What about MY trademarks and/or copyrights?

I created a character that looks like me and has my real name... Is that covered in the EULA?

Uh oh, have I been owned by NCsoft for the past six years??

No, it's not according to him, or anyone with any sense at all.

The inherent presumption in any contract ever is that, if you agree to perform an act or not to perform an act, that you have the authority to do so. This is so staggeringly obvious that not only is it assumed to be a basic element of any contract ever written in every last legitimate jurisdiction on the planet, but that in nearly all of these it is not actually possible to remove this implied term from the contract even with express terms.

Claiming that because NCsoft can't claim copyright of a character you don't own that they can't claim ownership of characters you do is almost as well-thought-through as the notion that because it's legal to stab yourself as a person in the throat that it must therefore be legal to stab any person in the throat.

Putting it simply, it comes down to this:

1) The Terms of Service for CoH are legal protection for Paragon Studios and NCSoft. It is not intended to give copyright for your characters to NCSoft, it is intended to keep YOU from suing THEM for use of your copyrighted character.

2) Copyright exists in reference to a "work". A different "work" is a different copyright. Thus, NCSoft's license to use your character exists within the work known as City of Heroes. You also grant them license to use your character in other copyrighted works that they may derive from City of Heroes. But the right that you acknowledge as their right to own the "character" is in that work known as "City of Heroes".

3) NCSoft and Paragon Studios own all other rights to all properties present in City of Heroes. Statesman, Paragon City, Lord Recluse, the Rogue Isles, Praetoria, Atlas Park, Crey Industries, the Circle of Thorns, and so forth and so on are all copyrighted by NCSoft. If you reference any of these properties in your character's bio (and even because you interact with them) then that copyright belongs to NCSoft, not you. I assume, if the TOS makes no reference to this, that their ownership of your character in the game means that they grant you the license to use these properties, just as they grant you the right to play your character in the game.

4) Finally, and I feel this is the most important, even though you do grant ownership of your character as he exists in City of Heroes (in the context of being a part of other properties that NCSoft owns) you do still own the copyright to the character yourself. You do not grant ALL rights to the character to NCSoft, in particular your rights as the creator of the character. It becomes a shared copyright, between yourself and NCSoft. What rights you do surrender are mainly in the area of what you can prevent NCSoft from doing, but NCSoft does not prevent you from playing your character, or prevent you from claiming it as your own creation.

Really, the best way to deal with the issue is to make sure that your character in City of Heroes is distinct and easily identifiable as different from other versions elsewhere. I have a character, a cyborg, who I originally created for a fanfiction based on another game. I removed all references to that original game in her bio and design, and made her becoming a cyborg a result of a Crey experiment. If I create another version of the character altogether, who became a cyborg in a different way, then she would be distinct enough from the other two versions to be my own property.

If you want to avoid the issue of trademark, then change the name, too. But that depends on whether you want to trademark the name, in the case of my character, her name is her name.

(Note, BTW, the very next line in the quote from the TOS which is so often used as "proof" that NCSoft takes away your rights to your intellectual property. "To the extent that NC Interactive cannot claim exclusive rights in Member Content by operation of law..." The assumption is that merely by NCSoft claiming that it owns the character in question, that is legally enough to force transfer. It is not, that would actually require a court ruling, which is why the next line. Again, the legal text is NCSoft protecting itself from infringing on the copyrights of people who submit content to them)

There's also the possibility that Marvel went for the claim Time Warner (I think it was) made of Youtube, i.e. that their business model actually relied on users infringing.

Ah, this topic again. Although I am not a copyright attorney and also not giving legal advice per se, this subject is really not all that ambiguous. To the extent that *anything* in copyright law is unambiguous, this situation is unambiguous (which means, there's one answer if you believe lawsuits are based on the law, and a different one only if you dig up Johnny Cochrane to represent you).

First, in the US copyright is based on the principle that copyright attaches at birth: the moment a creative work is "created" (fixed in tangible form) the author becomes the owner. This happens as a matter of law. There are only two possibilities: the person actually creating the work is the author and therefore the owner by law, or the person's employer is if and only if the work is a work-for-hire.

When I make a character in the character creator, I'm the creator and owner of that work as a matter of law in the US. The EULA cannot supercede that under any circumstances unless the EULA was a work for hire contract. Its not.

Second, copyright cannot be transfered as a matter of law except by a specific written document doing so. This is to protect authors. Transfer must be signed and in writing (it cannot be a verbal contract) and must be specific - it must list the exact works being transfered ("anything you make with the character creator" doesn't count - the law explicitly states each work being transfered must be named specifically). So even if the EULA says I must immediately surrender my ownership of "anything I do," it cannot enforce that provision as a matter of law in the US.

Third, an exclusive, irrevocable licensing agreement is considered equivalent to an ownership transfer as a matter of law for the purposes of transfer, because it in effect transfers all rights to a third party. So it also has the same requirements as above. NCSoft cannot ask me to transfer control of my characters to them exclusively, leaving me with no rights to them. That is also a violation of US Copyright law.

Fourth, copyright law is silent on non-exclusive irrevocable licensing agreements which do not transfer ownership. That is why that is what NCSoft's EULA specifically demands. It asks for ownership where that is possible by law and where that is not possible (for example, anywhere within the United States - I'm unfamiliar with the situation in other countries) it asks for a non-exclusive irrevocable license to use the work in any way they see fit. That is where that phrase in the EULA specifically comes from: its there to comply with the requirements of US Copyright law.

This is all NCSoft needs. With this license, they can use that character I just created in the costume editor for any purpose whatsoever, and because the license is non-revocable I can never stop them (well, technically speaking I might be able to in 35 years when the author clause of Copyright Law kicks in). However retaining ownership grants me almost nothing, because I used their character creator. While they have a license to use my work, I don't have one to use theirs. I cannot use the graphics, art, animations, backstory, or any other intellectual property of NCSoft without an explicit license which they haven't granted to me. So I cannot use images of my character for commercial purposes, or the backstory if I've mentioned *anything* about the City of Heroes world or entities, or videos of my game play - nothing from the game.

I *could* use the character *concept* in another work, provided I used none of those elements. Which is basically recreating the character nearly from scratch in another original medium. I can take my MA/SR scrapper and make a fictional martial arts super hero that dresses in black and purple and fights crime and NCSoft cannot stop me from doing so because they don't own that concept. But that's about all I can do.

In short: if you make it, you still own what you made, but they still own what they made that you used, and they can use what you made however they want. You cannot do likewise.


Now, what happens if you are the owner of an actual copyrighted character and make it in City of Heroes? Absolutely nothing different. I *am* the owner of actual copyrighted characters. I'm no different than Jim Butcher in that regard. If he were to make Dresden in City of Heroes, the version of Dresden that he makes in the game would be something he would be licensing to NCSoft to do anything with they wanted. NCSoft wouldn't own Dresden, so they couldn't stop him from continuing to make Dresden novels. But from that point on, Butcher couldn't stop NCSoft from putting Harry Dresden on the box art for City of Heroes either - at least the version that Butcher created in the game.

So if you are the owner of copyright characters that you want to maintain 100% control over, don't make them in City of Heroes. Doing so costs you that control by virtue of the licensing terms of the EULA.