[Themed TF/SF Saturdays]

On 3/18/2023 at 1:57 PM, TrixieKixx said:

Apr 1 - Posi 1 & 2 (Level 8-15 and Level 11-16 – Blue Side: Steel Canyon) All Blaster Team - Fruit Pies…costume to reflect your favorite fruit pie

 

I hope to be there this weekend with a (mostly) new blaster too - Brambleberry - Energy/Martial

[Themed TF/SF Saturdays]

Haha, that's great Ban!  I'm actually also going with a Lego-inspired character this week, but as that blue wizard fig in the old Knights set.

 

On 3/18/2023 at 1:20 PM, TrixieKixx said:

Mar 25 – Tree of Thorns Respec #2 Trepsarciel (Level 34-43 – Red Side: Nerva Archipelago) – Favorite Toy from your Childhood (costumes) - Any AT

 

(Alichino - Demon/Pain MM)

[Themed TF/SF Saturdays]

39 minutes ago, TrixieKixx said:

Mar 18 – Tree of Thorns Respec #1 Sparcetriel (Level 24-33 – Red Side: Nerva Archipelago) – Just Clowning Around (Clown costumes!) - Any AT

 

I plan on bringing my demonic jester Alichino - Demons/Pain MM.

[Themed TF/SF Saturdays]

12 hours ago, Midnyte said:

Umber, that's an awesome name with your powersets. So clever! 👍🏼

 

Thanks!  I was just temporarily renaming my character "Blarney Stone" but with the name taken I went for the more Celtic version.  I'll revert it to the normal name afterward, so that name will be free for use.

[Themed TF/SF Saturdays]

On 3/4/2023 at 3:23 PM, TrixieKixx said:

Mar 11 – Katie Hannon (Level 30-34 Blue Side: Croatoa) – Luck o' the Irish! All green costumes - Any AT 

 

I hope to be there this week with Cloch na Blarnan - Stone/Fire Tank

[Themed TF/SF Saturdays]

On 2/18/2023 at 1:07 PM, TrixieKixx said:

Feb 25 – Mortimer Kal (Level 20-40 – Red Side: Sharkhead Isle) – All VEAT Team – Spy (sinister) costumes!

 

I hope to bring Veneficio - Crab Spider.

[Themed TF/SF Saturdays]

58 minutes ago, TrixieKixx said:

Feb 18 – Ernesto Hess (Level 25-30 – Blue Side: Striga Isle) – All Kheldian Team – Your choice of costume

 

I plan on bringing Eury (Peacebringer)

[Themed TF/SF Saturdays]

Thanks for the fun photos Midnyte.

 

4 hours ago, TrixieKixx said:

Feb 11 – Virgil Tarikoss (Level 15-20 - Red Side: Cap au Diable) – All Controller/Dominator Team – Fallen Angels/Enlightened Devils costumes (Valentine's colors!)

 

I'll bring Kataigis (Elec./Storm Controller)

 

On 2/4/2023 at 4:41 AM, Bananiac said:

Hope you can make it! Would love to see your Plants Lizard! Is that a name you just created for this theme, or is it "original"?

 

Thanks!  The name and costume were a creation just for this theme.  I've reverted her back to her usual costume and name, so it's all up for grabs for whoever may want it.

[Themed TF/SF Saturdays]

On 1/28/2023 at 3:37 PM, TrixieKixx said:

Feb 4 – Ms. Liberty (Level 45-50 – Blue Side: Independence Port) – Any AT – Know Your Scales (Reptile Costumes)

 

I'm not totally sure I'll be around tomorrow, but if I can, I'll bring Leaf Lizard (Plant/Psi Dominator)

[Themed TF/SF Saturdays]

On 1/21/2023 at 3:27 PM, TrixieKixx said:

Jan 28 - Ice Mistral (Level 35-40 – Red Side: St Martial) - All Ice Powers (at least one power must be icy!) - Icy costumes to match!

 

I'll try to bring Horrere (Sonic/Cold Corr.).

 

 

On 1/22/2023 at 12:04 PM, Bananiac said:

That one mission, where Umber ghothed it right into the triple ambush...

 

Haha, thanks for the pictures and fun commentary.  I really didn't notice the ambush switching back and bearing down on me until an unlucky hit dropped my stealth in the middle of two groups I was looking at.

[Themed TF/SF Saturdays]

I'll try to bring Caedes (DB/Nin Stalker) next week.

 

4 hours ago, Midnyte said:

Nytemayre is a relatively new toon, and although I have a level 50 crab spider, I don't feel like doing the build switcheroo, so wanted to have a whole new character for my bane spider. Plus there is that costume glitch with the spider legs. She got from 21 to 27 in the TF so know can do her bane path respec. 

 

Banes are a little odd. I like mine a lot, but building him was something I did from 50 rather than leveling up.

[Crossing the copyright line….]

8 minutes ago, Captain Fabulous said:

You and I don't get to decide what is fair use and what isn't. That's up to a court to decide. The unfortunate truth is that most entities do not have the resources to fight billion-dollar corporations in court, even if they are in the right. Which is why once a C&D comes it's over, even if you're 1000000% sure it's fair use. Court cases very frequently don't end the way people expect them to.

As for the 3 statements in that last paragraph: Wrong, not necessarily, and highly unlikely, in that order.

 

Fair point.  It would be up to the court to make the determination, and it is not perfectly cut and dry.  (Otherwise, how would lawyers get their fees?)

 

With regards to that last paragraph, I should amend the first, but I stand by the second and the third:  courts can certainly be grumpy when it comes to lawyers wasting their time on frivolous cases so a Rule 11 sanction is most definitely a looming threat to consider, and a lawyer absolutely can get disbarred for repeatedly receiving Rule 11 sanctions (admittedly, one alone would not be enough).

[Crossing the copyright line….]

5 hours ago, Excraft said:

So dressing up as Superman and going to a comic con to run around and pretend to be Superman is ok because it isn't commercial.  Drawing a picture of Batman and posting it on your art site for free to share your artistic talent with others is ok because it isn't commercial.  Creating an homage in a defunct video game on a pirate server where there's no money being taken for profit and isn't being used for commercial purposes isn't ok?  Give me a break. 

 

Isn't someone making a character here for "personal rather can commercial" purposes?  If you're cosplaying as Iron Man at a comic con or cosplaying as Iron Man here in game, what's the real difference?  Why would Disney ignore one non-commercial thing and not another?

 

Respectfully, you misunderstand me.  I'm not saying "fair use" applies in your examples but not to Homecoming.  In fact, I do not wish to comment on Homecoming and the legalities involved.  Instead, I was commenting on how "fair use" works in your examples and, perhaps, share my knowledge of it.  "Fair Use" is a codified carve-out for using copyrighted material without having to get a copyright holders permission.  Whether something is "fair use" depends on the following four factors:

 

1) the purpose and character of use, specifically whether for commercial use or for personal, educational, or nonprofit use;

2) the nature of the copyrighted use;

3) the amount or substantiality of the portion used in relation to the whole of the copyrighted work; and

4) the effect of the use upon the potential market for or value of the copyrighted work.

 

If something is "fair use," then a copyright holder does not have a case.  So, you are a bit mistaken when you say:

 

5 hours ago, Excraft said:

Absolutely without question Disney or Marvel or DC can hand out cease and desist letters to every cosplayer out there entering a con or posting photos of themselves online.  It may or may not be fair use, but that doesn't mean Disney can't sue people and take them to court for it.

 

To the extent that it is clearly fair use, then the copyright holder cannot should not sue people and take them to court over it.  Or, to be pedantically more accurate, a copyright holder could file a complaint, but [assuming it is a bogus complaint] the complaint would likely could be dismissed on summary judgment, and the lawyer who filed the complaint could be Rule 11 sanctioned for knowingly bringing a frivolous case before the court (which in turn could lead to that lawyer's disbarment [after enough infractions]).

[Crossing the copyright line….]

6 minutes ago, Captain Fabulous said:

It blows my mind that we're just NOW getting to the point where TALKIES are in the public domain. It's so ridiculous.

 

It is kinda crazy, even more so when you realize there are certain films that entered the public domain because they weren't registered when the U.S. copyright law changed in the 1960s/70s.

[Themed TF/SF Saturdays]

Thanks for the great pictures, Midnyte.

 

I'll try to bring Cattle Call (Sym./Thermal Controller) this week.

[Crossing the copyright line….]

5 minutes ago, Excraft said:

However, like I keep suggesting, the house of mouse could have their "tons of lawyers" standing at the front door of every comic con in the world handing out cease and desists to every single cosplayer walking through the door, especially to those making zombie or overtly sexualized versions of their intellectual property.  Those are easy targets, yet they don't do it.  They could shut down every website that hosts a piece of art drawn by a fan being shared for free, but they don't.  They could go on an a rampage to shut down every site offering a free skin of Disney/DC/Marvel characters for Minecraft or Roblox or the Sims or whatever else.  But they don't.  Absolutely they can do all these things.  I think it safe to say it's just not worth their time or effort, much like going after a rogue server running a stolen copy of a 20 year old game generating zero profit would be because someone made a Captain America or Iron Man clone. 

 

At the risk of dog-piling a bit, I think you are mistaken on a couple of things here.  I suspect that some of your examples would fall under the "fair use" carve out for copyrights.  Cosplayers are dressing-up for personal rather than commercial* purposes; they are possibly dressing-up as non-copyrightable** characters, or at least, they are not using the heart of such characters' copyright; and their dressing-up may in fact be sufficiently transformative.  Similarly, free fan art would also be personal rather than commercial, and an artist's personal rendition may very well be transformative.  A "free skin" offered in a video game could have been licensed and paid-for by the game maker/publisher so you are running a bit into a different area there.

 

So, I'm not sure your examples really demonstrate that "Disney/Marvel/DC/WB/HBO or any other IP holder" have better things to do than shut-down this game through a simple DMCA notice to Homecoming or, perhaps more likely, the server-hosting company for the game.

 

 

* I do realize that some people make money off cosplaying, but I don't think you could know that just standing at the door of a con.

** Technically, not every fictional character is copyrightable so it may very well depend on who is being depicted

[Crossing the copyright line….]

So, partially inspired by this topic as well as so other posts on the forum, I decided to write a guide to US IP law:

 

But, to the OP, if you see a character that's a blatant infringer, reporting them is certainly not a bad idea.

 

Also:

 

On 1/6/2023 at 7:07 PM, srmalloy said:

You can blame Disney and the Mickey Mouse Perpetual Protection Act Sonny Bono Copyright Extension Act. I don't know how the argument would hold up in court, but the way that changes to the term of copyright have been applied retroactively to works already created and under copyright would seem to me to be a violation of Article 1, § 9 and 10, which prohibit Congress and the states from passing any law that applies ex post facto. Under this reasoning, there is no impediment to passing a law extending the term of copyright, but the term of copyright for already published works wouldn't change -- if you publish a work when the copyright term is 28 years, extendible for another 28 years, then a year later Congress passes a law extending copyright to 1000 years, your work still enters the public domain a maximum of 56 years after publication.

 

 

There's a an actual case addressing this:  https://en.wikipedia.org/wiki/Eldred_v._Ashcroft.

[A Short(-ish) Guide to U.S. Copyright and Trademark Law]

Introduction:

 

Intellectual Property (IP) holds a place of personal and professional interest to me.  And, after a number of topics/posts concerning copyright law and trademarks in the forums, I thought I could make something of a reference guide for other players who might have questions on the topic.

 

That said, a few disclaimers:

 

First, I am going to try to keep this guide as legally factual as possible.  I am NOT trying to provide legal advice or opinions.  Rather, I am trying to provide a consolidated and clear guide to publicly available information regarding U.S. IP law.

 

Second, although I am a lawyer, I am NOT your lawyer. I do not know the facts of your circumstances.  I am not representing you, commenting on specifics circumstances, or custom tailoring the information provided.

 

Third, this guide does not overrule a Dev or GM in an argument over whether you are in the right or in the wrong.  Indeed, they may be operating on much better and more specific guidance.

 

With those points in mind let’s get started.

 

Copyright:

 

I. Subject-Matter

 

Copyright is a constitutional right granted under Article 1, Section 8 of the U.S. Constitution, which grants copyright holders the exclusive rights to their works for limited duration.  These rights include making copies, distributing, performing, displaying, or making derivative work(s) of that copyrighted work. 

 

The copyright holder is not only the creator of a copyrightable work but also the employer of that creator (such as a corporation) if the copyrightable work was a “work made for hire.”  A “work made for hire” is, under 15 U.S.C. §101, any work specially ordered or commissioned for use as a contribution to a collective work or as a supplementary work if the parties expressly agree in a written instrument signed by them (i.e., a written contract) that the work shall be considered a work made for hire.  This means that, if an employee of a corporation or an independent contractor for a corporation makes a copyrightable work within the scope of their employment with that corporation, then that corporation is a copyright holder for that work.

 

Currently, a copyright lasts for the lifetime of the author plus an additional 70 years; if the work was a work for hire, then copyright lasts for 120 years after creation or 95 years after publication, whichever is shorter.  After that duration, the copyrighted work enters the public domain and no longer is able to be used exclusively by the copyright holder.

 

Under 15 U.S.C. §102, copyright is given only to “original works of authorship fixed in any tangible medium of expression now know or later developed.”  Copyright does not extend to functional, utilitarian works.  However, the aesthetic part of something is copyrightable if it can be “physically or conceptually” separated from the utilitarian part.  Otherwise, the features are “inextricably intertwined” with the utilitarian function of the article and are not conceptually separable, and thus, not copyrightable. 

 

Moreover, copyright does not extend to ideas themselves but only to their expression.  Under the merger doctrine, a subject matter that can only able to be expressed in a limited number of ways cannot be copyrighted.  Similarly, under the scenes a faire doctrine, scenes or aspects that are indispensable to a type of story or are otherwise standard expressions cannot be copyrighted.  Of particular importance, the court noted the distinction between “stock” characters and “distinct” characters within a creative work.  In Nichols v. Universal Pictures Corp., the court recognized that if every fictional character were copyrightable - regardless of whether that character is fully developed or merely a trope - then copyright protection would operate contrary to its intended purpose by hindering creators from making works of art or literature.  Instead, a copyrightable character must be distinct and specific.  Further, in Warner Bros. Pictures v. Columbia Broadcasting System, the court suggests that a character is copyrightable only if that character is essentially the story being told, and not if that character is just a means for the story to be told.  And, finally, a character having been visually depicted can have some bearing on whether that character is distinctly delineated and, therefore, copyrightable.  In Walt Disney Productions v. Air Pirates, the court granted copyright protection to Disney’s characters (including Mickey Mouse and Donald Duck) because those characters had visual representations that distinguished the characters, noting that “it is difficult to delineate distinctively a literary character . . . [w]hen the author can add a visual image, however, the difficulty is reduced . . . a [visual] character, which has physical as well as conceptual qualities, is more likely to contain some unique elements of expression.”

 

(Sidebar: there’s a good deal of ink (bits?) to be spilled on the topic of a character’s copyrightability since there is not definitive U.S. Supreme Court case on the topic and since many copyright holders have spent a great of money to protect their intellectual property.)

 

II. Infringement & Fair Use

 

Under 15 U.S.C. §106, someone infringes when the (i) work was copied-in-fact and (ii) the copying constitutes improper misappropriation.  Whether a work was “copied-in-fact” is shown through direct evidence - a watermark or the like - or circumstantial evidence - the accessibility of the copyrighted work and the similarity of the infringing work.  Accessibility and similarity counterbalance each other, with more similarity reducing the need for accessibility, and more accessibility reducing the need for similarity.

 

Under the fair use doctrine, however, copyright infringement is allowed so long as it was for a “fair use.”  “Fair use” is codified in 15 U.S.C. §107, and it is evaluated based on four factors:  1) the purpose and character of use, specifically whether for commercial use or for personal, educational, or nonprofit use; 2) the nature of the copyrighted use; 3) the amount or substantiality of the portion used in relation to the whole of the copyrighted work; and 4) the effect of the use upon the potential market for or value of the copyrighted work.  In Harper Row, the Court did not grant “fair use” to a factual news story based on the unpublished work of another because, although only a small portion of the unpublished copyrighted work was used, the “heart” of the unpublished work was used.  However, in Campbell v. Acuff-Rose, the Court allowed the copying of a copyrighted song melody to the extent that the melody was sufficiently “transformative.”

 

 

Trademark:

 

I. Subject-Matter

 

Under the Lanham Act §45, 15 U.S.C. §1127, a “trademark” includes any word or name used by persons in commerce to identify and distinguish their goods, including a unique product, from those manufactured or sold by others as well as to indicate the source of the goods.  A trademark lasts for as long as the trademark is actively used in commerce (hence, the "use it or lose it" concept).

 

Moreover, under Lanham Act §2, 15 U.S.C. §1052(e), a trademark is defined as a mark that is not merely descriptive of the goods upon which it appears.  As described in Qualitex Co., a potential trademark is classified as (i) generic, (ii) descriptive, (iii) suggestive, or (iv) arbitrary or fanciful.

 

A generic trademark is one that connotes the basic nature of a product rather than any individualized characteristic of the product, and such a mark will not receive protection.

 

A descriptive trademark is one that only identifies a specific characteristic or quality of a product, and such a mark ordinarily would not receive protection.  However, even if the trademark is only descriptive, such a mark would receive protection as long as it has acquired a secondary meaning.  A secondary meaning is when the trademark primarily invokes the producer rather than the product in the consuming public.

 

A suggestive trademark is one that suggests - rather than describes - a specific characteristic or quality of a product, and such a mark receives protection.

 

An arbitrary or fanciful trademark is one that bears no relationship with the product to which it is applied, and such a mark will receive protection.

 

A mark is not protectable if it is likely to cause confusion with an existing mark with “priority.”  To establish priority, the owner must either use the trademark in commerce or register the trademark with the U.S. Patent and Trademark Office for the intent to use it in commerce.  The filing of the application, so long as the mark is later accepted and registered, is constructive use, nationwide in effect, to establish priority against similar marks.  The certificate of registration is “prima facie evidence of the validity of the registered mark.”  Registration itself is constructive notice of claim of ownership, and the trademark receives national protection.

 

II.  Infringement

 

Under Lanham Act, 15 U.S.C. § 1114, trademark infringement occurs when the infringing mark appears in commerce despite the infringer knowing that doing so will likely cause confusion among consumers trying to distinguish between the two marks.  Courts evaluate the likelihood of confusion based on the relationship between the goods upon which the marks appear.  When goods are related and compete for sales, courts will usually find infringement if the marks are “sufficiently similar that confusion can be expected.”  But when the goods are totally unrelated, courts will not find infringement because confusion is unlikely.  However, when the goods are related but not clearly competing for sales, courts use a multi-factor test (varying by jurisdiction).    These factors include, among other things:  (i) the strength of the mark; (ii) the similarity between the parties’ marks; (iii) the competitive proximity of the parties’ products; (iv) the potential customers’ likely degree of care; (v) the intent of the infringer to pass off his goods as those of the trademark holder; and (vi) evidence of actual confusion.

 

 

And that's it.  I may edit or add to this as time goes on.  But for now, I hope this helps outline some of the basics of U.S. law regarding copyright and trademark.

[Themed TF/SF Saturdays]

I hope everyone had a happy holidays!

 

I'll try to be there tomorrow with Amentia (WM/Shield) or Corrodens (Rad/Bio).

[Themed TF/SF Saturdays]

3 hours ago, Bananiac said:

 

It sounds reasonably german, although I don't know any place called Wolferborn 🙂 

But hey, are we talking realism in things like this? If it sounds good to you, you are not off. And I like the Goethe reference!

 

 

I'm glad it mostly works.  The character is headless/pumpkin-headed so he got a Hessian name (I think?) in a reference to "The Legend of Sleepy Hollow."  The overlap with Goethe/Marlowe is just further geekiness on my part.

[Themed TF/SF Saturdays]

I'll try to be on with Faust von Wolferborn* - Axe/Dark Scrapper

 

*I don't know German/German geography so sorry in advance if this is a bad construction

[Themed TF/SF Saturdays]

Not sure whether I'll be able to be on tomorrow.

 

If I somehow am, I'll bring Philodendra - Plant/Psi Dominator.

[Themed TF/SF Saturdays]

Definitely!

 

Do Space Pirates count?  I'll bring Vim (Warshade).

 

 

Addendum: If we're short on support I can also run with C. Abyssus, Water/Sonic Corr.

[Officially Unofficial Weekly Discussion #2: Newspapers/Radios/Etc Repeatable Missions and Chaos?]

I may be a bit late to comment here but here it goes.

 

Mostly my experience has been with Paper/Mayhem Missions.  I think they work pretty well. My only gripe is that a number of low-level enemy groups, like Skulls, Outcasts, Trolls, etc., are absent or rarely encountered.  Although this is partially balanced by having redside specific gangs, like Snakes or Goldbrickers, those groups oversaturate  paper missions and can overstay their welcome.

 

I really don't have much in the way of experience with Radio/Bank missions.  They don't feel well integrated to the Blueside progression. And bank missions seem to be pretty much skipable save for the badges.  At the same time, I'm not sure how one could change radios without having an uproar from people who do PI radio missions predominately.

[Themed TF/SF Saturdays]

4 hours ago, Bananiac said:

How about making this theme "Robots against Hydras"? Show up with your best Robo-Outfit, Automaton, Mecha, Robotics Mastermind or with Robos Lore Pets!

That should be easy enough to implement on this short notice.

 

I will be there tomorrow with Droidica MK2, my All-Arrows-Blaster, and see who shows up 🙂

 

 

I'll try to give this a shot. I can bring Saxum, a robotic brick (Stone/Fire Tank).

 

But, to set expectations, we'll definitely need to fill to get enough folks to complete. I'm not sure we could do it we only a few.