Like characters based off of other licenses they are technically a copyright violation and NCSoft could get sued if it was bought to the attention of the copyright holder. The problem that when you publish an arc everything in it becomes the property of NCSoft and they are, technically, distributing it for money. So if the arc contains content that infringes someones copyright then NCSoft is illegally distributing derivative versions of the material.
Right, which is an issue if the IP owners contact them and say, "Remove this." My question is, will NCSoft pre-emptively remove this when they're notified of it? Or do they tend to let it slide? Has anyone had an arc of theirs removed for copyright reasons?
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I'd imagine if it's reported they'll remove it straight away. They are pretty proactive on characters so don't see why this would be any different.
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Originally Posted by nunix
Right, which is an issue if the IP owners contact them and say, "Remove this." My question is, will NCSoft pre-emptively remove this when they're notified of it? Or do they tend to let it slide? Has anyone had an arc of theirs removed for copyright reasons?
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Mm, alright. That's too bad. =/
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I can't recall ever hearing of any specific instances where they did this but I strongly suspect they do. If they did get sued and the IP owner could demonstrate that they had been notified about the arc and had ignored it then it would make it a lot harder for them to defend themselves. They generic any characters who are even potentially infringing on copyright just to be safe.
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Originally Posted by nunix
Right, which is an issue if the IP owners contact them and say, "Remove this." My question is, will NCSoft pre-emptively remove this when they're notified of it? Or do they tend to let it slide? Has anyone had an arc of theirs removed for copyright reasons?
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Reasonably certain that if it's derivative work - ie, 'inspired by,' then you're safe. As is public domain stuff. But if the contact is Superman, who's trying to get you to help recover the kryptonite ring Lex Luthor has... yeah, that's not good.
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It really depends on the specifics. If you are copying an existing in-copyright story using all the same character names, same events, same plot, etc., then you are plagiarizing and guilty of copyright violation.|
Originally Posted by Talen Lee
Reasonably certain that if it's derivative work - ie, 'inspired by,' then you're safe. As is public domain stuff. But if the contact is Superman, who's trying to get you to help recover the kryptonite ring Lex Luthor has... yeah, that's not good.
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However, if you change the names of the characters, shift around events, put it in a different place, add your own plot points, then you may be in the clear if it is different enough. But that's often a difficult sell in the courts. When they made the movie Nosferatu they originally wanted to film Bram Stoker's Dracula. They tried to get his estate's approval but that didn't work out. So they changed some stuff around. Stoker's estate sued and won. Nearly every copy of the film was destroyed.
If a literary work is out of copyright (I think anything before 1920 or so is now out of copyright), then it is in the public domain and is fair game. This is why Alan Moore could use Mina Murray, Allan Quatermain, Edward Hyde and Captain Nemo in The League of Extraordinary Gentlemen.
NCSoft doesn't want to mess around with getting sued, so if you're using any names from copyrighted works it's in their best interests to remove your arc.
Lawyers Are Expensive, GMs Are Cheap
Unfortunately, it's too expensive for NCI to hire intellectual property attorneys for hourly game master duties. This means the EULA has to carry an extremely simplified definition of third-party rights violations, which by necessity errs on the broad side, not the narrow.
Think of a Venn diagram with a small circle for "copyright infringement under U.S. law" and a large dotted-line circle all around it for "third-party rights based EULA violation". The dotted-line shows that the boundary for EULA violations is indistinct, for complex reasons that I'll just lightly touch on below.
The One-Eyed Man Is King
Instead, the copyright enforcement we see is molded by what GMs -- who receive some training and guidance, but are not intellectual property or contract lawyers -- think what the EULA says and which rights holders are likely to sue, NCI's DMCA safe harbor status notwithstanding. Also, since the enforcement is dependent on player reports, it's molded by what the player base -- who are definitely not lawyers -- think what copyright law and the EULA says.
So we see inconsistent enforcement. Having a Superman costume and character is immediately seen by the player base as a EULA violation. Making a gentle parody of Playboy magazine, even with a (poor) celebrity likeness and critter costumes similar to a registered trademarked service uniform, as a 1-mission MA story arc, is not seen as a EULA violation.
The Superman avatar seems to be inside the dotted line, the Playboy mission seems to be outside it, and it's anyone's guess why. Maybe players think comic books are entitled to greater rights protection than adult magazines (wrong), or that one publisher is more likely to sue than the other (wrong), or that a player avatar is more likely to be a rights infringement than an MA arc (wrong).
Your Next Steps
Because it's tougher to predict enforcement based on the player base's wrong ideas, there are only two feasible ways you, as a content creator, can figure out where the boundaries lie.
1) Look around at what other arcs have done, as far as tributes, parodies, etc. If they've been around a long time, that's a good indication they're not seen as EULA violations by the playerbase and/or the GMs.
2) Test the boundaries yourself. Best case scenario, your arc will be just fine, along with the many other tributes and parodies already published. Worst case scenario, the GMs will let you go through a re-edit/re-publish process if they see anything they don't like.
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To my knowledge, DMCA takedown demands have never happened in this game, except for when Marvel's lawyers were trolling for evidence leading up to the Marvel v. NCSoft lawsuit. Please correct me if you're informed otherwise!|
Originally Posted by nunix
if the IP owners contact them and say, "Remove this."
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If it does happen, NCI is a registered service provider under the United States federal law called DMCA, and will probably be best off abiding by the DMCA to preserve their safe harbor status. This means that NCI should take down the content in question, give you notice of the takedown, allow you to make a "sue me or shut up" counternotice to the rights holder, then restore your content upon receipt of the counternotice. You have access to this complete procedure even if you're not a U.S. person.
What's the policy on these? I played a couple of fun arcs this morning based off a literary series, and while I'd love to share and talk about them (and brainstorm for more), I'd hate to get them noticed and then removed for "content violations" or something. =/