Fred Von Lohmann is a bit put out that Marvel Enterprises Inc. have decided to sue NCSoft Corp. and Cryptic Studios, the operators of an online game called "City of Heroes."
"Marvel's complaint is premised on the notion that NCSoft and Cryptic should be held responsible for the infringing activities of the players in the game. According to the complaint, the players are infringing Marvel's copyrights and trademarks by creating characters that are recognizable copies of Marvel characters, including Wolverine and the Incredible Hulk.
Yes, you read that right -- Marvel's claim is based on the idea that private individuals who pretend to be Wolverine for fun in a video game are breaking the law. Since when is it illegal to pretend to be your favorite superhero? Should parents be policing their kids, lest they be caught "pretending without a license"? Were all those drawings of the X-Men on grammar school notebooks evidence of infringement? And what about all those homemade superhero Halloween costumes...
Why are everyday expressive activities in the real world -- such as joining some neighborhood kids in the backyard for a bit of superhero role playing -- suddenly exposed to the depredations of copyright and trademark lawyers when they move online?
Marvel's assertion of copyright and trademark rights over the noncommercial expressive activities of its fans is both unprecedented and unnecessary. The fundamental justification for copyright is that we must tolerate a limited statutory monopoly on expression in order to secure an adequate incentive for the creative industries. That's an adequate incentive, not the maximum conceivable incentive. Trademark law, meanwhile, is meant to protect the public from confusion in the marketplace for products and services. Measured by these yardsticks, Marvel's claims fall short. Does anyone believe that Marvel will fire its authors and close up shop if it can't prevent little Johnny from pretending to be Wolverine online? And no one is going to be confused into buying something by mistake when they run into another player in-game who has adopted the green skin and purple shorts of the Hulk.
On the other hand, if the court accepts Marvel's notion that playing Wolverine or the Incredible Hulk online is unlawful, you can expect a chill to spread through all the MMO universes. Rights holders will begin insisting that MMO operators police their games for unauthorized elements -- robots that look too much like C3PO, uniforms that look too much like Captain Kirk's, haircuts that mimic Bart Simpson's, in-game face paint that evokes KISS, or blonde vampire slayers named Buffy."
Fred does work for the EFF and as such will have some pretty strongly held views on the notion of over expansion of intellectual property but he makes a strong argument here. Why are everyday activities, such as reading a book, exposed to apparently daft complications e.g. restrictive licences saying they "cannot be read aloud", just because that book is published in an ebook form?
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