What about MY trademarks and/or copyrights?

Red_Raccoon · 08-12-2010 09:22 AM

Quote:

Originally Posted by seebs

It seems to me that they could protect themselves just as well without claiming to obtain ownership.

I've always assumed that the purpose of that wording was so that if they make a promotion video or demo or something that includes images of actual players playing their own characters, they don't have to go and get permission from each individual person to do it. Makes sense to me.

Quote:

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...

While it can be a challenge to come up with a truly unique idea, creative people are managing to pull it off everyday--or at least create material that doesn't infringe on existing copyrights. In the year and a half that I've been playing CoH, I've created 50+ heroes and villains, simply because I keep thinking up new ideas for characters. If I were to start publishing my own material, I have no doubt I could come up with another 50+ before long.

Shadowe · 08-12-2010 09:23 AM

Suppose I have a character named "Supershad" on Freedom, and I want to rename him. Every now and then (like just after I18 launches) we get a period of free character transfers.

So, to rename him to "Shad Superior" (for free), I transfer him to Pinnacle (say), and then create a placeholder toon on Freedom called "Supershad". I then transfer the Pinnacle "Supershad" back to Freedom. Oh, no! Name in use! Free rename granted. "Shad Superior" is now born on Freedom.

The wisdom of Shadowe: Ghostraptor: The Shadowe is wise ...; FFM: Shadowe is no longer wise.

; Techbot_Alpha: Also, what Shadowe said. It seems he is still somewhat wise

; Bull Throttle: Shadowe was unwise in this instance...; Rock_Powerfist: in this instance Shadowe is wise.; Techbot_Alpha: Shadowe is very wise *nods*; Zortel: *Quotable line about Shadowe being wise goes here.*

Obsidius · 08-12-2010 09:26 AM

Quote:

Originally Posted by seebs

??

Transfer character to be renamed off of the server
QUICKLY create a new character on the server with the same name as the old character
Transfer old character back to the original server
Your character's name is taken, meaning that you are forced to rename the character

Voila! Free character rename during "free serer transfer" promotions.

Tyrrano · 08-12-2010 09:58 AM

Quote:

Originally Posted by seebs

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...

Exactly. If an established author comes up with a character concept on CoX, then ended up wanting to write about said character, that could be a lot more 'thorny' from a legal standpoint.

Not to mention that when your work is to write creatively, sometimes you don't want to be creative in your 'hobby time'.

Companies write EULAs like this one mainly to protect themselves. In NCSoft's case, it helps them defend lawsuits like the Marvel one. While it might seem to let them take ownership of a character, in reality using it that way would be far too expensive. Would NCSoft really want to spend millions to gain the property rights to, for instance, Harry Dresden? It's just not something that'd be profitable for them in the end.

Brillig · 08-12-2010 10:35 AM

Quote:

Originally Posted by Tyrrano

Companies write EULAs like this one mainly to protect themselves. In NCSoft's case, it helps them defend lawsuits like the Marvel one. While it might seem to let them take ownership of a character, in reality using it that way would be far too expensive. Would NCSoft really want to spend millions to gain the property rights to, for instance, Harry Dresden? It's just not something that'd be profitable for them in the end.

Relying on the practicality and good sense of others is a bad idea when it comes to protecting your livelihood. Especially when lawyers are involved.

The smart thing to do is not to open the door.

Tyrrano · 08-12-2010 11:11 AM

Quote:

Originally Posted by Brillig

Relying on the practicality and good sense of others is a bad idea when it comes to protecting your livelihood. Especially when lawyers are involved.

The smart thing to do is not to open the door.

Personally, I couldn't agree more. I never said *I* would risk my own IP here. But then, architectural plans don't really translate to this environment so I really have nothing to risk.

Sailboat · 08-12-2010 11:37 AM

Quote:

Originally Posted by Tyrrano

But then, architectural plans don't really translate to this environment so I really have nothing to risk.

Yeah, I've seen the office building maps, and they have nothing to do with any kind of plan.

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Call Me Awesome · 08-12-2010 11:57 AM

Quote:

Originally Posted by Tyrrano

Personally, I couldn't agree more. I never said *I* would risk my own IP here. But then, architectural plans don't really translate to this environment so I really have nothing to risk.

Quote:

Originally Posted by Sailboat

Yeah, I've seen the office building maps, and they have nothing to do with any kind of plan.

You two owe me a new monitor, the old one just got covered with Pepsi. That stuff smarts coming out your nose you know

COH has just been murdered by NCSoft. http://www.change.org/petitions/ncso...city-of-heroes

seebs · 08-12-2010 11:59 AM

Quote:

Originally Posted by Red_Raccoon

I've always assumed that the purpose of that wording was so that if they make a promotion video or demo or something that includes images of actual players playing their own characters, they don't have to go and get permission from each individual person to do it. Makes sense to me.

The "worldwide non-exclusive license" completely covers that; there is no particular reason for which it makes anything better or easier for anyone to have the "ownership" language even in there.

As to the question of whether they care whether you own it:

If they really don't care whether you own it or not, why do they have the qualifier "third-party" in every single reference to copyrights or trademarks? If they didn't have that qualifier, that'd be clear and obvious. With the qualifier there, I can find no example of any policy banning me from using even an extremely well-known and trademarked name if I am the trademark holder. So why is the qualifier there, if as people are telling me, they don't mean it?

Red_Raccoon · 08-12-2010 12:20 PM

Quote:

Originally Posted by seebs

The "worldwide non-exclusive license" completely covers that; there is no particular reason for which it makes anything better or easier for anyone to have the "ownership" language even in there.

At this point you might be better served directing your questions regarding the EULA wording directly to NCsoft. Some of us have suggested possible reasons why certain provisions are in there, but no one in the Player Help section can give the definitive answers you seek. We're not lawyers and we didn't write the EULA.

Quote:

As to the question of whether they care whether you own it:

If they really don't care whether you own it or not, why do they have the qualifier "third-party" in every single reference to copyrights or trademarks? If they didn't have that qualifier, that'd be clear and obvious. With the qualifier there, I can find no example of any policy banning me from using even an extremely well-known and trademarked name if I am the trademark holder. So why is the qualifier there, if as people are telling me, they don't mean it?

I think it's less an issue over whether or not they "care" if you own it as it a matter of whether or not they're actually going to take the time to verify if you are the actual copyright holder. I can't imagine why it would be worth their time to do so.

Vel_Overload · 08-12-2010 03:16 PM

I suggest not doing it personally. Even though I doubt that the ToS would stand up in court against a copyright on a character thats older than the one made ingame.

It would be messy but I doubt anyone would care. Considering all of the Marvel/DC/lolImage knockoffs that have been frowned upon but gotten away with their identities, I doubt that NCsoft cares if your friend uses his own character in game.

Suggestion: make the character look like the one in the book but don't name it after the character.

Whining about everything since 2006.

Ammo switching for Dual Pistols was my idea:
http://boards.cityofheroes.com/showthread.php?t=135484

seebs · 08-12-2010 03:30 PM

I think we'll probably just go with non-obvious names, such as nicknames or something, which no one is likely to recognize or do anything about.

I care less with ncsoft, who are merely a soulless corporate machine, than I would with, say, Sony, who have a long history of flagrant abuse of court systems.

seebs · 08-12-2010 03:34 PM

Quote:

Originally Posted by Red_Raccoon

I think it's less an issue over whether or not they "care" if you own it as it a matter of whether or not they're actually going to take the time to verify if you are the actual copyright holder. I can't imagine why it would be worth their time to do so.

I can't either. Which makes me wonder why they have the "third-party" qualifier, since it's presumably irrelevant.

Actually, I suppose the issue is this:

By definition, the instant you create a character, you have created a creative work, and if you save a copy of the costume, you have fixed that work to a tangible medium, wherupon it is now a copyrighted thing, by definition, because it's a creative work that has been fixed in tangible form. So if they didn't have that qualifier, they would have a policy which bans any character from being played if that character has been created. Obviously, that would be a problematic policy.

Fulmens · 08-12-2010 04:39 PM

Possible scenario:

I played some of my characters in public at Comic-con a couple years ago. If someone videotaped that [say for a news show] and showed, I dunno, Boltcutter on TV, NCSoft better have the rights to broadcast Boltcutter. (The only person I remember playing was Boom Baby, who's been renamed since due to a server move.)

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So you think you're a hero, huh.
@Boltcutter in game.

EmperorSteele · 08-12-2010 05:49 PM

The EULA is to prevent NCSoft from suffering stupid lawsuits. For instance, let's say you and your sg are standing around Atlas, and a Paragon Studios rep takes a screen shot and posts it on the site. Without the ownership-claiming clause, one would be able to sue NCSoft for unlicensed publication of their intellectual property (ie, posting a screen shot of their character).

Best way to get around this is for NCSoft to basically say everything you make in the game belongs to them. And that -could- be used against one who wishes to create their character on the CoH servers, though i doubt NCSoft would be huge jerks about that sorta thing. Still, play it safe and make an expy or something.

-STEELE =)

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Katie V · 08-12-2010 08:45 PM

Quote:

Originally Posted by Rodion

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.

Trademark doesn't work like that.

Quote:

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.

Copyright doesn't either.

Trademark is about protecting symbols used to represent particular goods or services. You can trademark absolutely anything if you're using it to represent your goods or services so long as it isn't a generic term for those; trademarks can be "for all purposes" (rare) or "for a particular area of commerce" (common). Consequently, DC can (and has) trademarked "Superman" in the following fields: candy, amusement park rides, the internet, comic books, shower curtains, handbags and purses, underwear, and numerous others. It has not trademarked it in the field of philosophy, and probably cannot because of Nietzsche's prior and better-known use.

Trademark is "use it or lose it", so you cannot protect a mark that you are not using. You must also actively defend it to keep it from becoming a generic term for the goods or services; Otis Elevator, for example, lost their trademark on "Escalator" this way. This is why Marvel and DC are so aggressive about people re-creating their characters in CoH: a desire to keep "Superman" from becoming a generic term for a man in blue spandex wearing his underwear on the outside.

Copyright, on the other hand, does not need to be actively defended. Failure to deal with an infringement you know about may prevent you from suing later over that particular infringement, but it does not invalidate your copyright or prevent you from suing over other infringements.

Tyrrano · 08-13-2010 10:15 AM

Quote:

Originally Posted by Call Me Awesome

You two owe me a new monitor, the old one just got covered with Pepsi. That stuff smarts coming out your nose you know

*hands CMA a Clorox wipe (lemon fresh)*
That should take care of the monitor. Pepsi shouldn't hurt it, unless you somehow managed to aim behind the monitor and get it in the cooling slots.
*rummages around in storage*
Here's a never-used Microsoft ergo keyboard. Afraid I can't do much for the acid in your nose, tho. Maybe dissolve some Tums in water and snort it?

Ironblade · 08-13-2010 10:30 AM

Quote:

Originally Posted by Bad_Dog

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?

hmm.... Are you being sarcastic or did you just choose an ironic example by accident? One of the reasons Marvel was quick to settle the case was that their representatives (not sure if it was employees or lawyers) did EXACTLY what you describe - creating Marvel's characters in the game to 'demonstrate' infringement.

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MunkiLord · 08-13-2010 12:05 PM

Quote:

Originally Posted by Ironblade

hmm.... Are you being sarcastic or did you just choose an ironic example by accident? One of the reasons Marvel was quick to settle the case was that their representatives (not sure if it was employees or lawyers) did EXACTLY what you describe - creating Marvel's characters in the game to 'demonstrate' infringement.

Another probable reason is because their case had no actual merits. Section 230 safe harbors should protect NC Soft in this case(at least in the U.S.).

Dasher · 08-13-2010 12:10 PM

Quote:

Originally Posted by Brillig

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.

CBS' "Paladin" Lawsuit

Mr. Victor DeCosta was a journeyman rodeo performer from Thode Island who went by the stage name "Paladin". His business card bore an image of a chess knight and the words "Have Gun; Will Travel".

Laregly forgotten now, during the heyday of the TV western, Mr. DeCosta had pitched an idea for a TV show to CBS about a hired gun based on his character. What followed were years of suits and counter-suits, with a final judgment in Mr. DeCosta's favor.

From PEOPLE Magazine, April 29, 1974:
"He was perhaps the first cowboy with discriminating tastesKeats' poetry, Chateau Haut-Brion and Ming porcelain competing with his gun for his affections. He was called Paladin, and between 1957 and 1964 Actor Richard Boone made him one of television's most popular heroes, bringing home to CBS a tidy profit of $14 million plus millions more for his patented outfit: black hat, black pants, black shirt and a calling card that read "Have Gun, Will Travel. Wire Paladin, San Francisco." One viewer, however, thought he must be seeing his double. Rhode Island Cowboy Victor DaCosta, who had been making a hit since 1946 at New England fairs (his cards read: "Have Gun, Will Travel. Wire Paladin, Oaklawn, R.I.") found Boone to be his dead ringer, right down to the black outfit and the derringer tucked up the sleeve. Last week, after 17 years' litigation, DaCosta, now 65 and a mechanic, won his suit charging that the series had been copied from his act. A Providence court ordered CBS to pay him "the proceeds of their wrong." Yet to be determined, the sum should be enough to allow DaCosta to copy Boone/Paladin's tall-in-the-saddle style of life."

What we create, we own. When we paint a picture of an original subject of our own design, it is not the property of the companies that make the canvas, or the brushes, or even the paints. The medium is irrelevant to the ownership of the result of the creative act.

And so it goes...

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Brillig · 08-13-2010 12:18 PM

Quote:

Originally Posted by Dasher

What we create, we own. When we paint a picture of an original subject of our own design, it is not the property of the companies that make the canvas, or the brushes, or even the paints. The medium is irrelevant to the ownership of the result of the creative act.

And so it goes...

Interesting but not strictly relevant. If you were following the context, the individual would have had to have won his claim after taking action that could reasonably be seen as having given over his intellectual property to the company.

Obviously, that would not have been the case in a pitch meeting.

Local_Man · 08-13-2010 12:32 PM

Quote:

Originally Posted by Bad_Dog

Here is why it is a bad idea and a no-win situation:

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?

It has been a while since I read the court decision, but from what I recall, the case was settled because NC Soft won a preliminary Injunction hearing that made it very, very likely that NC Soft would win the case. In fact, the EULA worked and protected NC Soft because it prohibited copies of trademarked characters. Marvel was trying to shut down the game completely, and the Court said "No" at a preliminary hearing. In most cases, whoever wins the preliminary hearing will very likely win the case.

And I seem to recall (but I may be mistaken) that some of the Marvel people actually logged onto CoH and recreated some of the Marvel characters to prove that it could be done . . . and the judge cited this as a basis to say that the Marvel people were causing CoH to violate the trademarks by creating their own violations in the game. So Marvel DID resort to those tactics, kind of.

In effect, as long as NC Soft agreed to make "reasonable efforts" to get rid of trademark violations, CoH itself did not cause a trademark violation. It would be like Crayola being sued because you can draw Wolverine with Crayons. In the "settlement," CoH really didn't give up anything from what I recall.

Edit: Oh, I see others kind of addressed the same points.

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MunkiLord · 08-13-2010 05:18 PM

Which is exactly why safe harbors were put into such things as the DMCA. To make sure the proper parties are held liable for infringements.

Decorum · 08-14-2010 01:27 AM

Quote:

Katie V has me splitting hairs:

It has not trademarked it in the field of philosophy, and probably cannot because of Nietzsche's prior and better-known use.

An aside that technically Nietzsche didn't use it either. He used Übermensch, which someone translated as Superman (well, actually, Beyond Man first, then later Superman), when it's more literally Overman.

Dec out.

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uberschveinen · 08-14-2010 03:13 AM

Here's the thing about a End-User License Agreement. In fact, it's the thing about contracts in general.

You can put whatever you want in them. Anything at all. It doesn't have to be sensible. I can take a standard mortgage contract and, at the end of it, write down "Subclause 22(b): The signatories to this contract acknowledge that this contract is not a helicopter." It doesn't even have to be reasonable. I can make subclause 22(c) "The signatories to this contract agree to, within one year from this date, transcribe this written contract into such a form that it is a helicopter." Hell, a contract doesn't even have to be legal for it to work. Literally tens of thousands of contracts a year are agreed upon, carried out, and completed that are actually not a legitimate contract, and a fair few of these are actually illegal contracts that cannot by law be made.

Only one thing matters in contract law, and that is enforceability. Although you can put anything you like in a contract, when you actually have to force someone to follow the contract in a court, a judge will only be able to force the other party to the contract to do some of those things. What these things are in general is pretty common in most Western nations, but the specifics will vary quite widely between jurisdictions.

This is why the EULA is written with such absurdly broad language. By giving themselves every right imaginable, if NCsoft ends up trying to enforce those rights in court, they won't usually miss out on rights when the contract is rectified to be legal for that specific jurisdiction. They lose nothing for this, since if a term of the contract is unenforceable, there is no penalty applied to it. There's also a chance that, because the proportion of game-players who actually have even a basic understanding of contract law is not great, that a player will choose to fulfil the parts of the contract that are unenforceable because they don't know better.

If it ever came into a court, in any jurisdiction, many of the provisions in the EULA would either be excised or rectified into much weaker forms. The thing is, what are you going to be doing under the EULA that's worth tens of thousands of dollars and days of your life to enforce?