COH Mythbusters

This case actually wouldn't apply here at all, since the artwork in the game is the only thing where copyright is in question, and that clearly belongs to NCSoft. You're using their art with their permission to create a specific derivative design. In the Marvel case it was the artists who made the artwork vs the company that held them. This would be like Jay vs NCSoft, for example, to use his particular digital art in another form, but would not apply to customers licensing the artwork which is NCSoft's (and possibly Jay Dougherty's) property.

Copyright in this case would apply only to any bits of biography or background that you type into the system for your character. Nothing else is protected under copyright since you cannot copyright a design nor a name, but only a unique non-derivative work.

Any characters you want to assert ownership of such as by name or the design of their costume would be under trademark law.

Originally Posted by eltonio This is over the top mental slavery.

One thing I feel is certain is that even if NCSoft could claim IP ownership over your creations, they wouldn't go after somebody unless they thought it would be extremely profitable. As going after an individual over something like this would be a PR nightmare as the backlash could be enormous.

Some Scrappers can tank, just not as well. Your use of may is alright as tanking GMs and Lord Recluse, by some peoples scrappers, gets done.

That's probably true. The EULA is designed to protect NCSoft from lawsuits rather than any attempt to make a grab for someone's IP.

Originally Posted by eltonio This is over the top mental slavery.

I doubt your request would be honored. Presumably, the only reason they'd shut the game down is because they ran out of money. If so, then all that IP would be one of the few valuable assets left; I doubt any corporation would just scrap it.

Character data is likely worthless. No corporation is going to auction off the character "xXxCatgirlxXx" to anyone for anything of value. If the game were canceled, the odds are the DB servers would be disposed of. No one is going to datawarehouse a bunch of player character data. It wouldn't be worth the costs.

Originally Posted by eltonio This is over the top mental slavery.

The data, probably. The servers themselves, unlikely. Servers are easy to repurpose

Well it does often feel as if I get less Defense from 4 Lucks than I do from 3.

Heck, I've seen someone hit Kronos Titan with Blackhole as well (the Monster version, not the Giant Monster). Happened entirely by accident, he was trying to phase shift all the Malta surrounding him instead.

Real fact: a pair of scrappers/tanks or brutes splitting up can duo this mish in 3-4 mins. If they are faceplanting, they need more skill or build.

Probably just my luck that I always end up teamed with the scrappers whose bark is bigger than their bite

You cannot copyright a name alone, but you can copyright a character design which includes a name as a feature of the character.

How I assemble the costume artwork is considered a separate protectable design. That is why NCSoft specifically requests non-exclusive license to it: without that license they could not use my character design even if they own the individual artwork components that comprise it.

In any event, I mentioned that case not as a case that would be operative in determining copyright ownership, but as an example of author rights separate from copyright ownership, since some suggested that there was no such thing (the preface to the citation states this directly).

In terms of cases that might be specifically relevant to the issue of whether or not a player actually owns their characters, separate from any intellectual property components they might have incorporated into them, try:

In Dumas v. Gommerman the Ninth Circuit Court of Appeals asks and answers the question of what is required to be considered a work for hire under copyright law post 1976. In particular it lays out the history of the Copyright Act and the intent of the provisions of the act with regard to defining work for hire and the protections afforded content creators. I recommend those not familiar with copyright law to read the thought process laid out in the decision; its an excellent summary of how the various laws interact.

Both that case and Community For Creative Non-Violence v. Reid address the issue of whether its reasonable to consider players work for hire when creating their characters. Indirectly, they also state the requirement that copyright transfer must be written and signed by the original owner or author.

Now, is it possible to argue that the EULA supercedes the requirements of section 204 of the copyright act? Almost certainly not: courts have held that the intent of section 204 isn't a formality, such that something like an EULA could substitute for it. The intent of 204 is to protect authors from giving their rights away, *and* forcing others to negotiate with authors. See Effects v Cohen:

(emphasis mine)

It would be impossible to argue that the EULA creates the same environment intended by section 204, and in the absence of that courts would - and do - uphold the literal requirements of the law: that copyright transfer must be signed and in writing. Effects v Cohen goes so far as to say that it doesn't matter if an industry operates by a consistent mutually agreed upon standard that differs from copyright law: neither custom nor alternate contractual context supercede the law. In fact, court decisions and legal analysis consistently state that the *intent* of the law was to eliminate these types of options, specifically to eliminate questions about authorship. If the argument is being made that the EULA is asking for my copyrights in exchange for the privilege of paying to subscribe to the game, any intellectual property attorney will tell you that the 1976 act was explicitly intended to eliminate that type of deal-making. The 1976 act makes that form of agreement illegal to protect me from people who would try to make me agree to it. This isn't just guesswork: its a very explicit intent of the law (see the cases above).

One more for the road; this time a case a few more readers might have heard of, that both cites and then amplifies Cohen above:

SCO v Novell


It was mentioned above that perhaps NCSoft only asserts copyright on characters *created* with the game client: that if a professional author previously created a character it is protected by copyright, but if its first created in the game then it doesn't have "prior protection" and NCSoft can then assert ownership of it.

This was only true prior to 1976. Prior to 1976, the legal theory could be made that a player making a character in CoX could choose not to copyright the character, and then allow NCSoft as the publisher of the content to copyright the character instead, by mutual agreement. In fact, some state courts held this to be perfectly valid under the copyright laws of the time. After 1976, this legal theory becomes immediately invalid. After 1976, authors aren't required to copyright their works by overt act (such as publication or registration). The law recognizes them as owning the copyright on their creations immediately upon creation. In fact the law goes further and states that authors own the copyrights on their work during the process of creation. Because of that, NCSoft cannot ask me to forgo copyright protection: the law gives it to me whether I want it or not. The moment that happens, whether the character existed prior to me playing the game or not becomes irrelevant: in both cases copyright protection extends to me as the author first. NCSoft must now take it from me in either case: the law doesn't distinguish those two cases.


So far, I haven't heard anyone mention the "best" legal angle NCSoft would have to attempt to assert ownership of my characters, at least to the extent of preventing me from using them in commercial ventures, which I guess tells me no IP lawyers in the house. Attempting to assert the EULA automatically grants them ownership has zero chance of working. Zero point zero zero chance. Attempting to assert the characters are work for hire creations has an only infinitesmal chance of working: it probably has a better chance of being considered frivolous and subject to claim of attorney fees and court costs.

But the angle I think (and the intellectual property lawyers I've chatted with seem to think) has the best chance of succeeding (meaning: its better than 1%, but not great) is the argument that my characters are a joint creation where both myself and NCSoft are the joint legal authors. The problem with this argument is that joint authorship requires certain conditions and considerations which are very unlikely to be seen as occuring in CoX (or most MMOs). Basically, there is no consideration for me in this equation: I have no special rights to NCSoft's "contribution" to my characters separate from the one I'm presumably granting to my contribution, and there is no shared direction or artistic control. The relationship is so one-sided in terms of artistic contribution (I do all the work, NCSoft offers nothing in exchange except usage of its tools) that this would be a very difficult assertion to demonstrate.

If I were an attorney and was asked to pursue this sort of claim, this is the angle I would take. And I would give myself about a 2% chance of surviving summary judgement against me. And a one in a thousand chance of winning at trial, unless opposing counsel is a moron and the presiding judge is sniffing glue. And I don't think this has any chance of surviving appeal at all, unless the appellate courts feel like making new law that day.

Well, if you upgraded the graphics engine to something that looked better but only ran on cutting-edge hardware...

Fact: If you are the one taking the alpha from a spawn at level 35+ on a Traps character, you're doing it wrong. Maybe, just maybe, that's true with Devices, but I can think of 3 other powers in Traps, all available earlier than Trip Mine, which take care of the alpha for you and allow you to toebomb in near-complete safety.

Originally Posted by PleaseRecycle it has gone from unconscionable to downright appalling that we have no way of measuring our characters' wetness.

Originally Posted by Brillig It's hard to beat the entertainment value of Whackjob Wednesdays.

Thanks to a really boneheaded decision from the Tenth Circuit Court of Appeals, Novell has had to file for an en banc review to get this confirmed. The Tenth Circuit panel that SCO appealed to ordered a jury trial to determine if the vague maunderings of the contract somehow conveyed unspecified copyrights--which is flatly contradictory to the letter of the law and to established law from every other circuit that has touched the subject. If the Tenth doesn't overturn that on review, it could well go to the Supreme Court. Such foolishness can't be allowed to stand.

IOs are not necessary, but they are more cost efficient and convenient.


IOs would only be neccessary if:

a) the game revolved around PvP

AND

b) everybody else had all IOs

Note that I said "and" not "or". The fact that player A is able to kill a mob in 2.5 seconds compared to your 3.5 seconds or that they are able to take on 3 more mobs than you are is not something that equates with need.

Now, if you are unable to defeat a -1, x1 mission without IOs, that would be proof that IOs are needed. However, I think it was clear that even SOs give you more power than you really need to beat most missions.

Exactly, sounds like someone forgot to take Seeker Drones.

This is exactly what the EULA says. Stop thinking in terms of "what makes sense." That's opinion. The actual wording of the EULA is fact.

I think that's a fair assessment. I'd be extremely surprised if third-party contributions didn't fall under a different agreement, very likely one that you and I aren't privy to. So far, the only "guest author" that I know of is Rooster Teeth, who already has agreements in place with NCsoft, with a character ("Captain Dynamic") designed specifically for promotion of the game.

No, it's not. Intellectual property changes hands all the time. There are many cases of someone creating something and then losing the rights to it for various reasons, most often because they were stupid and didn't know what it was worth at the time.

I'm not arguing over this any more. It's not rocket science.

If anyone wants to fight this out in court, have at it. You're a lot richer than I am, and how you waste money is your prerogative.

Depends on how old they are. These days, anything more than 3-5 years old is generally disposed of. The TCO is too high to pay for extended maintenance.

But yes, I primarily meant the data.

Originally Posted by eltonio This is over the top mental slavery.

No, actually you cannot. You can TRADEMARK that. But you cannot copyright it. Only an actual specific work can be copyrighted.

NCsoft doesn't use the term copyright, but rather "Trademark right, copyright, or other proprietary right" as a catch all phrase (since IP law is indeed so very complex). It isn't implying that you have a copyright to your character. You don't. Because you don't have a copyright to the artwork. That artwork, no matter how it is assembled, is copyright NC Soft.

By making a character in the Character Creator using their art, you're effectively making a Collage. Collages are Derivative Works and are NOT protected by copyright. If you're using someone else's artwork to create a work, you own absolutely no part of that. That's derrivation. You need a License to do that (such as the EULA) and are restricted to the terms of that license for use of that art.

Copyright protects a WORK (a picture, a photograph, some text, software code)
Trademark protects a DESIGN/Name (a "look", a word using in a specific context, an emblem, a logo)

This is an important distinction.

Again, if you draw a picture of your character with all original art, you own the copyright on that picture. If you make a character in the character creator and take a screen shot of it, you do NOT own that picture. Even if you assert a trademark on the design.

You're again still confounding copyright and trademark law. The case you cite has no bearing here since any particular character, aside from written descriptions in the biography would only be disputable from a trademark perspective, not a copyright one and trademark law is an entirely separate and different body of law from copyright law. They aren't the same thing. They're entirely separate legal codes.

For example, if I come out with my own Superman comic book, If the writing and artwork is done by me, I am not violating anyone's copyright. I am, however, violating DC Comics' trademarks. If I make a copy of a superman comic book, or re-use the artwork or writing from one and put it in my own, NOW I am violating a copyright. If I make a collage of "Super-Heroes" and cut bits from a bunch of comics and paste them together, that's a derivative work and I have zero copyright over that collage unless I have a license to use that artwork in this fashion, in which case I have whatever rights the license grants me. Depending on what bits I've cut out, I may also be violating trademarks with my collage as well.

Originally Posted by eltonio This is over the top mental slavery.

Actually flash arrow generates no aggro at all.
You can hit a spawn with flash arrow and it won't even attack.

Myth: Getting aggro as an MM will get you killed, because you're squishy

Fact: with Bodyguard Mode on, pulling mobs onto you is a legitimate way to tank with an MM.

Originally Posted by eltonio This is over the top mental slavery.