How do you keep a copyrighted name?

I think, in this case, Marvel would technically be infringing on NCSoft. More to the point, if said Marvel writer one day decided that he liked his CoH character so much that he wanted to add it, background, looks and all, to the X-Men roster, this would be an infringement against NCSoft.

As for what NCSoft would do about this kind of case, were it ever to be discovered, I don't know. I'd guess option D above: Do nothing, but prepare evidence in case Marvel ever makes noise about it (or anything else for that matter, counter-suing is always fun).

Your example would be result C)

Your Hercules is based entirely upon the historical mythology and his appearance is, you say, based upon statues and paintings of the historical conception of Hercules.

You can't claim any of that at all. Marvel can make a character that is technically exactly the same because you wouldn't be able to trademark any part of your character at all. You even remembered that he uses a big wooden club. This is why Marvel Hercules looks so different from a 'proper' version of him; so he can be trademarked (and HE uses a big metal mace). Same reason the DC Hercules also looks....nothing like he 'should'. Marvel can try trademarking their version of Zeus (the beardy, white robed kinda thing anyway)....it ain't gonna work. He looks exactly the same as Zeus as depicted in centuries of art, which is based upon the mythology itself.

As for the rest of us....well yeah, it would be a case. NCSoft do own all our characters. If Marvel or DC tried running with a significant character obviously lifted from here, they could be slapped with it. If it's a small infringement....eeeeh, no point really; being pissy about something small enough to be a fun little cameo or homage would be Very Bad Form because....everyone likes having fun little cameos/homages because they're fun for everyone. Don't mess that up. Plus, if it's a small, irrelevant character there's the defense of ignorance. We throw out a hell of a lot of heroes on our servers and it's entirely unreasonable to expect an artist adding in some background filler to know about all of them and never, ever accidentally create something shockingly similar.

That was another argument for why marvel's suit was problematic. Some argued that, if works in game were equitable to marvel's published works, then shouldn't every fan-created costume likeness in-game be off limits to Marvel, as its someone else's creative work?

1) Cende is not a registered trademark, so the character and likeness are not protected under trademark law. If someone has drawn said character (say, over at DeviantArt) and Marvel's likeness bore a very strong resemblance to that, then the deviantartist may be able to claim it as an infringement. it would have to be a distinctive enough likeness though that it would be clear that the most likely reference source was that deviantart work, though. Simply making a character clad head to toe in blue spandex doesn't grant you exclusive rights to blue-spandex-clad appearances.

2) If Cende's backstory started appearing in Marvel's work, then there's a copyright issue here. Its unlikely to be a LITERAL word-for-word coyright violation, though... which is the most clearcut version of a violation, but if the backstory is similar enough in distinctive places, along with the name (and likeness) then again, the copyright case takes form. These are tough to prove, though, and expensive to litigate.

Look into the copyright disputes between "the lion king" and the 1960's "kimba the white lion" for an excellent example on such a dispute.




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Also note that similarities do happen in totally independent work:

While deployed to the Gulf (1990-1991) I'd waste much guard duty thinking up NPC's for a superhero RPG world I hoped to GM when I got back home. After duty, I'd jot down the ideas and mailed many of them back to a friend I was collaborating with. He's still got the letters.

One of them was a white-clad lass with powers of limited intangibility, invisibility, and flight. For some combat prowess she relied on her firearms. Named Ghost. I wanted a scotish surname and couldn't think of any, so I used "Cameron" from a battletech sourcebook I had with me. Lisa Cameron.

Anyone familiar with Dark Horse Comics' Ghost should note the similarities, down to the name (Elisa Cameron). There's always a chance that I somehow saw an early work of their character, but everything I've found online says she first appeared in '93. There's no way anyone else saw my letters, so they obviously didn't use my work, but to this day, I'm ridiculously possessive of the character (now named "fenore" - scot for a "white ghost").

I never did get to play that world. My friend eventually did run it through the later 1990's. It was set in Paragon City (Paragon, NJ- formerly "Atlantic City") and one of the big international-super-agencies there was the "Vanguard Syndicate."

I cannot speak for NCSoft's legal team. However, lets take a step back and discuss what actually happened here.

1. A Marvel artist *sees* your character, and reproduces *its look* in a Marvel comic book.

All of the art assets within this game are owned by NCSoft. So that's a direct violation of the intellectual property of NCSoft, to the extent that they can assert copyright on those assets. They can't copyright a white number 3 on someone's chest, but the specific design of tops, pants, sleeves, and other geometry and textures are individually copy protectable. If those are infringed upon individually, NCSoft can sue for copyright violation on that basis.

2. A Marvel artist sees your character and copies your specific combination of those art assets into a single visual character design.

That's a bit of a grey area. To the extent that your work in using those items in a unique design are copyrightable, *you* have a separate distinct right to sue Marvel independent of NCSoft. NCSoft does not own your creations. This keeps coming up. The EULA asserts a non-exclusive, unlimited license to use your creations. In effect your creations are collages under copyright law: assemblages of other works. That assemblage is copyrightable. NCSoft gave you permission to use those works within the game so you haven't violated their rights. You *would* violate their rights if you used those art materials *outside* the game. While you are extending them a license to use your character work any way they want, they aren't extending the same license to you. You own the work, but not its parts, and that limits what you can do with it.

Either way, you could sue Marvel. Your legal position would be somewhat weaker than NCSoft's, but the letter of the law supports your rights here.


3. Suppose the Marvel artist on top of that copied your character's backstory, ala Cende above.

Two part violation. Again: NCSoft doesn't own your characters, they only have a non-exclusive right to use them. You own what you type as a creator under US copyright law (I'm assuming US law for the purposes of this discussion, as I'm more familiar with that). You would have the right to sue Marvel if that work was infringed.

On top of that, your backstory *might* mention copyrighted content owned by NCSoft. If your backstory says you were experimented upon by Crey Corporation, for example, NCSoft owns that piece of intellectual property. If Marvel were to lift that without changing the names, NCSoft would have a separate right to sue (they'd combine the two infringements - the artwork and the backstory - to make an even stronger single case for the Marvel character infringing on NCSoft intellectual property).


Now, NCSoft would have a pretty good case here. You would have a very weak one under #2 but a stronger one hypothetically under #3. The reason is that it would be hard to prove damages under #2. NCSoft can, but you would have a harder time because you couldn't really use that character design with the specific visual look anywhere but in this game - because NCSoft hasn't given you the right to use it anywhere else. But if we extend the infringement to include #3, you'd have a stronger case because you don't need NCSoft's permission to take a backstory you wrote, and sanitize it of all references to NCSoft property, and reuse it elsewhere.


One more thing:

Specifically inside NCSoft's servers not much. Remember: your acceptances of the EULA grants to NCSoft the right to use your creations in any way they wish. That means if another player makes a character exactly like yours its entirely up to NCSoft whether to allow that to happen or not. You've given them the right to use your character, that right includes the right to allow other players to emulate it. I don't know what NCSoft's policy is on players directly copying other players, but I suspect its not barred conduct.

Why ask questions about it?
Get hired by Marvel and find out!

Hmmmmmmmmmm what an interesting little example you came up with. It seems to suit your purpose to a T and shows your obvious bias.

Anyway, I was hoping to have a discussion here. Lots of interesting theories but no official word etc. Unless an NC Soft rep actually chimes in, we cannot say for certain what is happening with policy.

I will admit I am disappointed with NC but it is only a game. My sub ends soon and I don't think I will be staying VIP. This naming non-sense along with tier 9 VIP rewards and the blah issues (they seem very uninteresting lately) have me debating the move.

I can almost guarantee it isn't.

If it were, the Super Groups who all wear the same uniform would be breaking a rule, and I've never heard of any of them being chastised or punished for it.

However, that doesn't cover the instance of someone copying your character's appearance without your leave. I suspect just as strongly as you that there's nothing you can do about it though.

The odds are actually pretty good of someone creating something that looks strikingly similar to someone else's character unintentionally, especially if a lot of brand new costume pieces are used. Would be kind of a dick move to punish someone for that.

Originally Posted by Dechs Kaison See, it's gems like these that make me check Claws' post history every once in a while to make sure I haven't missed anything good lately.

So I guess that means you won't be playing any MMO's anymore then. Because there isn't a single one that doesn't have and enforce a policy against copyright violations.

Buh-bye and can we haz ur stuff?

I remember the event of the person getting generic'd for Persil about 2 years after the game launched EU side. They had the name for since launch IIRC and where well known (at that point in time) on the forums as well... shame i cant remember what they renamed themselves to...

"Sith" is as you noted, a general foreign-language word, but as stated here quite a bit, TRADEMARKS can legitimately be words like that. TRADEMARKS are where the BIG risk is, as noted earlier, and Lucas does, indeed, have a registered mark of trade for "Sith" in quite a few fields, including video games.

Therefore, SITH would be quite legitimately genericed by the devs, regardless of whether you were trying to represent lightsabre-weilding sociopaths or a beautiful seductress fae.

BECAUSE neither Marvel nor DC were able to (or bothered to) Trademark the name.

You don't just take any 2-bit background character and register the name across all the various fields of the tradmark industry.
1) it takes money.
2) you have to actually show some use of that mark in trade to keep it,
3) sometimes the name is already in use in the industry you want so you can't reserve it, and
4) trademarking names is relatively new in comics (last decade or 2). Before that, you'd trademark titles, mostly... so it wasn't uncommon for comic companies to both use the same name for non-title-bearing characters. When the lawyers got involved and Trademark spree started, the existence of the same name in other publishers' arsenals often made the name too "broadly used" in the industry to trademark.

Not sure which applies to this case, but you get the idea.

I stand by it. If you actually wanted an official response, that's what the ticket is for. You could have kept this between yourself and NC, but you chose to post.
I also doubt you really wanted a discussion, which includes the possibility that people might disagree with you. No, you came here to vent and to whine about how you got genericed but you've seen someone else "get away with it" and how UNFAIIIIIIIIR it is, and to get sympathy.

And now you come back to announce that those grapes were sour anyway and you're going to flounce off in a huff. (Or maybe keep playing, but not give them any more money - that'll show 'em!)
I think this is where I'm supposed to ask for your stuff, but honestly, I don't want it.

1) we're piping in, and the devs are not, because this has been so over-addressed over the years. This is not a new discussion.

Asking for an official dev remark is a trap. The moment a dev tries to give a simple statement- something less complex than the policy that's more easily understood, some idiot starts using that simplified rule as if it was the real rule. Simple summaries rounds corners. the rules don't. The devs have the official policy, which can be read and reviewed. they'll refer to that and leave the debate.

2) If this leaves you with a bad taste in your mouth, say "goodbye" to MMO's in general. There's nothing particularly special about the policy here that you won't find in virtually every MMO out there. Anything that's generic'ed here for a trademark violation will be generic'ed elsewhere.

If so, to facilitate discussion how about you post screenshots of your Tombstone, Havoc, Sentinel, Wildcat, and Apocalypse characters so we can get a feel of how unjustly the genericizations were in your case?

Demanding dev responses is against forum rules.

Then again, so are threads discussing characters names being changed.

Consistency in enforcement of the forum rules has never been a strong point for any of the Community teams for this game.

I think it depends on how it's read. I see a discussion about how a rule works, and the guy gave examples.

That, and it hasn't gone into flame war hell yet.

As for Sith - I think that's one of the places were expect to get generic'd any time you use it, but if you want it, and it's referring to the fae meaning, go defend it.

We aren't going to keep his stuff. We'll have a contest and give it away as prizes to players whose characters don't violate copyright/trademarks.

Prepare to be disappointed with the result, though. A trademark issue really doesn't make a whit of difference for "meaning."

If a company has a word registered as a trademark in the field of computer/video games (and they do) then they could make things painful for NCSoft regardless of your use of the word. The mark of trade is all that matters, and the mark of trade is "Sith."


Now, it *could* be that, if Marvel's lawsuit on NCSoft had gone all the way to a judgement, the judge could have ruled that players using trademarks as monikers in-game doesn't constitute "potential confusion in the market" and it would be perfectly valid to use those names... but the sides settled, so we never got an official ruling.

Nobody really knows if this situation is an actual violation, they just know that they don't want to spend hundreds of thousands in legal fees (and a potentially damaging ruling if they lose) to find out.

(Heck, the judge could have decided that "players creating homage characters is akin to people cosplaying their characters at a convention, and not a trademark/copyright violation, allowing even that." ... or he could have decided that anything that could be assembled into a Marvel character had to be blocked by the devs. Seeing how damaging either of these would be to the respective parties, is it any wonder they agreed to a closed settlement?)

Classic.
Since you don't like how names are handled, it's "non-sense".

Sounds more like you were looking for people to pat you on the back and tell you it's all right, that NC is a bunch of meanies picking on you while you cried in your beer.

If "this naming non-sense" (IE, "I can't keep ripping off other peoples names" - after all, you've said you have had not just one, but several genericed characters) is enough to make you leave, you're just looking for an excuse.

Don't. If you're that burned out or uninterested, just go. Why keep yourself somewhere you're not enjoying yourself?