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Out-Law News 2 min. read

Marvel struggles in lawsuit over superhero game


Marvel Enterprises has suffered a partial defeat in a trade mark and copyright infringement suit against the developer and publisher of City of Heroes, an on-line multiplayer game in which subscribers create their own superhero characters.

On Wednesday, Los Angeles Superior Court Judge R Gary Klausner dismissed more than half the claims brought against developer Cryptic Studios and publisher NCsoft, according to the two firms. But some important copyright claims survived the purge.

City of Heroes is set in the aftermath of an alien invasion on a virtual world known as Paragon City, where villains and mutants battle users in the guise of superheroes – guises that they design themselves from a huge array of features, costumes, characteristics and skills.

Marvel Enterprises, the force behind Spider-Man, The Incredible Hulk and The X-Men, is concerned that this design feature allows subscribers to copy its comic book characters, thus infringing its copyright and trade marks, and potentially affecting its ability to license the characters into other video games.

It sued in November, seeking damages and an injunction, on the grounds that the characters, while developed by subscribers to the game, are created on servers run by both NCSoft and Cryptic Studios.

However, according to the two defendants, Judge Klausner last week agreed that some of Marvel's allegations and exhibits should be dismissed as "false and sham" because certain allegedly infringing works depicted in Marvel's pleadings were created not by users, but by Marvel itself.

The judge dismissed more than half of Marvel's claims against NCsoft and Cryptic Studios, including claims that the two firms directly infringed Marvel's registered trade marks and are liable for purported infringement of Marvel's trade marks by City of Heroes' users.

In addition, NCsoft and Cryptic Studios said the judge dismissed Marvel's claim for a judicial declaration that defendants are not an on-line service provider under the Digital Millennium Copyright Act.

All these claims were dismissed without leave to amend, meaning that they cannot be re-filed.

However, according to news site GameSpy.com, Marvel's most serious allegations, relating to copyright infringement, have survived.

"We're very happy with the judge's ruling because he upheld every one of our copyright infringement claims," said Marvel's general counsel, John Turitzin.

But NCsoft and Cryptic Studios say that they are pleased with the result so far and say they are confident of victory.

The judge has apparently already cited a Supreme Court ruling in a case over Sony's Betamax video recorder, which in the early 1980s was said to infringe on the copyrights of TV and movie studios. Sony won that case because the machine also had significant non-infringing uses.

According to NCsoft and Cryptic Studios, Judge Klausner noted, "it is uncontested that defendants' game has a substantial non-infringing use. Generally the sale of products with substantial non-infringing uses does not evoke liability for contributory copyright infringement."

The judge said there is only contributory infringement "where a computer system operator is aware of specific infringing material on the computer system, and fails to remove it".

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