What about MY trademarks and/or copyrights?
By
Ad Astra,
Posted on: 2010-08-11 15:14 in Player Questions
Yes, it does, for the simple reason that NCSoft doesn't want to have to be concerned about verifying ownership or permissions.
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Your friend would be well advised not to do this whether or not it's permitted. Remember, characters created on an MMO server become the intellectual property of the company that runs the MMO. If the person who actually owns the trademark/copyright, of their own volition, created that same character on an MMO server, that could well be seen as voluntarily abandoning their trademark/copyright at the very least. And possibly assigning said rights to the company.|
Originally Posted by seebs
A friend of mine, who has written books, was thinking about playing a character from one of those books in CoH.
The ToS appear to prohibit the use of characters-which-are-owned. Does that apply even if you're the owner, or have the owner's written permission? |
Your friend should probably consult a lawyer, but based on my knowledge, this is a really, really bad idea.
(Anyway, if said friend is creative enough to write books, coming up with an original character should be no big deal, right?)
Well, the purpose of that part of the ToS is to keep people from ripping off DC and Marvel characters so they don't sue (even though Marvel still did). Really, if your friend's books are obscure enough, nobody will care either way.
Edit: Or apparently it's a horrible idea from a legal perspective. The more you know.
We have had several very long involved discussions about that very topic. I'm not telling you that you should have searched first, but I bring it up because I can't remember all the legal niceties. My general memory of the topic is something to the effect of:
"If you are concerned about losing a trademark or copyright by creating the character, then don't do it."
Intellectual property law (which governs the issue) is pretty complex and I have seen strong arguments about both sides of the issue (whether or not your friend's use of his characters transfers some element of ownership of the trademark/copyright to NCSoft).
If your friend has published to a wide distribution, it's somewhat likely that another player will petition the name and the character will get generic'd - GMs do not have discretion to investigate further than checking to see if there is a known trademark/copyright.
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Originally Posted by SpyralPegacyon
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Okay, worth knowing.
BTW, I don't know of anything saying that ownership of characters would transfer to the people running the MMO, and I suspect they'd run into a horrible nest of legal trouble if they actually tried to assert any such thing. That is, in general, simply not how copyright works. You can claim an implicit license up to a point, but it's surprisingly hard to transfer copyright no matter what anyone says.
In any event, since I've created the same character in another MMO and CoH, they can go sue each other. :P
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Originally Posted by seebs
Okay, worth knowing.
BTW, I don't know of anything saying that ownership of characters would transfer to the people running the MMO, and I suspect they'd run into a horrible nest of legal trouble if they actually tried to assert any such thing. That is, in general, simply not how copyright works. You can claim an implicit license up to a point, but it's surprisingly hard to transfer copyright no matter what anyone says. In any event, since I've created the same character in another MMO and CoH, they can go sue each other. :P |
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Originally Posted by The Terms of Service
(c) Member Content. Members can upload to and create content on our servers in various forms, such as in selections you make and characters, certain additions to the game world, 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 (i) you represent and warrant that you have the necessary rights to submit such Member Content; (ii) the Member Content does not infringe the proprietary rights of any third-party, including intellectual property rights; and (iii) 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 other proprietary rights.
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Cool thing about agreements like that: Companies write all sorts of crazy stuff in them. I have never in a million years heard of them winning a case based on such stuff. Can anyone point to a single case of a company using such an agreement to successfully claim ownership of a character previously owned by someone else?
So far as I know, that language is pretty generic, used by multiple companies, and basically comes down to "and this way the players can't sue us for having their characters visible when they log in". I've never heard of it being successfully used to claim copyright. I could buy the non-exclusive license, although again, I doubt a court would go anywhere far with it.
Basically, if Bob Kane were to log in and create Batman, I don't think ncsoft would find that they had any special ownership or any rights to display the character apart from letting him play. If you have actual evidence to the contrary, I'd love to see it, but the utter nonsense that people stick in EULAs is not generally something the courts have been very supportive of.
I do notice also that they consistently refer to third-party copyrights when they talk about what's banned, so it looks like they are aware of the difference.
Disclaimer: I'm a published writer, I used to take people to court recreationally. My views may not reflect those of other people. 
In any event, I do think we'll probably avoid making any characters borrowed from existing writing too obvious, just to save GM hassle.
No, I can't show you a case where a company has claimed ownership of a character owned by someone else.
Can you show me a case where the previous owner has successfully defended a claim against a company?
I doubt there's any case law on the point. That being the case, I wouldn't take the risk, personally. Your tolerance for risk may be different, and informed by the value of the copyrights in question.
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You don't have any. Not here, at least. ("Where we're going, we won't need eyes to see!") *cough*| What about MY trademarks and/or copyrights? |
Anyways, this is Players Asking Player Questions for Answers From Other Players: you may not like the answer, but it's the only correct answer we can give. And no, we don't need to cite any examples, it's just in the EULA.
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Best-selling Authors Troy Hickman and Mercedes Lackey both play CoH, and AFAIK, neither one uses any of their characters from their work as characters in the game.
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I've heard it said that the intellectual property refers to the character as portrayed in the MMO. | Your friend would be well advised not to do this whether or not it's permitted. Remember, characters created on an MMO server become the intellectual property of the company that runs the MMO. If the person who actually owns the trademark/copyright, of their own volition, created that same character on an MMO server, that could well be seen as voluntarily abandoning their trademark/copyright at the very least. And possibly assigning said rights to the company. |
I've also heard it claimed- and this is well into Urban Legend terrain- that Jim Butcher plays and got to play "Harry Dresden" because, although copyrighted, it is his copyright.
... here is a reference. Maybe not so urban.
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Interesting info...
It's possible that he was speaking facetiously. It's also possible that he worked out the legals ahead of time with NCSoft. It's even possible that he's doing something alarmingly stupid.
It seems like a move with very small upside and potentially unlimited downside.
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i think it has to do with using the character for publicity. if he creates the character, and by some oddball chance it is used in, say a magazine, he wouldn't be able to say anything. if somebody else were to make it and they used it, he could sue for not getting his permission. or something along those lines
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Originally Posted by seebs
Okay, worth knowing.
BTW, I don't know of anything saying that ownership of characters would transfer to the people running the MMO, and I suspect they'd run into a horrible nest of legal trouble if they actually tried to assert any such thing. That is, in general, simply not how copyright works. You can claim an implicit license up to a point, but it's surprisingly hard to transfer copyright no matter what anyone says. In any event, since I've created the same character in another MMO and CoH, they can go sue each other. :P |
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Originally Posted by Fulmens
I've also heard it claimed- and this is well into Urban Legend terrain- that Jim Butcher plays and got to play "Harry Dresden" because, although copyrighted, it is his copyright.
... here is a reference. Maybe not so urban. |
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| When I'm not writing or sleeping though, I relax by wrestling with my ferocious killer guard dog, teaching myself to play acoustic guitar, and playing mindlessly violent shooter games and/or City of Heroes, my latest game obsession. It's cool, cause I get to name my character Harry Dresden, and if they ask me to change it so that I'm not violating copyright I can tell them, "I OWN the copyright!" |
Paragon City Search And Rescue
The Mentor Project
Okay, so A.) He is unlikely to be pegged by the GMs and B.) His reasoning isn't worth squat in front of an attorney. 
There are no words for what this community, and the friends I have made here mean to me. Please know that I care for all of you, yes, even you. If you Twitter, I'm MrThan. If you're Unleashed, I'm dumps. I'll try and get registered on the Titan Forums as well. Peace, and thanks for the best nine years anyone could ever ask for.
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Originally Posted by seebs
Cool thing about agreements like that: Companies write all sorts of crazy stuff in them. I have never in a million years heard of them winning a case based on such stuff. Can anyone point to a single case of a company using such an agreement to successfully claim ownership of a character previously owned by someone else?
So far as I know, that language is pretty generic, used by multiple companies, and basically comes down to "and this way the players can't sue us for having their characters visible when they log in". I've never heard of it being successfully used to claim copyright. I could buy the non-exclusive license, although again, I doubt a court would go anywhere far with it. Basically, if Bob Kane were to log in and create Batman, I don't think ncsoft would find that they had any special ownership or any rights to display the character apart from letting him play. If you have actual evidence to the contrary, I'd love to see it, but the utter nonsense that people stick in EULAs is not generally something the courts have been very supportive of. I do notice also that they consistently refer to third-party copyrights when they talk about what's banned, so it looks like they are aware of the difference. Disclaimer: I'm a published writer, I used to take people to court recreationally. My views may not reflect those of other people. In any event, I do think we'll probably avoid making any characters borrowed from existing writing too obvious, just to save GM hassle. |
The thing is, lawsuits are expensive.
Do you REALLY want to have to sue a multi-million dollar company like NCSoft just because you decided to recreate your IP within the context of theirs and, by their contractual language, giving them, at the very least, a license to use your IP as they see fit?
And worse, do you want to actually have to pay some landshark butt-**** hourly fees to prosecute it? And, likely, you'll lose anyhow because you violated their TOS?
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Technically Misty's Diana Tregarde character shows up in the arc she wrote for AE.|
Originally Posted by Kheldarn
Best-selling Authors Troy Hickman and Mercedes Lackey both play CoH, and AFAIK, neither one uses any of their characters from their work as characters in the game.
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However, she's not going to be writing any more Diana Tregarde novels (due to really bad-weird fanboi reactions to the series).
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On general principles it's not clear that any "click to agree" terms -- from the agreements for MMOs, to the agreements on Facebook and similar sites, to the software licensing agreements -- is really binding on the person in whose name the button is clicked.|
Originally Posted by seebs
Cool thing about agreements like that: Companies write all sorts of crazy stuff in them. I have never in a million years heard of them winning a case based on such stuff. Can anyone point to a single case of a company using such an agreement to successfully claim ownership of a character previously owned by someone else?
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Since there is no signature, and not even a verbal face-to-face agreement, there is no way to prove that the person whose credit card is used to order a game or the person installing a software application is actually the person they purport to be.
Everyone uses these agreements, but the only legal function they appear to serve is to provide grounds for termination of the service if someone on the account violates the agreement.
In this particular case, the agreement specifically prohibits users from using copyrighted/trademarked character names and appearances, so they're not intending to use the agreement to usurp existing trademarks. They're stating that they are functioning like a magazine that is publishing short stories, and that any new character created in their game is automatically covered by their copyright, and that they are doing everything they can to prevent users from using previously trademarked names.
If they discover that you have used previously protected work they reserve the right to remove the offending names, descriptions and costumes, and potentially terminate your account. That's not the same as claiming that they own a character you previously published in a copyrighted work.
The whole area is rather tricky. Comic book publishers started trademarking character names not that long ago, but it's rather a bogus claim. You cannot trademark the title of a book; how is the name of a character any different? Especially a name like "Harry Dresden?" Surely, someone has had that name before Butcher wrote the book. Nietzsche coined the term Superman long before DC published Action Comics #1. Trademark law has the idea of owning marks in particular realms and even geographic locations. That means all such trademark claims are really up to negotiation and interpretation and not cut and dried.
But one thing is certain: if you don't take steps to protect trademarks and copyrights, you can lose them. That's why these companies are so picky about them.
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Here is why it is a bad idea and a no-win situation:|
Originally Posted by seebs
A friend of mine, who has written books, was thinking about playing a character from one of those books in CoH.
The ToS appear to prohibit the use of characters-which-are-owned. Does that apply even if you're the owner, or have the owner's written permission? |
Your friend may own the copyright but I'm positive that NCSoft is sure to change its name to GenericHero----- as soon as someone reports it. Even if it is obscure, even if your friend claims to own the character. I'm sure they will attempt to verify if it is copywritten and if they can, regardless of ownership, will perform an exorcism on the offending account. Why? The same reason they have the ToS agreement. They are protecting themselves from lawsuits.
After the Marvel lawsuit, they are fairly quick to respond to any reports of copywritten characters. And anyone who has been the focus of a player report will tell you that they don't just rename the one character, they go through all your characters. When NCSoft saw that their ToS couldn't protect them from the Marvel lawsuit, I believe they saw how easy it would be for some organization to set NCSoft up FOR a lawsuit. Afterall, how do they know that a hundred Marvel employees didn't subscribe to CoH just to make Dr-Doom, Wolverine, Captain America, Black Panther, etc and then claim multi-million dollar copyright infringement when the characters weren't promptly removed when reported? I think we all know that Marvel is too big and profitable to resort to tactics like these, but what about a small time operation.... like your friends?
The only part that protects him is this:
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| 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... a non-exclusive, universal, perpetual, irrevocable, royalty-free, sublicenseable right to exercise all rights... associated with such Member Content.... 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 other proprietary rights. |
I'm just saying it's a bad idea. If your friend is creative enough to have written books, then he is creative enough to invent a character that doesn't exist and have fun with the game. Debating a character created inside CoH with NCSoft will no doubt lead to frustration and disappointment.
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No, but Bob Kane would get his character gernericized in about 5 minutes, just like anyone else to tries to create and play Batman. And he wouldn't be able to name his character Batman, as it is blocked.|
Originally Posted by seebs
Basically, if Bob Kane were to log in and create Batman, I don't think ncsoft would find that they had any special ownership or any rights to display the character apart from letting him play.
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NCsoft doesn't have some sinister agenda to steal other people's copyrights. They simply don't want you to use any previously copyrighted material, period.
It seems to me that they could protect themselves just as well without claiming to obtain ownership.
The argument makes sense. I think, though, you're missing a key point: Writers mostly have their heads full of ideas, which means it's very hard to find an idea that isn't either already in use, or likely to be worth using later. So even if you just go create a new character, a month later you've got a good idea for a novel with that character in it...
Point of note: to NCSoft, a name is just a name. If there are ever any issues in the future regarding the status of an in-game character, it can easily be corrected with a $10 rename token (or during a free server transfer period, if you know how to work a rename out of it), and perhaps a change of costume.
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Big deal. If the name's not locked, just use it. It's NCSoft's job to block trademark names, if they miss one, that's their fault. It's not the players' job to worry about these things. If NCSoft doesn't want to violate some copyrights law, they should make an effort to block all copyrighted names.|
Originally Posted by seebs
A friend of mine, who has written books, was thinking about playing a character from one of those books in CoH.
The ToS appear to prohibit the use of characters-which-are-owned. Does that apply even if you're the owner, or have the owner's written permission? |
I doubt it's a well-known character anyhow so there's no way in hell NCSoft would know.
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Originally Posted by Obsidius
(or during a free server transfer period, if you know how to work a rename out of it)
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A friend of mine, who has written books, was thinking about playing a character from one of those books in CoH.
The ToS appear to prohibit the use of characters-which-are-owned. Does that apply even if you're the owner, or have the owner's written permission?