Another great weblog entry from our ‘correspondent’ in the United States, Andrew Jankowich.
The Marvel comic book company, well-known for its characters like Spider-Man, the Hulk and the X-Men, has sued NCSoft Corp. and Cryptic Studios, Inc. the companies that designed and run the City of Heroes video game. You can read Marvel’s legal complaint here.
City of Heroes is a Massively Multiplayer Online Role-Playing Game (MMORPG). MMORPGs are something like sophisticated online versions of Dungeons and Dragons where players can create their own characters and interact with other players online. Players help to create the course of the game and the game worlds persist and change even while a player isn’t participating. MMORPGs are therefore a good deal more sophisticated than traditional video games – so much so that games like this are sometimes referred to as ‘virtual worlds’.
The problem with City of Heroes, according to Marvel, is that when players are creating their characters the instructions and prompts lead them to create characters that infringe Marvel’s copyright. For example, in their complaint, Marvel alleges that using the software a player “can just as easily create an infringing clone of The Incredible Hulk by choosing the ‘Science’ origin, the ‘Tanker’ archetype, and the ‘huge,’ ‘muscular,’ ‘indestructible’ and ‘powerful’ characteristics. All that is left is to paint the character green, give him short pants that reflect his enormous change in size (a defining characteristic of The Incredible Hulk) and assign him a name.”
Some commentators have noted that Marvel is suing NCSoft for contributory infringement. In other words, Marvel claims it is the players who are doing the actual infringement. Fred von Lohmann of the Electronic Frontier Foundation thinks this shows that companies are trying to carve out control over people’s imaginations: “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?” (For the full text of von Lohmann’s essay go here).
One difference is money. Although City of Heroes is being sued for contributing to copyright infringement it is the fact that the game itself makes money (you pay US $39.99 for the software to get started and then a monthly subscription charge of US $11.95 – US $14.95 for as long as you play the game) that drew Marvel’s attention. City of Heroes isn’t just about ‘playing in the backyard’ – City of Heroes is charging monthly fees for the right to ‘pretend’ in their neighborhood. And Marvel, whose fortunes have swung wildly, is on something of a roll in turning their characters into movies – with Spiderman and the X-Men notable successes.
Von Lohmann suggests that this case has some pretty scary implications. “Those who want to appropriate characters and objects from their favorite movies, comics, games or television shows,” he says, ‘Will be limited to virtual worlds either operated or licensed by the corporations that own those cultural objects. If they want to mix and match characters and genres, they will be hunted down and deleted, either by the rights holders themselves or by MMO operators deputized by fear of secondary liability. In essence, the open-ended universe of MMOs would be reduced to a limited set of tightly controlled theme parks. All this, thanks to the censorial side of copyright and trademark law.”
But this isn’t too different from the current state of affairs where you can’t make and sell your own Spiderman vs. Batman movie. What this means is that the idea of a ‘metaverse’, a universal MMORPG, where anyone might participate in one giant environment rather than in separate games might never develop. It looks like a universe of separate MMORPGs rather than a metaverse is the likely result.
Copying in the comic book genre is not new. Marvel’s character, Mr. Fantastic of the Fantastic Four, for example, is a super-stretchy superhero just like DC Comic’s much older character, Plastic Man. And much like Elastigirl in the excellent recent superhero cartoon movie, The Incredibles. And of course the Hulk is a literary descendant of Dr. Jekyll’s destructive alter ego, Mr. Hyde. So the question of how similar superheroes can be might be a more complicated one than Marvel anticipates. Perhaps Marvel will back off when they recognize that the key to an original superhero can depend on only a few minor details.
