Crossing the copyright line….

[Excraft]

59 minutes ago, Snarky said:

oooooh.  You have a fair question there.  I do not know the legalese, precedents, or current court rulings on the matter.  I can summarize though: No one gives a shit.

 

I'm not suggesting anyone should or shouldn't care.  That's entirely up to them.  I'm just offering my 2 inf.  Obviously you care because you're making such a big fuss over the topic.  I'm no lawyer and don't know the specific legal precedents either.  I'm just going with what I see with my own 2 eyes.  I'll reiterate again, I don't mind the rules on this topic here. 

 

I just find it hysterical and to be honest hypocritical how these "rules" are applied differently based on the individual(s) they're applied to.

 

When word of the server first leaked, people were asking if it was legal.  There were a lot of people who said that since NCSoft didn't immediately shut it down, that was "tacit permission" (exact words) and that made it perfectly legal. 

 

There's a lot of folks here complaining about "copyright infringement" and worrying about even the mere hint of a lawsuit in fear of the game getting shut down because Homecoming "doesn't have lawyers to fight it", yet there are definitely groups and individuals on here being allowed to use names, likenesses/costumes, biographies and group names of trademarked and copyrighted materials.  I'll go out on a limb and say I don't think anyone has the permission to use some of these group names.

 

Here are a few examples

 

https://ibb.co/VWFdTpx

https://ibb.co/3B60Yfb

https://ibb.co/pXpdvPR

https://ibb.co/Sw12fZQ

https://ibb.co/Wc57GGG

https://ibb.co/DD3vRyb

https://ibb.co/S0s1J39

https://ibb.co/BsXQyw0

https://ibb.co/mNJmrys

 

To be fair, some of these may be legacy before the rules were put in place.  I do know for a fact there are 2 in that list on Everlasting that are very active and run costume contests and such.  When questioned why they were allowed to use a copyrighted name, we were given the excuse of "it predates the Marvel film".  How that can be proven is suspicious, but even if it could, isn't it better to follow the "rather safe then sorry" rule here?  

 

Again, rules are different depending on who you are here.  That to me isn't fair.  I wanted to say again, I completely respect your opinion.  I just disagree with it. 

Edited January 13, 2023 by Excraft

[Top Gear]

I'm surprised anyone is surprised by the inner circle's "rules for thee but not me" behavior. How is this hypocrisy any different than so many other examples? Here's an idea: if you see these "violations" don't report them. Keep your mouth shut and go on about your day because in the end none of it matters. If, as the worry warts would like you to believe the server gets shut down, you can feel totally confident that it was for much worse things than someone naming an inactive SG after a comic one.

[tidge]

I'm not sure that SG names are the obvious place to look for IP infringements (see also "character bios" or "SG bases"), but hey... if you want the Team to look at those as well, I say let them have at it. These feels like complaining that drivers are speeding on another road so their shouldn't be enforcement on this road.

 

EDIT: I think this is an example of a tu quoque logical fallacy, I'll defer to those with degrees from Google University and those with post-graduate experience at Wikipedia to pass judgement.

 

 

Edited January 13, 2023 by tidge

[Excraft]

22 minutes ago, tidge said:

I'm not sure that SG names are the obvious place to look for IP infringements (see also "character bios" or "SG bases"), but hey... if you want the Team to look at those as well, I say let them have at it.

 

IP infringement is IP infringement.  I'd say it's probably a good idea to address these and all of these groups should be renamed or removed.  Can't be too careful and better to be safe than sorry.  Rules are rules and need to be applied fairly to everyone.

[Snarky]

1 hour ago, Excraft said:

I'm just offering my 2 inf.  Obviously you care because you're making such a big fuss over the topic.

I will literally comment on anything.  Test me, start a post labeled Anything

 

I have been using this bit of iconography for about two years?   Have not discussed the issue.  It has been mentioned how many times in the last 12 hours by other people?

 

But I am making a big fuss.   
 

Did we get an influx of junior high debate team players onto the forums?   I mean, the game needs new blood…

[tidge]

1 hour ago, tidge said:

EDIT: I think this is an example of a tu quoque logical fallacy, I'll defer to those with degrees from Google University and those with post-graduate experience at Wikipedia to pass judgement.

 

1 hour ago, Excraft said:

IP infringement is IP infringement.  I'd say it's probably a good idea to address these and all of these groups should be renamed or removed.  Can't be too careful and better to be safe than sorry.  Rules are rules and need to be applied fairly to everyone.

 

 I appreciate the confirmation that the logical fallacy this current line of argument rests on is tu quoque.

[Burnt Umber]

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]).

Edited January 13, 2023 by Burnt Umber

[Snarky]

Just from simple street wisdom, redside style:

 

Big companies do not want their characters accessible to people running other companies, including or especially super RPGs.   
 

Yes, Homecoming does not make money.  Read the above paragraph again. Repeat last step until a spot of light appears above your head. 

 

 

[Captain Fabulous]

3 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?  It would simply do them more harm than good for them to sue its own fans.  That's why they don't do it.  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.

 

Sure, there are licensed skins in all kinds of video games.  There's also a literal crap ton of them out there that are unlicensed. 

 

I completely get it that it's better to be safe than sorry and I keep repeating that I don't object to their being rules here for it.  I'm just finding most of the excuses being given for why it's necessary very, very thin at best and the application of those rules absolutely ludicrously biased. 

 

 

That's nice.  Is the Shadow of the Vampire version you're using as an avatar expired too?  Or do you have permission to use it from the owner/actor/producer/studio?

I keep saying copyright can get complicated, and here is another example. Dressing up like Iron Man for a convention as a fan does not hurt Disney in any way. If anything it promotes the brand. So they allow it, just like they allow fan films (with heavy restrictions). It's also fair use. You're not going to convince people you're actually Iron Man. Well, at least most people. It's the same reason they generally don't have issues with people putting on costumes and accepting tips for photos on Hollywood Blvd or in Times Square, despite many of these people doing it for a living. Could they issue cease-and-desists? Absolutely. They have simply chosen not to, mostly because it would be a huge costly pain in the ass to identify them so proper papers could be issued. In fact, Disney was in all in favor of a proposed law in NYC that would have required costumed performers to register and obtain a permit, as it would then make it really easy for Disney to target them. The bill never went anywhere.

As far as we know NCsoft still holds all the rights to City of Heroes. These servers exist solely at their grace. They can roughly be seen as something akin to a fan film -- use of copyrighted and protected IP material in a not-for-profit production not in any way intended to compete with any works created by the owner of the IP from which they currently or could potentially derive revenue (technically these servers are bootlegs, but let's not go there right now). Everything in the game, including every character you created on live is the property of NCsoft (rights to any characters created solely on these public servers is nebulous at best).

The problem is this: both Marvel and DC have a litany of licensed game products, and the developers of those products pay a very large amount of money to obtain and renew those licenses. Anything that lets you play as one of their characters, or a reasonable facsimile of, in a game that's not owned or licensed by them is verboten. Period. Full stop. It doesn't matter that the game is free and not-for-profit. You can't do it. If I created a "fan production" Justice League video game that let you play as copyrighted DC characters they would shut me down before I got to the end of "Jingle Bells Batman smells...", even if I was giving it away for free and was a registered not-for-profit organization. They just won't allow it, as it has the potential to draw people away from products that make them money. There was a guy a few years back named Joel Furtado that made these amazing X-Men pixel art cartoon shorts in the style of the 90s X-Men show, using very short snippets of audio from the original cartoons for embellishment. Being a digital artist he made them just for fun in his spare time (IIRC over a year's worth of work), without any intention of making any money from them. Disney shut him down, and fast (it's suspected it was due to the use of the audio snippets, but that was never clearly stated). I'm sure you can find bits and pieces of them out there someplace, but he was never able to finish the product nor release it as he intended.

The only reason Marvel lost their lawsuit against NCsoft is because although there existed the ability to create reasonable facsimiles of copyright characters they would only be a tiny fraction of what could be created; the primary use wasn't to infringe upon their rights. Any infringement would be done by players, not NCsoft, who had the burden to remove such potentially-infringing characters when they are found (that Marvel used examples of characters they themselves created didn't help them). It's exactly the same "safe harbor" rules that applies to sites like YouTube. As long as a concerted effort exists to remove any potentially-offending material everything should be fine. Does this mean you personally have to report them? No. We as players are under no obligation to do so. But should you? Probably. But it's really a personal choice.

[Captain Fabulous]

3 hours ago, Excraft said:

When word of the server first leaked, people were asking if it was legal.  There were a lot of people who said that since NCSoft didn't immediately shut it down, that was "tacit permission" (exact words) and that made it perfectly legal. 

 

They are absolutely copyright infringement and yes, their continued existence is tacit permission. "Legal" is really the wrong term. It's infringement.

 

 

3 hours ago, Excraft said:

There's a lot of folks here complaining about "copyright infringement" and worrying about even the mere hint of a lawsuit in fear of the game getting shut down because Homecoming "doesn't have lawyers to fight it", yet there are definitely groups and individuals on here being allowed to use names, likenesses/costumes, biographies and group names of trademarked and copyrighted materials.  I'll go out on a limb and say I don't think anyone has the permission to use some of these group names.

Here are a few examples

 

https://ibb.co/VWFdTpx

https://ibb.co/3B60Yfb

https://ibb.co/pXpdvPR

https://ibb.co/Sw12fZQ

https://ibb.co/Wc57GGG

https://ibb.co/DD3vRyb

https://ibb.co/S0s1J39

https://ibb.co/BsXQyw0

https://ibb.co/mNJmrys

 

To be fair, some of these may be legacy before the rules were put in place.  I do know for a fact there are 2 in that list on Everlasting that are very active and run costume contests and such.  When questioned why they were allowed to use a copyrighted name, we were given the excuse of "it predates the Marvel film".  How that can be proven is suspicious, but even if it could, isn't it better to follow the "rather safe then sorry" rule here?  

 

Again, rules are different depending on who you are here.  That to me isn't fair.  I wanted to say again, I completely respect your opinion.  I just disagree with it. 

The thing about copyright is that it's something a court decides. We can speculate, but ultimately it comes down to a court decision. If Disney or Time Warner has an problem with this game they would issue a cease and desist. At that point it's pretty much over. No one in their right mind would try and fight a C&D from Disney or TW over this game.

IMHO all of those SGs should be renamed, as they're using trademarked names. I'm not entirely sure why they haven't been. The excuse given is not a valid one.

Edited January 13, 2023 by Captain Fabulous

[Captain Fabulous]

2 hours ago, Excraft said:

 

IP infringement is IP infringement.  I'd say it's probably a good idea to address these and all of these groups should be renamed or removed.  Can't be too careful and better to be safe than sorry.  Rules are rules and need to be applied fairly to everyone.

Not sure if you're trying to be snarky or sarcastic, but you are correct.

[Captain Fabulous]

44 minutes ago, Burnt Umber said:

 

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:

 

 

To the extent that it is clearly fair use, then the copyright holder cannot sue people and take them to court over it.  Or, to be pedantically more accurate, a copyright holder could file a complaint, but the complaint would likely 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).

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.

[Burnt Umber]

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).

[Captain Fabulous]

4 minutes ago, Burnt Umber said:

 

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).

It really comes down to whether a court (or multiple courts) perceive suits as abusive in some way. It's incredibly rare for a lawyer to be sanctioned, suspended, or disbarred without having committed a crime.

The Righthaven shitshow is a good example. Once judges/courts realized the suits being filed were thinly-veiled extortion schemes with legally-questionable standing the whole thing went tits up fairly quickly. But it took someone to stand up to their claim of infringement and fight them in court. The lawyer involved in that mess, Marc Randazza, has a LONG 20-year history of highly-questionable and flat out unethical court dealings and yet has managed to still cling to his ability to practice law in multiple states.

[Excraft]

3 hours ago, Captain Fabulous said:

Could they issue cease-and-desists? Absolutely. They have simply chosen not to, mostly because it would be a huge costly pain in the ass to identify them so proper papers could be issued.

 

I don't at all disagree.  Personally, I believe companies like Disney take the same attitude toward things like this game and others like it out there.  They don't care.  All the pseudo care concern and hysteria some folk here have about people making homages isn't something to be worried about or make a big deal over in my opinion.  It's more about using the rule as a bludgeon to inflict their will on others to conform to their personal ideas of creativity.

Edited January 13, 2023 by Excraft

[Captain Fabulous]

13 minutes ago, Excraft said:

 

I don't at all disagree.  Personally, I believe companies like Disney take the same attitude toward things like this game and others like it out there.  They don't care.  All the pseudo care concern and hysteria some folk here have about people making homages isn't something to be worried about or make a big deal over in my opinion.  It's more about using the rule as a bludgeon to inflict their will on others to conform to their personal ideas of creativity.

I don't believe Disney cares about what's done in City of Heroes provided there isn't a rampant outbreak of Marvel clones and the devs turn a blind eye to them. As long as they continue to genericize characters that cross the line there should be no issues. Disney knows from previous court rulings there's a threshold that needs to be met in order to successfully win such a case. But, that being said, if they wanted to issue a C&D they absolutely could and it would be over, as neither Homecoming nor NCsoft is going to take that battle to court over a 20 year old game that doesn't generate revenue.  Extremely unlikely Disney would do such a thing, but it *could*.

Remember, Disney is the company that sued a public school fundraiser after one of the dads popped in his disc of The Lion King at the event without having paid the $250 public performance license he wasn't aware was needed. No one knows how Disney even found out about it, but they somehow did. So yeah, never once for an instant doubt that Disney can be a huge dick when it wants to be, for no other reason than it can.

[biostem]

35 minutes ago, Excraft said:

It's more about using the rule as a bludgeon to inflict their will on others to conform to their personal ideas of creativity.

I only ever report blatant copies.  That being said, why blame the one reporting the violation, (if it's a valid report), when it's really the violator that's at fault?  I mean, unless you can get inside someone else's head, or they straightforwardly tell you their reasoning, this seems just as much like fearmongering as saying that the big bad Disney or Marvel are going to come after our game...

[Excraft]

4 minutes ago, Captain Fabulous said:

I don't believe Disney cares about what's done in City of Heroes provided there isn't a rampant outbreak of Marvel clones and the devs turn a blind eye to them. As long as they continue to genericize characters that cross the line there should be no issues. Disney knows from previous court rulings there's a threshold that needs to be met in order to successfully win such a case. But, that being said, if they wanted to issue a C&D they absolutely could and it would be over, as neither Homecoming nor NCsoft is going to take that battle to court over a 20 year old game that doesn't generate revenue.  Extremely unlikely Disney would do such a thing, but it *could*.

Remember, Disney is the company that sued a public school fundraiser after one of the dads popped in his disc of The Lion King at the event without having paid the $250 public performance license he wasn't aware was needed. No one knows how Disney even found out about it, but they somehow did. So yeah, never once for an instant doubt that Disney can be a huge dick when it wants to be, for no other reason than it can.

 

Sure they can.  We could all get struck by a meteor too.  Doesn't make it something to be overly concerned about.

[Excraft]

1 minute ago, biostem said:

I only ever report blatant copies.  That being said, why blame the one reporting the violation, (if it's a valid report), when it's really the violator that's at fault?  I mean, unless you can get inside someone else's head, or they straightforwardly tell you their reasoning, this seems just as much like fearmongering as saying that the big bad Disney or Marvel are going to come after our game...

 

It's not fearmongering, at least not from me.  I'm just going by what I've seen for myself and have read here and through in-game chat.  I don't blame anyone for reporting.

[Captain Fabulous]

1 minute ago, Excraft said:

 

Sure they can.  We could all get struck by a meteor too.  Doesn't make it something to be overly concerned about.

I don't believe it's something we should be concerned about at all as long the devs continue to remove violations when they're found. It's in the TOS, they maintain a blacklist of copyrighted and trademarked names, and they genericize blatant costume violations and names that have found ways around the blacklist. We're good.

[biostem]

3 minutes ago, Excraft said:

It's not fearmongering, at least not from me.  I'm just going by what I've seen for myself and have read here and through in-game chat.  I don't blame anyone for reporting.

So when you say that they are "using the rule as a bludgeon to get them to conform", who do you claim to be doing that?  It's not the violator, right?  It's the one(s) recognizing or reporting them for said violation(s)?  I mean, regardless of whether you like the particular approach taken, 1 party is in the right, and the other is in the wrong, yes?

[Excraft]

10 minutes ago, Captain Fabulous said:

I don't believe it's something we should be concerned about at all as long the devs continue to remove violations when they're found. It's in the TOS, they maintain a blacklist of copyrighted and trademarked names, and they genericize blatant costume violations and names that have found ways around the blacklist. We're good.

 

You realize that I don't disagree with the rules here on this, right?  If not, I'm happy to re-quote all the posts I've made that stated that. 

 

3 minutes ago, biostem said:

So when you say that they are "using the rule as a bludgeon to get them to conform", who do you claim to be doing that?  It's not the violator, right?  It's the one(s) recognizing or reporting them for said violation(s)?  I mean, regardless of whether you like the particular approach taken, 1 party is in the right, and the other is in the wrong, yes?

 

Depends on the motive.  You've got people here who don't care what others do - which I believe to be most folk, but they'll follow the rules (however silly).  You've also got quite a few anal retentive types who have absolutely no qualms about expressing their complete disdain of anyone who doesn't meet their utterly distorted views on creativity and originality and love to belittle and badger those who disagree.  They just can't help themselves from being total aholes. 

 

There is a difference.

[biostem]

7 minutes ago, Excraft said:

You've also got quite a few anal retentive types who have absolutely no qualms about expressing their complete disdain of anyone who doesn't meet their utterly distorted views on creativity and originality and love to belittle and badger those who disagree.  They just can't help themselves from being total aholes. 

The question is whether to, or to what degree, you can genuinely attribute such characteristics to such people.  I have no doubt that some do exist, but my point is that if you break the rules then get caught, you really have no leg to stand on - regardless of the motive or intent of the person or people that reported them...

[Excraft]

4 minutes ago, biostem said:

The question is whether to, or to what degree, you can genuinely attribute such characteristics to such people. 

 

They are very, very, very, very easy to identify through their posts here on the forums when this topic comes up every so often.  They're also super easy to spot in game on various chat channels when they're criticizing another player for their character name or costume design or biography.   The rule gives them the bludgeon they want to force everyone to conform to their warped point of view.

Edited January 13, 2023 by Excraft

[Captain Fabulous]

15 minutes ago, Excraft said:

 

They are very, very, very, very easy to identify through their posts here on the forums when this topic comes up every so often.  They're also super easy to spot in game on various chat channels when they're criticizing another player for their character name or costume design or biography.   The rule gives them the bludgeon they want to force everyone to conform to their warped point of view.

I literally had someone in Oro, in local chat, tell me the AT and powersets I chose for a particular homage character were not only incorrect, but then spent the next 5 mins explaining why.

I was like "Bish, please go bother someone else with this nonsense."