a novel and decide to remake a char in CoH/V?
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Don't do it.
Basically, Cryptic/NCsoft owns all characters/names/images that appear in CoH/CoV.
If you were a special case (say you were Warren Ellis, and you wanted to make Spider Jerusalem in the game, and you contacted Cryptic, and they gave you the nod), it might work out (and there would probably be lawyers or at least some serious paperwork involved). But those instances are nebulous and so few and far between, it's not worth risking.
Keep your CoH/CoV characters seperate from those you plan to sell, and you should be fine.
cheers,
Arctic Sun
[/ QUOTE ]Would keeping them seperate include deleting one that was existant in CoX prior to copyrighting/trademarking?
As I said above, the implication of the EULA is with "content". If we remove that "content" by deleting that character, would that not remove any liablity from either side? So long as they observed the seperation of the games specific content and images (Hero/Villain groups, city/world history, zones, specific power names, etc.) from your end, and accepted that all of that character's images previously existant from when that character was on the servers would still be considered your "content," would you guys press the issue and try to claim ownership over whatever became of it after it was deleted off your servers?
I can agree that everything up to that point is considered "content" within CoX, and subject to the EULA, but after it is removed by the user?
"I play characters. I have to have a very strong visual appearance, backstory, name, etc. to get involved with a character, otherwise I simply won't play it very long. I'm not an RPer by any stretch of the imagination, but character concept is very important for me."- Back Alley Brawler
I couldn't agree more.
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Another twist. I'm a novelist. I'm a writer. I write novels for a living.
What if I want to write a novel of my character, or are in the middle of writing a novel and decide to remake a char in CoH/V?
[/ QUOTE ]
Don't do it.
Basically, Cryptic/NCsoft owns all characters/names/images that appear in CoH/CoV.
If you were a special case (say you were Warren Ellis, and you wanted to make Spider Jerusalem in the game, and you contacted Cryptic, and they gave you the nod), it might work out (and there would probably be lawyers or at least some serious paperwork involved). But those instances are nebulous and so few and far between, it's not worth risking.
Keep your CoH/CoV characters seperate from those you plan to sell, and you should be fine.
cheers,
Arctic Sun
[/ QUOTE ]Would keeping them seperate include deleting one that was existant in CoX prior to copyrighting/trademarking?
As I said above, the implication of the EULA is with "content". If we remove that "content" by deleting that character, would that not remove any liablity from either side? So long as they observed the seperation of the games specific content and images (Hero/Villain groups, city/world history, zones, specific power names, etc.) from your end, and accepted that all of that character's images previously existant from when that character was on the servers would still be considered your "content," would you guys press the issue and try to claim ownership over whatever became of it after it was deleted off your servers?
I can agree that everything up to that point is considered "content" within CoX, and subject to the EULA, but after it is removed by the user?
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I think the more this is read the implication that Cryptic intends tp keep them "forever" is bad form, possibly not legal, and just outright rude to it's client base.
A more appropriate revision would be something that states that "While they exist in the game, we reserve rights to use them. Deletion of character content by players returns full rights immediately to the player/client, but we reserve the right to use their content's likeness for promo materials afterwards, blah blah."
So, make a toon: they can use it at will while it's there.
Delete said toon: the name, story (your own content only), basic non-cryptic likness is fully yours, but they reserve rights to play with it later.
This would assure players and guarantee to them that they retain their content, in the end of the show, whilst also fully protecting Cryptic.
Anyone else agree?
While it would be nice, I kind of wonder whether it would be worth the time and expense to get a lawyer to come up with an altered EULA for Cryptic.
First of all, the only thing you are really risking (IMHO) is that the character might be genericed. Annoying, but much less problem than changing the EULA.
There is the tiny possiblity that one of your characters might become wildly popular and worth millions somehow, and that Cryptic might ask you for some of the money. But you can avoid that, by simply altering the name and appearance of the character before using it for profit in the future. Much cheaper than hiring a lawyer, for both you and Cryptic.
Due to the Marvel lawsuit, Sean "Manticore" Fish changed the name of the character Bastion to Citadel. Did Marvel think of the name Bastion first? Who knows? For all I know, Sean thought the name up in High School, possibly decades before the Marvel Character showed up. But I bet Marvel legally protected it first.
Manticore dealt with it in a mature and professional manner (or so it seems, he could have thrown furniture around the office for all I know), and I suggest we do likewise.
Story Arcs I created:
Every Rose: (#17702) Villainous vs Legacy Chain. Forget Arachnos, join the CoT!
Cosplay Madness!: (#3643) Neutral vs Custom Foes. Heroes at a pop culture convention!
Kiss Hello Goodbye: (#156389) Heroic vs Custom Foes. Film Noir/Hardboiled detective adventure!
Regarding the question of commissioning artists...
Generally speaking, what you pay for when you commission an artist is the *service*-- the ability to create fanart, and the artwork itself, NOT the *content* of the artwork. You pay for time, and expertise, NOT for the character portrayed. So it isn't CoX content that is being sold, simply the ability to render the art.
Now... there are plenty of areas this could fall into problems. If, for instance, you commission an artist to develop a NEW character for use in your comic book, and that artist uses the CoX character creator to come up with the design, and then draws it, the artist, at least, is in trouble, and possibly the client. Because NCSoft own the costume designs as they appear in CoX, etc, etc. If you commission an artist and then sell prints of the work, you're in a whole lot of trouble, both from NCSoft and the artist(you're then infringing on the CoX-specific content *and* the service the artist provided). If you commission an artist and they, say, drop a screenshot in as a background, or use a screenshot and just run it through a filter, then the artist is in trouble, having profitted from stuff that NCSoft very specifically owns.
Similarly, a writer can, I believe, get away with writing, say, a novel for publication about a character they used in CoX, *provided* they remove ALL CoX-specific material from background, setting, descriptions, etc, etc. Paragon City? No, it doesn't exist outside of CoX. States and company? Nope. Rikti Invasion? Nope. WW2? Fine. Rogue Isles? Nope. Powers described to work exactly as they do in-game? No. Generic ability to wield and manipulate fire? Sure. A gang of homeless guys that turn people into aliens? Very-crossing-the-line, I'd argue No, too close to CoX-specific content. Invasion by a hyperintelligent shade of the color blue? No, but not because of CoX content. A location that could be said to describe Atlas Park down to details? No, even without mention of Atlas park by name.
I think people can get the idea. As I understand it, the legalese of the EULA and all that essentially protects two things: 1. The work that Cryptic has put into CoX from being theived. This includes specific elements of character creation, setting, locations, the "look" of places, etcetera. 2. Copyrighted material belonging to other companies from being theived and replicated into CoX.
Commissioned artwork doesn't really fit into this, though it's a grey area. You don't, generally, profit from having the artwork done(or you shouldn't be), and the artist isn't selling the content of the work, but the time and effort to do the work, and the expertise. As long as that's clear, I would think that NCSoft should have no complaints. It's the difference between paying for personal *fanart* to be made, and paying for unlicensed merchandise. Most commissions around here are a *service*, not *merchandise*. If I do commissions for fanart of people's characters, this *should* be permissable. However, if I sell *prints* of my CoX fanart for profit, I am in BIG trouble with NCSoft. But all I'm doing as a commissioned fanartist, generally speaking, is selling my drawing talent. Which NCSoft doesn't own. The question comes down to what the end product is being used for and how much CoX there is in it.
I think part of the reason the T-shirt is problematic is that many companies like Cafe Press that do those services are set up with the implication of merchandise. IIRC, even if you don't intend to sell multiple copies of a T-shirt, that is what their business is set up to do, and thus the legal problems with ownerships *really* start coming in.
To refine a bit, there has never been a court that ruled that EULAS as a contractual presentation and assent are illegal. That is, merely because an agreement or a contract is instantiated in an electronic presentation form requiring an active button press/electronic acknowledgement is not automatically considered as invalid.
However, the contents of a EULA can be invalidated and ruled unenforceable. It's just basic contract law. There have been many cases where a specific passage in a EULA has been invalidated or changed because of certain legal rights between the parties.
I would say MMO EULAs are pushing the very extreme edge of validity and maybe have gone overboard in some areas. This is just a stupid opinion of course and is not legal advice in any way shape or form and is merely for the sake of providing certain general information.