Screen Caps and Images terms of use policy

This question may be more complicated than normal gamer questions, but here goes.

About half the reason I bought City of Heroes is to build a character I could use as a mascot for my blog http://www.calvinistgadfly.com. (The other half is that I have been dying to play CoH for years) So I have taken some screen caps of my hero in different poses and places and have used GiMP/Photoshop to edit the images for web use.

My question is this: can I use images of my hero on t-shirts and gift junk for sale for profit? Are there restrictions by Paragon & Co. regarding my use of the character I designed? I think I can sell some shirts and some mugs to my blog readers -- but I don't want to violate anyone copyright or other IP rights.

Thanks for your help -- love to play and love CoH.

Basically, the EULA claims that everything you do on CoH is now owned by NCSoft... local law notwithstanding. And if local law withstands, then you are agreeing to voluntarily surrender all rights to NCSoft... local law notwithstanding.

You see, the "local law notwithstanding" is the fudge factor. US law gives creators automatic ownership of their creations. So, while NCSoft may *claim* to now own it... do they really? Will that claim hold up in court if challenged?

So, let's say that claim is not upheld by court and they can't simply claim your creations as their own. The next part of the EULA says you agree to give it to NCSoft anyway as a contractual agreement... local law notwithstanding.

For now we get into the part of copyright law that deals with signing over rights and what conditions must be met for that to happen. Is clicking a check box sufficient for transfer of copyright?

And then local contractual law comes into play: Your local state may not recognize clicking a check box as the same thing as a contractually binding signature.

On top of restricting your rights to use your own creation, the EULA gives NCSoft unlimited rights to use your creation as they see fit. You may find your character, which is your creation, plastered on billboards advertising the game. The EULA claims NCSoft has the right to do it since they now own your creation and if local law prohibits such claim, the EULA is set up as a contract where you give NCSoft such permission... local contractual law notwithstanding.

Regardless of what the law says, NCSoft is a business. If you don't follow their rules, they'll kick you from the game. And there's no recourse to that. They're not obligated to do business with you. That has nothing to do with copyright law.

So, if you use your creations on CoH for a for-profit venture and NCSoft finds out. They could *try* to sue you over it. They might win (but more than likely lose). But whether they win or lose, they can kick you from the game for sure.

That's what they *could* do. Now, *would* they? If you used images for personal use in a not-for-profit way, it would be unlikely for them to pursue... unless it became very famous. If you used the images for-profit... then there is a higher likelihood they will pursue. If it seems you made big bucks, they would be wise to sue. If it's just a rink-dink operation, they'll tell you to stop and if you don't... kick.

OR.... you ask for permission in advance. Send a PM to a form mod about it.

All -- I didn't think I get this much useful feedback on a SUnday night so quickly. Thanks!

I had a feeling that there was a joint ownership clause, and that's going to restrict for-profit use of characters rendered in CoH. I've sent a note to NCSoft for more info. If you're interested, I'll log the conversation with them here.

Just for the record, of course I wouldn't reprint their e-mails here word for word. However, the info regarding use of character images from a practical standpoint seems to me to be a useful bit of information for the forums.

Stay tuned.

My basic understanding, distilled from the legalese, is that you cannot use their property to make money for yourself.

@SpaceNut - My 50s, AE arcs and current projects at ParagonWiki

For those following along, Support's first reply is an escalation to a higher power at NCsoft, so they don't have a canned answer for this request. I see that as good news for user-supplied content: the default position at NCsoft is not IP-greedy.

FWIW, having worked in publishing for about 10 years on the production side, I se the reasons for NCsoft's written policy: they want unlimited use of the characters created on CoH/CoV and zero liability for people who, as an example, try to knock off Captain America or Superman. I think their Terms of Use there is very good for them in that respect -- but I think the pessimism of some of the commentors here about NCSoft's willingness to allow players to create extra-gaming buzz about their characters or the game is unwarranted. NCSoft is a gaming platform company which isn't really marketing gifts and memorabilia.

I agree that if someone leveraged their character and its likeness into real money NCSoft would want a slice -- they'd be entitled to it for being the platform provider and a service provider for the "parts and pieces" of the character's design. But I'll bet we're going to find out that NCSoft isn't dead set against players making much of their toons and creating traffic back to the MMO.

Stay tuned ...

Regardless of how enforcable the EULA is in your region, the in-game representation of your game is made up of textures created by Paragon Studios/NCSoft (or by Cryptic, and now owned by NCSoft). As such, you have just as much right to make profit from those textures, in any configuration, as you do from the sprites of Super Mario Bros., Legend of Zelda, or any other game.

Admitedly, this does not stop people from using licensed material in unlicensed merchandise. However, should the owner of the license be made aware, they can, and usually will, take action against the person responsible.

Merchandise bearing representations of your character that are NOT taken from in-game sources, such as drawings or paintings, are less clear, since you aren't directly using something that NCSoft owns.

Perhaps we can finally put the old "if you make a character in CoH you are signing all your rights to them over to NCSoft and can never make anything with them in other media for profit" myth to sleep.

No matter what way this falls out, you are honestly better off taking those screenshots of your heroes and commissioning an artist to make original works for your character, using the screenshot as a reference for 'about' how the character should look. Make some changes just to be safe, but approximation should be ok.

In the deal with the artist, make sure you are also buying the rights to reprint the image, and to sell copies and modifications of it as you see fit. It may increase the price, but not all that much considering the going rate on some very good artists over at deviantart and other art websites.

This way, you own the art. The character is your creation due to U.S. copyright law, and there shouldn't be issue with the "I used this as an example of how it could look" CoH involvement, provided it is only used as reference, and not traced/copied directly. It also looks better than a 6 year old games pixellated graphics being stamped onto t-shirts and coffee mugs.

I recall Mother's Love having similar issues doing T-shirts a year or so ago. Not sure what the actual ruling what but pretty sure it ended with him stopping them for the most part.

OK -- one comment before I tell you the update for today in this saga: all the very smart people here with ubiquitous pessimism toward NCSoft need to reign it in. A little anyway: is NCSoft's intention was to squash any player from having real fun with the character s/he has created in CoH/CoV, they'd have a canned rejection speech for requests like mine at Support. Ask Coke to co-license the trademark, and the first voice at 1-800-drink-coke can tell you, "fuggeddaboddit".

Support has given me the e-mail address for business development to make my case for licensed use of the character. That's good news for anyone who is thinking about this as they see this as a fair question and not as a bone-crushing rejection of what paid users can do with content they have created.

Stay Tuned.

That's actually a great idea which I will take under advisement. Using the Coh/CoV content as reference rather than using it directly eliminates a ton of problems.

Support gave me a snail-mail address to send in my business proposal for use of characters -- apparently their "bizdev" e-mail account has been locked out.

Will update when I have more info; thanks to all for following along.