Trademarked characters.

[Alt Tab]

After reading de code of conduct, yeah I did read this part because I like this game and appreciate and respect the persons giving me the chance to play it, I do have a question.

 

Are characters like The Hulk allowed? And is this limited to characters you play or does this include all characters, like the ones you make for AE.

Quick answer from the code of conduct:

Don’t try to do anything you couldn’t get away with on the live servers.

Would suggest: Not allowed.

 

Am I right? Cause personally I made a Hulk and read the code of conduct after I made my character. Like do first and read about it after... Hey I'm no saint 😉

 

Edited July 28, 2019 by Alt Tab

[Lunchmoney]

This is an illegal server. Crack on.

Discussed here already 

 

Edited July 28, 2019 by Lunchmoney

[justicebeliever]

There's deep technicality and there's practicality...

 

Practically speaking - they are not policing this at all...I'm sure we can have several 8-man "Dr. Strange" teams running around the servers...It poses virtually no risk to them or you

 

If you want deep technicality arguments - go here:  

 

[jubakumbi]

My guess is at this stage you would be lucky to get any of them, the names of most supers are probably already being played...

[GM Capocollo]

We currently don't police trademarked names, but that doesn't mean it can't potentially change in the future.

[justicebeliever]

I was assuming he wasn't just talking about the name, but the whole character.  Regardless, I assume the answer doesn't change

[Alt Tab]

Thanks for clearing this up

[PaxArcana]

4 hours ago, Lunchmoney said:

This is an illegal server. Crack on.

NCSoft knows it exists, and has given at least tacit permission for it to continue doing so.  (Likely, that involved at least two restrictions: (a) not charging any fees, selling anything in-game, or otherwise making a profit; and (b) eliminating the old Auth and Character databases)

 

As such, it's legality is at worst indeterminate.

 

And even if it were full-blown illegal ... two wrongs do not make a right.  More importantly, the legality or illegality of these servers does not insulate the HC dev team from possible copyright infringement suits.

So don't.  JUST DON'T...!  It's not worth the potential (very unlikely but still nonzero) chance that a high incidence of IP infringing characters could prompt legal action, which in turn would cause these servers (and all others) to close forever.

[Lunchmoney]

1 minute ago, PaxArcana said:

NCSoft knows it exists, and has given at least tacit permission for it to continue doing so

Source?

[PaxArcana]

Just now, Lunchmoney said:

Source?

Logical deduction.

They cannot NOT know these servers exist; their existence has been trumpeted all over the internet for months now.

 

And since companies like NCSoft have law firms on retainer, whose primary (if not SOLE) function is to find, and eliminate, infringement of their IPs, and the HC team hasn't shut down, nor even received a cease-and-desist letter .... I can only logically conclude that NCSoft must have given permission, even if it's an under-the-table, ::cough-cough, nudge-nudge, wink-wink:: sort of permission.

 

🙂

[Vanden]

1 hour ago, PaxArcana said:

Logical deduction.

They cannot NOT know these servers exist; their existence has been trumpeted all over the internet for months now.

 

And since companies like NCSoft have law firms on retainer, whose primary (if not SOLE) function is to find, and eliminate, infringement of their IPs, and the HC team hasn't shut down, nor even received a cease-and-desist letter .... I can only logically conclude that NCSoft must have given permission, even if it's an under-the-table, ::cough-cough, nudge-nudge, wink-wink:: sort of permission.

 

🙂

That's no source at all. That's a fancy way of saying "silence implies consent."

Edited July 28, 2019 by Vanden

[Sunsette]

46 minutes ago, Vanden said:

That's no source at all. That's a fancy way of saying "silence implies consent."

In American intellectual property law, that is in fact applicable at times, particularly for trademarks, and it is part of why companies so vigorously act in seemingly-ridiculous manners to squash potential trademark challenges that appear innocuous casually. CoH private servers is a tangle of trademark and copyright law. Admittedly, most of the big concerns for HC are copyright but since the forum thread is about trademark I wanted to point that out. 

 

So I don't know if I'd use the phrase "tacit permission", but NCSoft's silence has been meaningful and is fairly unusual across IP holders in America. I'm not entirely sure what to make of it. It is relevant that in the last few years the LOC ruled that private servers were broadly legal for abandonware, but there's the additional complication that HC has access to the official backend and I really have no idea where that could go. Also the LOC isn't binding so much as guidance here. 

 

By the same token, though, to my casual eye, not sure there's a good legal case for any third parties to get mad about people using this now-defunct game to represent their trademarked characters, any more than there would be to get upset about fanart posted in deviantart. No one is making a profit through direct operation of the game,  nor using it to promote anything profitable (like "merch".)

 

That doesn't mean that someone couldn't get mad about it, and this server would probably fold under any real legal challenge, so people may want to err on the side of caution. But I suspect most IP holders would err on the side of "not worth the PR blowback", same as they usually don't go after fan operations selling handcrafted art of their trademarked characters. It's only when it goes into industrial scale that companies commonly get involved these days. 

 

I do have some legal education and experience but IANAL so, as always, consult one with relevant experience and education if this is actually important to you. 

Edited July 28, 2019 by Sunsette

[Abraxus]

How do they know?  Well, if they hadn't become aware due to the myriad of other potential sources of such information, the fact that the Homecoming team was in direct talks with them was probably a dead giveaway.  We don't know the specifics, and we don't know the status.  We only know it was happening. 

[THEDarkTyger]

1 hour ago, Vanden said:

That's no source at all. That's a fancy way of saying "silence implies consent."

When it comes to issues of trademark, that's exactly what the law says. If you can be shown to be aware of an infringement and take no action, then you basically lose a lot of weight in your ability to ever enforce that trademark. That's WHY companies like Disney so aggressively go after violations.

[PaxArcana]

2 hours ago, Sunsette said:

By the same token, though, to my casual eye, not sure there's a good legal case for any third parties to get mad about people using this now-defunct game to represent their trademarked characters, any more than there would be to get upset about fanart posted in deviantart. No one is making a profit through direct operation of the game,  nor using it to promote anything profitable (like "merch".)

Just to clarify for readers (I suspect you know this already) but:

You do not have to have made a profit, or even a single penny at all, in order to be guilty of copyright or trademark infringements.

Let's say Bob gets an ARC (Advanced Reader Copy), in e-format, of the next big Stephen King novel.  He prints off fifty thousand copies (at a significant cost - say, $2 per copy), then stands in Times Square handing them out for free.  Hell with free, he staples a $5 bill to each copy.  If he hands out all those copies, he has actually LOST $350,000 ...!  (And he's not to bright, I think we can agree.)

The book, when it goes officially on sale, has a cover price of $20 (it's only in hardcover for the first 9 months).  Mr. King, and/or his publisher, could file suit against Bob for the full cover price of each and every one of those copies, and the courts will accept on it's face that each copy given away WOULD have been a copy sold.  So he/they can sue Bob for $1,000,000 ... plus their attorney's fees and any related expenses.

Bob doesn't get to deduct his $350K expenses from that, either.

...

If Bob, instead of stapling that $5 bill to each copy, had actually SOLD his copies .... it gets even worse.  Let's say he sold them for $10 apiece.

Mr. King or his publisher could sue Bob for the same $1M of "lost" sales, PLUS Bob's gross receipts (of $500,000).  Bob still can't deduct the expense of making those copies, and yes, they can sue for his GROSS receipts, not his net profit.

...

If you poke a big enough tiger with that copyright-infringement stick, and they are sufficiently litigious-minded .... you will get HAMMERED ABSOLUTELY FLAT.

[PaxArcana]

1 hour ago, THEDarkTyger said:

When it comes to issues of trademark, that's exactly what the law says. If you can be shown to be aware of an infringement and take no action, then you basically lose a lot of weight in your ability to ever enforce that trademark. That's WHY companies like Disney so aggressively go after violations.

Exactly so.

Let me relate a little story about my own actions, and use of someone else's copyrighted, trademarked, and even patented property.

I wanted to run a game, on my own private part of a public forum ( rpol.net ), using the "Dream Park" game rules (by R. Talsorian Games), and setting (by Larry Niven and Steve Barnes, in the form of several novels; offhand, "Dream Park" and "The Barsoon Project" ... i think there was a third, but I can't recall the title just now).  Problem is, the game had been out of print for years; to make the game work, all players would need access to the rules, and that meant I would have to reproduce them word for word in several threads of that forum.  And, having known tabletop-RPG writers on a first-name basis, I was not about to just wholesale steal the game rulebooks like that.

 

So I did the right thing, and contacted R. Talsorian Games to ask for permission.  Fun stumbling block: their license to publish the game had run out - but the underlaying system, they held patent on.  So, while they were willing to work something out with me, they said I also had to get permission from the authors.  As I'm sure you can imagine, Niven and Barnes get a LOT of mail from fans, not all of it friendly.  But, I tried anyway - and after a very friendly back and forth (during which I offered/promised to direct players to Amazon links they could buy the books at), they gave their permission.

But, verbal / email permissions weren't enough.  Especially not for RTG; I had to sign a legal document, essentially sub-licensing the rights to the system underlaying the game itself.  And it's not that they wanted money - I wasn't going to have to pay a penny for the license.

 

It was to protect them, and preserve their ownership of the various pieces of the game: by granting me a specific-use license, then my use of their IP for that purpose did not weaken their ownership of said IP.  An IP which each of the parties involved (except me) absolutely relied on to put food on their table, and a roof over their heads.

...

Yeah.  IP really is that serious an issue, especially for the smaller creators out there.  Losing your trademark (etc) to something, could literally mean "I can't pay rent next month".

Edited July 29, 2019 by PaxArcana

[Sunsette]

Right you are, Pax. Of course, the analogy has some applicability problems because trademarked characters being produced by end-users in a third-party program is a heavily grey area -- the question is whether the analogy is closer to Bob and his book or a drawing program. This isn't (afaik, it's been a few years since law school now and I didn't specialize in IP stuff at all) a settled question at all as you can make some strong arguments either way, so there's a lot of judgment involved as to whether any one person thinks it's worth the risk. There's always the question of if something is worth it on the merits as well as the question of facing a well-funded and litigious opponent regardless of the merits.

I prefer making OCs myself so it's not a judgment for me to make.

Edited July 29, 2019 by Sunsette

[PaxArcana]

I prefer OCs too.

If I were to make a copy of, say, Batman, though?  TRIBUTE CHARACTER.  You can make a character that "absolutely is" the one you want, but is also different enough - has had enough of your own creative input put into it - that it's not an infringement.

One sort-of example of this, though it's by the same publisher:

Batman ... who was copied, for the Watchmen comics, in the form of two characters:  Night Owl (the nocturnal animal theme, the wealth, the gadgets and even specialized costumes), and Rorschach (the predilection for violence, the detective/crimesolving, and even the tendency to expect the worst of people in general (ask any long-term Batman fan why he NEEDS a Robin)).

 

Or, another tribute to Batman, is Vampyr, from the Gods & Monsters animated feature.  It's not as close a match, but it's quite obviously intended to be the parallel to Batman, in that world.

 

The trick is to make a character that shares enough points of commonality that anyone who reads your bio will think "OH, that's a Batman/Superman/Whoever tribute" ... but is just different enough to not make some trademark lawyer think "aha, this week's meal ticket has just been delivered".  🙂

[PaxArcana]

I really wish I still had the screenshots, but "back in the day" I went through making a Superman tribute.  "Captain Proton", I think I called him.  Costume and everything ... and a background/bio that absolutely SCREAMED "I am a superman tribute", while being sufficiently different that no Judge would ever have ruled it was a trademark or copyright infringement, even if I'd somehow profited off of the character.

 

And it wasn't hard.  Changed the name, changed the vulnerability, moved where his rocket pod landed, then took Superman's costume and swapped out the Red for Green, added some retro-SciFi elements, and called it a day.

 

Anyone who ever read that bio, would absolutely know it was Superman with the serial numbers filed off.  But it was different enough, JUST, to pass muster without a problem.

[Without_Pause]

12 hours ago, PaxArcana said:

I really wish I still had the screenshots, but "back in the day" I went through making a Superman tribute.  "Captain Proton", I think I called him.  Costume and everything ... and a background/bio that absolutely SCREAMED "I am a superman tribute", while being sufficiently different that no Judge would ever have ruled it was a trademark or copyright infringement, even if I'd somehow profited off of the character.

 

And it wasn't hard.  Changed the name, changed the vulnerability, moved where his rocket pod landed, then took Superman's costume and swapped out the Red for Green, added some retro-SciFi elements, and called it a day.

 

Anyone who ever read that bio, would absolutely know it was Superman with the serial numbers filed off.  But it was different enough, JUST, to pass muster without a problem.

+1. Love Wolverine and Hulk. Even made a Claws/regen on live. Made a Cap like character on HC. You can't look at either and say they are direct copies. I have no desire to play direct copies.

[jubakumbi]

Don't play in fear.

 

Play whatever you want, trademarked or not, don't let FUD stop your fun.

 

Or, succumb to peer pressure and play like Big Borther is over your shoulder.

 

We all have choices, some choose to stiffle others through shame and FUD.

 

🙂

[justicebeliever]

13 hours ago, PaxArcana said:

Batman ... who was copied, for the Watchmen comics, in the form of two characters:  Night Owl (the nocturnal animal theme, the wealth, the gadgets and even specialized costumes), and Rorschach (the predilection for violence, the detective/crimesolving, and even the tendency to expect the worst of people in general (ask any long-term Batman fan why he NEEDS a Robin)).

For Watchmen, Alan Moore specifically wanted to use an obscure/unused line of heroes - Charlton Comics...Night Owl was borrowed the Blue Beetle (Silver Age/Ted Kord) and Rorschach was the Question (Vic Sage).  DC was afraid that Alan Moore's story would leave the characters unusable for future DC Stories, so they convinced him to go the route he did.  Still Homage Characters, just not the ones you were citing...

[justicebeliever]

14 hours ago, Sunsette said:

Right you are, Pax. Of course, the analogy has some applicability problems because trademarked characters being produced by end-users in a third-party program is a heavily grey area -- the question is whether the analogy is closer to Bob and his book or a drawing program. This isn't (afaik, it's been a few years since law school now and I didn't specialize in IP stuff at all) a settled question at all as you can make some strong arguments either way, so there's a lot of judgment involved as to whether any one person thinks it's worth the risk. There's always the question of if something is worth it on the merits as well as the question of facing a well-funded and litigious opponent regardless of the merits.

I prefer making OCs myself so it's not a judgment for me to make.

 

There's a practicality question here as well...

 

If WB (DC Comics)/Disney (Marvel Comics), want to shut down HC, they already have ample character names in the database...There is no way, without a paid moderated staff, that HC can police this policy appropriately.  The "Cat's of the Bag", so to speak.  And HC is in no way using these characters for anything - marketing, imagery, etc...It comes back to a very grey and unsettled area - Fan art for personal use.

 

If the big guns want to play, they'll find a reason...in the meantime, I'm not about to tell one person they can't do it, because it's no adding to the harm...We aren't going to get 10M Hulks/Iron Man/Batman/Superman in the game.  We might get that many Dr. Strange's though (he seems to be everywhere...must be a timey wimey stoney thing).

 

[Sidious]

Stop trying to ruin our fun.

 

Dont like the idea of trademark characters, don’t make one.

 

Otherwise MYODB.

[justicebeliever]

14 hours ago, PaxArcana said:

Yeah.  IP really is that serious an issue, especially for the smaller creators out there.  Losing your trademark (etc) to something, could literally mean "I can't pay rent next month".

We need to separate Copyright and Trademark.  Copyright does not need to be defended.  It is automatic.  I don't even have to publish the work.  As long as I have evidence that a.) I created the work first, and b.) that the opposing body of work is too similar to mine to be original, I win.  In your Stephen King example, that's what we are talking about, copyright.  The example you gave is spot on, but it's not about Trademark, and have a different body of laws governing it.

 

Trademark is an image, symbol, or word that is used to market your stuff.  And it must be defended from "poachers" or it can be lost.  It would difficult however (not saying impossible) to show any of our fellow players as trying to "co-opt" the trademark for their own purposes.  In other words, it's extremely unlikely that this would be an issue, and if so, the damage is already done... (Because let's be clear...Marvel/DC aren't going to get money from HC, and are extremely unlikely to pursue end users (as likely that i would stop posting here), so the best they can get is shutting down the game, and there are already enough examples to do that if they wish