Character Ownership

I have a question about legal ownership of characters created in the City of Heroes/City of Villains game.

For the sake of this discussion, let's pretend that I totally didn't read any of the agreements or notices that you're *supposed to* before playing the game. Let's also pretend that I know absolutely nothing about legal practice.

...and let's also pretend that I had no clue where else to post this thread.

Now, let's say that I fire up City of Heroes, create a hero (Mr. Awesome) and play the game for a while (like 6 months). Then let's say I like my hero (Mr. Awesome) so much that me and my friends make a short, live-action movie about him and post it on YouTube. Let's say some big-shot Hollywood producer sees my video and exclaims "That's it!" and offers me $100,000 dollars to make a movie featuring my hero (Mr. Awesome).

Do I have ownership of my hero (Mr. Awesome) or does the makers/current owners of City of Heroes own them?

What if, it was the same scenario, but I'd actually done stuff with my hero (Mr. Awesome) before ever playing as him in City of Heroes? Did making the character in the game surrender my ownership of him?

And, on a separate note, are the current owners of City of Heroes like the I.P. Nazi's over at D.C./Marvel?

I would assume their "token" characters and setting are in their ownership.

Have they established any sort of rules for using either in fan-works?

I'm not sure if these are the types of questions that other players can answer, but just want to make sure where I stand in all this.

Well, Mr. Awesome (or The Hulk, or Spiderman) don't belong to anyone unless actually claimed in some way like a copyright or trademark.

If you create Mr. Awesome in your head you would be free to copyright or trademark him. If you create him within CoH/V... that MAY -I do not know- give them the right to claim him, but that doesn't mean they do automatically or that they would at all.

The Hollywood Producer might call them instead of you though, if that's where he sees it...

Ignorance of the EULA is not protection against it.

They won't track you down, but any likeness using the game art is owned by them, as well as any backstory related to the game.

Short answer: Don't, just don't.

Triumph: White Succubus: 50 Ill/Emp/PF Snow Globe: 50 Ice/FF/Ice Strobe: 50 PB Shi Otomi: 50 Ninja/Ninjistu/GW Stalker My other characters

There's wording saying that you grant them ownership insofar as that's legally enforceable. Which may be a little, a lot, or not at all. I would not recommend trying it. (Note also the complete lack of clear protections for your own copyrights. And note the rumors that Jim Butcher has a Thugs mastermind named Johnny Marcone.)

You could always just delete the character. As long as nothing about the character is exclusive to the game, like their backstory or look (And.. that's kind of hard given how few pieces are truly 'unique'. But that's sort of the awesome thing about the game's character generator, so many generic pieces to create just about any concept) you should be golden with your concept.

Or use a rename token >>

IANAL. (But I am an author.)

You probably own the name. It's pretty hard to give away copyright, unless there's an actual legal document physically signed by both parties that specifically transfers the copyright ownership. However, Paragon/NCSoft may have rights to use that name along with the in-game likeness in certain ways (e.g. for promotion).

You do not own: the image of the character from the game, the setting, the NPCs, the power names, unique power effects, unique costume pieces, AT name, set names, and anything else about the character that can be identified as being IP created by Paragon/NCSoft.

If this is really a serious proposition, with serious money involved, the most important thing is for you to TALK TO A LAWYER FIRST, and make it a lawyer who specialises in IP. It's no good taking legal advice later, when contracts have already been signed. Do it first, even if it costs money.

While others have stated how the EULA works (anything you make in game is "owned" by paragon studios) your character concept could easily be adapted as a unique and "owned by you" property.

"Mr. Awesome" in this case would probably go through a slight makeover... maybe he'll lose that vanguard chest emblem on his costume... and maybe that ascension belt design will have to be altered. He'll probably have the name of his home city changed from Paragon City to Manhattan New York or something. His mentor's name would change from Statesman or Sister Psyche to something new/unique. He might not have a power called "Knockout Blow" in fact none of his powers would probably be broken down and named like a video game does. He'd just be described as really strong and impervious to harm or maybe he's a psychic and he has telepathy and telekinesis which are standard super hero type powers that are open to use and interpretation.

Basically any details that are specific to the COH game would have to be changed. But such changes should keep the general concept of the character intact.

Jim Butcher and CoH

Mercedes Lackey's Secret World Chronicles

Essentially what's happening is that Paragon/NCSoft is asserting ownership of the physical representation of the character in the game.

This way, if there is any sort of dispute, they can assert control over the character, alter it (generic'ing) or deleting it if necessary without raising another dispute with the toon's creator.

Clicking on the linked image above will take you off the City of Heroes site. However, the guides will be linked back here.

Atomic Robo had an incarnation early on as a CoH character. Brian Clevinger has still not been sued by NCSoft despite several critically acclaimed TPBs of the character's adventures.

There are several issues to consider:

1. What the EULA claims.

2. What NCSoft will chase down in order to protect the claims of the EULA.

3. What real world laws in your state in and in the US has to say about the legal claims made in the EULA in two regards:

A) Are the claims in the EULA contrary to established law regarding copyright.

B) Are click-through contracts really enforceable as a contract.

Basically, they own anything that has been created in the game.

The wording of the EULA was part of what prompted the Marvel lawsuit (IIRC).

Marvel wasn't just annoyed that people were creating their characters in the game, they were annoyed that NCSoft was technically claiming ownership of those characters because people were creating them in the game.

There's virtually no way that NCSoft could have actually been awarded the IP rights to Wolverine or the Hulk, but the simple fact that the EULA is worded in such a way led Marvel to file a lawsuit because they are legally obligated to defend their trademarks or risk losing them. (Essentially, there would be a very small chance a judge could have awarded the trademark to NCSoft if Marvel had not stepped forward to defend their trademark rights. It's extremely unlikely, but possible)

In the case of Mercedes Lackey using characters created in the game in her books, Paragon Studios isn't going to pursue that. The free publicity is too valuable. There is a whole group of Mercedes Lackey fans who might check out their game now that had never heard of it before reading her book. Suing her over it would be shooting themselves in the foot. But make no mistake, unless there was a contract signed between Paragon Studios and Mercedes Lackey allowing her to use those characters, they very much could file a lawsuit if they wanted to.

As far as the OP is concerned, if you want to use a character created in the game in another media, say a comic book or a novel, the first thing you should do is delete the character from the game and ensure that the character's physical description or appearance cannot be construed as coming from the game. The simple fact is, you do not have the clout of Jim Butcher or Mercedes Lackey in order to get away with using your own characters in the game or characters from the game in your own work.

If you search posts that I have made with the keyword "Zerg" (in the thread, not title) you will discover some very interesting legal discussions about character ownership, although its a little past some of the smolder at the start.

Yeah, what I was pointing to above is some very detailed leagal arguments made in response to my thread about a character named Zerg. Its free legal advice, so maybe worth what you pay for it. On the other hand some of the arguments made and legal precedents cited seemed pretty substantial. Of course I'm no copyright lawyer.

The gist of it seemed to be the City has the right to use your stuff insommuch as they need to show your character to everyone else in the city. However, they would have a much harder time taking one of your characters/backstory/name and using that as the basis for something they do without your permission.

However, as infinite as choices in the city are you can easily see 'waves' or 'trends". I created a character and ran him for a day in sewers/dfb. Completely different look that i had seen before in the city, looking a very very specific way, including a seldom used wing. Over the next week I saw dozens of almost exact copies in atlas.

My wife works in the news industry. Most of us know we have a "right to privacy", correct? However, did you know that the more your name appears in print, the media, on the news the less "right to privacy" you can legally expect? In other words, the more you are reported on the less protection you have from being hounded by the news media....

I bring this up to illustrate the slippery slope of creativity. Do not expect to create "a masterpiece work of art" (even or ESPECIALLY if it is) and then go stand in NY Times Square with it for a day and not expect to see it ripped off a thousand times by the next month in ad campaigns, slogans, stories, etc. Copyright or sell that bad boy FIRST, then get it out to the public.

I think that one thing that is persistently lost in conversations like these is that people think that if stuff starts hitting the fan, Positron, War Witch, Zwillinger, or someone like that will step in and say, "Now come on, let's make nice..." What people need to remember is that they will NOT be dealing with the developers or reps. They will be dealing with corporate IP attorneys. Probably ones that Positron, War Witch, and Zwillinger have never even met. Probably ones that have never even played City of Heroes. Ones in Austin, Texas, not Mountain View, California.

You need to understand that every lawyer who is gainfully employed never looks at a situation and says to themselves, "What is fair here?" They look at a situation and, depending on which side they're coming at it from, think, "If some evil b****** wanted to screw us over as thoroughly as possible, what all avenues are available by which they could do this?" That is why we have the boilerplate text in there that is basically paragraph after paragraph of CYA.

Coming from the other side, the plaintiff, the lawyers operate in the mode of, "What is every possible legal recourse available to us and how can it be used to outspend, outmaneuver, or just plain beat down the defendant until they either give up or pay us truckloads of money?" You need to get it through your head that this is how lawyers operate. It's not personal. They are getting paid a LOT of money not to care one iota about you. If it weren't for at least decent lawyers, there wouldn't BE a City of Heroes, but just the same, if you do something that they feel isn't kosher, they WILL pull out every stop possible to get you.

Quote:

Originally Posted by Silver Gale I get that you're advising people to be cautious, but don't do so based on unsupported fearmongering.

"Unsupported fearmongering?" Have you seriously never read about a nasty, ugly IP lawsuit? You know, IP lawyers are among the highest paid in the industry, and for good reason. In particular, these waters--IP rights as specifically related to EULAs--are largely legally untested, but courts have consistently been very friendly to EULAs, even the "click-through" kind. If the OP is very, very rich and is looking for a fight, then I'd say go for it, damn the torpedoes, to hell with the consequences. As it is though, he sounds like an average guy who wants to make a mark in media outside the game. The cost of dealing with an IP lawsuit or having a lucrative contract yanked away from you because your publisher finds out that you're on shaky legal ground with your IP rights is not just fearmongering, these things have and do happen.

I stand by my strong suggestion that the OP not pursue this. Create some new original characters and have at it, and keep your game characters completely separate.