That is incorrect. Costumes and even uniforms can indeed by trademarked, as long as they maintain a legally distinct nature to them. Therefore uniforms such as your favorite fast food franchise gives to their employees would likely be trademarked, but the standard grey-green overalls found on your typical mechanic at an autobody shop likely will not be. For more info, I've provided a link below.
Remember the old days when the comic companies would include an image of the character on their cover somewhere, like a tiny full body portrait with the trademark and copyright symbols? That meant that the image was protected both as an individual whole piece of art (even if it was small) as well as displaying the full likeness of the character, the likeness being the trademark at issue. Imitate at your own risk, because they were sending a message. Symbols were also popular in those corners, as were --eventually-- the corporate logos of Marvel & DC. Now in my original post above, I said that some names could not be trademarked, such as Thor. And that remains true. To circumvent this, in the old days Marvel used to throw adjectives that made the names sound even more dynamic, but it was also a loophole for characters like Thor. So while Marvel cannot own a trademark on the name Thor, the absolutely could own a trademark on the full title, "The Mighty Thor."
NCSoft set up the clause regarding having rights to the characters we made on their servers specifically so that they could use in-game footage or screenshots of gameplay from anyone at anytime without having a player come back at them and insisting that their own idea (or ideas) was used, insisting that they get a payout since NCSoft is using their intellectual property (characters created in game) to make more money without reimbursing anyone for doing so.
Looks like I'm not the only one who knows what's what. 😎
This is actually a grey area at this time. In the past on the original Live servers, what you are proposing was not only not frowned upon, it was even encouraged. Case in point the COV content that essentially makes your hero part of Arachnos, as well as providing certain resources (like NPC chest symbols and summonable pets representing some groups indicating that you are an honorary member, if nothing else).
However, at present, because all of this is running (for now) illegally, NCSoft could presumably issue a cease & desist order over that. Chances are that's not going to happen at this juncture if they haven't done so yet. And the biggest reason it isn't likely to happen is because no one is profiting from this game and the resources within. The moment someone puts up a server and tries to make a profit --which is distinctly different from Homecoming's efforts to only solicit enough donations to cover monthly operating costs-- NCSoft will have a case and start lashing out with the C&Ds. Why? Because they put this game to bed and refused to sell it. They tried to make it look like it wasn't profitable enough to keep around, but the real issue is that they were chasing bigger profits at home and didn't really care about what the American audience wanted unless they wanted in on what the Korean market liked. So if someone were to bring the game back and start making a profit, not only would it be a legal issue regarding trademarks and copyrights, but it would also be a significant slap in the face to those very rigid Korean business men.
It's not about creativity or originality, it's about profits and what can be proven to be an infringement in a courtroom. Things have come a long way since Fawcett Comics lost the trademark infringement lawsuit of Shazam being a ripoff of Superman, a travesty of justice from a judge who just didn't see any difference in the ideas or presentation of the two characters. Fortunately, the law has been more well-defined since those days. You can't trademark or copyright ideas like a superhero archer or invulnerable superhero or a cat-themed hero. In fact, Marvel and DC have taken shots at each other in times past with blatant ripoffs that still hold true to the rule of being legally distinct. Examples include Marvel's version of the Legion of Superheroes, the Shi'ar Imperial Guard (with Gladiator as their Superman)... or the Squardron Supreme, a clear riff on the Justice League. On DC's side, the major copy was their Earth-8 crew of heroes known as the Retaliators, a team meant to be DC's version of the Avengers.
But Marvel can have Mister Fantastic who is a super genius science guy who stretches while DC has Elongated Man, a detective who gains stretching powers from a mystic plant extract, and neither is a ripoff of the other because they're two ideas presented in different ways.
Correct! And great to see that some people do know something about trademark law. A major sticking point about trademarks over copyrights is that trademarks must be actively defended, whereas copyrights exist until they expire. If someone infringes on a trademark and the owner of that trademark does nothing after it can be proven that they should reasonably have known about it, then they are likely to be legally determined to have abandoned the trademark. But what constitutes infringing on the trademark? Using someone else's trademark (word, symbol, or likeness) in any way without the express written permission of the owner is a no-no.
However, lots of people get away with trademark infringements all the time and no issue takes place, such as artists drawing images of trademarked characters or people cosplaying. Things this small can generally be considered to be too small to gain enough notice to trigger the "reasonable awareness" factor. If someone is not making a noticeable profit from the effort, then how is it likely to raise the red flags of the trademark owner? This is a good thing since it prevents the trademark owner from being overburdened with having to actively seek out at all times any and every little infraction that could otherwise cost them their trademark. Money = attention = lawsuit = recompense for (damages / lost profits). Anything that isn't directly serving the trademark owner's interest can be said to be damaging its marketability, and how much they can prove will likely determine how much they are awarded when the judge gets down to making his or her final verdict on the case.
In the lawsuit that Marvel brought against NCSoft, they demonstrated knowledge of the game and provided examples of copy characters that infringed several trademarks. However, I believe that the entire lawsuit was a formality so that they could move on to a partnership in an effort to create a Marvel MMO with Cryptic Studios, who was splitting from NCSoft at the time. It would have been a whole lot easier if they just gave express written permission for their trademarks to be used by players to the extent possible within the game, it could very easily have been a slippery slope of just how far could that line be pushed? In the end, the case was dismissed when it was revealed that many (if not all) of the examples of infringements shown during the trial were actually created by people at Marvel Comics to show how the costumes could look like the protected characters. Again, it all seems rather calculated to me... as in just following up on that requirement to defend those trademarks if they would be reasonably expected to be aware of infringements, and if they were talking about doing business with Cryptic, they would have to have a passing familiarity with their then-current game.
Some things do get away as infringements without costing the trademark owner the loss of that trademark... under Fair Use as parodies. But let's be honest: there is not a lot of parody going when people make their copy characters. And it would be up to a judge to determine whether or not the infringement is actually covered, which means the people responsible for the medium (not the player who created the infringement) would be required to go to court over it. So while Fair Use did allow for some wiggle room, it was never allowed on the original servers... because it would be too costly for them to have to be the ones to defend against any lawsuits brought about by player actions. It was easier to just say "no" to the whole thing. So please don't go crying Fair Use and parody about your copy characters.
Correct. There is no profit in that the Homecoming team is doing, and because of the currently illegal nature of the game (operating without the express consent of NCSoft), it's not likely that Marvel, Disney, Warner Bros, or DC will drag them into court. It would be a net loss paying the lawyers to do so since there is nothing to gain from a non-profit organization who only takes in enough to maintain operating expenses, and because the game is being operated "under the radar," the trademark owners can turn a blind eye and claim that there was no reason to expect them to be aware of the game's return. As big as it is to all of us, it's not even a blip to Disney.
However, the implementation of this new policy with the Homecoming team is actually very positive news. While it does not signal anything, I recall a month or two ago that there was some discreet talk of trying to go legit with the game (as in asking us all what we would like to see from an officially licensed COH). If the HC team does manage to get NCSoft to agree to anything that puts the game into a more legitimate atmosphere, then you can expect people to post streams of their gameplay to YouTube or other content services that can be monetized, and it will be more difficult for the big companies to ignore those little trademark infringements. So it's a sign that we could be moving closer to some kind of agreement with NCSoft.
Please understand that there is a difference between homage and infringements. See my example above about Mister Fantastic and the Elongated Man. One could easily say that the brainy Elongated Man is a DC homage to Marvel's even brainier stretchy guy. An homage should not be a lookalike, nor should it look different but claim to be the same thing in a new package. It should be an original creation that evokes the idea of the original.
As a personal example, I made a character on the Excelsior server called Good Girl. She is my homage to Supergirl. However, Supergirl is a super strong, invulnerable heroine with blue top & sometimes red skirt with matching red cape & boots as well as yellow trim highlights; while Good Girl has a red top and blue skirt with blue cape and yellow boots & belt. Good Girl has the invulnerability powerset (which I embrace the aura effects to, something Supergirl's invulnerability does not)... and I gave her energy melee, which distinguishes her from Supergirl's non-glowing punchy attacks. There's also not a big G on some sort of shape displayed on her chest, but rather a letter G off to the side (because shirts like I've used don't let you do the centered symbol).
This is an homage. It should make you think about being Supergirl,
but she is legally distinct enough to be an original character.
If you have true homage characters, you should not need to retool them. If you have copy characters, then just try try to change them up to set them apart from the original source material.
It's a little amusing, but I'm not quite sure that this falls under the definition of irony... unless you mean the Alanis Morissette song, and even then it's kind of sketchy. I think the word you were looking for is "hypocrisy."
Someone missed out on my talk about there being differences between copyright and trademark laws, and how it's trademark that we specifically need to worry about.
Personally, I know the difference and can cite legal precedent where appropriate to defend any character names I have that might be taken away. In the end, however, it's still the HC team's server and they can do with it what they want. I mean, technically, I could invent a new word and use it as the name for my character... and said name could have zero infringement potential nor any offensive qualities whatsoever... and they could still just decide to block it and rename my character because it's their server and they can. That's it. So if they want to, they can enforce any name change they want and not have to listen to anyone whine about it (because they could always remove the person from the forum for being a troublemaker if they so chose).
So ultimately, we have to choose to accept their decisions or move on to something else that we can feel more open to express ourselves creatively.
Personally, I don't like the term "ripoff character" because what constitutes ripoff? Some people will compare two similar ideas, like Hawkeye & Green Arrow, and say one is a ripoff of the other. Others will have a bit more specific requirements, meaning the character should look at least look like the one being "ripped off." Even my term of "copy characters," sprinkled throughout this post, is a little vague. It might be better if we limit ourselves to calling them legally what they are: trademark infringements.
The context of your usage of ripoff and adamant standpoint on "follow the rules or move on" makes it seem like you're talking down at people who make and play such characters. Let's all be friends and play nice. If you see a trademark infringement, then report it. No need to apply what sounds like derogatory terminology or be angry at anyone.
Back in the old days, the developers on the Live servers had a zero tolerance policy on trademarked & copyrighted material, even if the player was the owner and could prove it. It's the kind of thing that could get out of hand, as in if they allowed one person to do it then they'd have to make exceptions for anyone, and at anytime someone could decide to claim unfair use of their character's image because, for example, their character appears in someone else's monetized YouTube stream or whatever else... and they gave NCSoft / Cryptic / Paragon Studios permission to use their characters by agreeing to the EULA but can say they did not give every other player the same permission... but how do you as the people running the game control how anyone else uses screenshots taken in the game? It would be costly and irritating, and the person with the trademark character they own could say that not enough effort was taken to protect the usage of that character.
No, no... easier just to avoid all trademarks altogether.