Super-Grokster:
Liability for Third-Party Infringement
in Superhero Video Gaming

Marvel Enterprises, Inc. v. NCsoft Corp.
No. CV 04-9253-RGK (C.D. Cal. Aug. 22, 2005), et. al.

The Story

Marvel started as Timely Comics in the 1930s, when it published Captain America, the Human Torch, and Sub-Mariner superhero comic books. The company changed its name and reinvigorated the genre in the 1960s, with its tragic heroes Spider-Man, the Fantastic Four, the Incredible Hulk, and the X-Men as part of its developing cast of thousands of costumed characters. Both Marvel and its main competitor DC Comics have published or licensed their superheroes to earn billions of dollars over the last seventy years, and protect their intellectual property rights in the characters assiduously.

Fears over digital transmission through wide-reaching and inexpensive worldwide web channels led to the Digital Millennium Copyright Act (DMCA) of 1998. It provides a safe harbor for an Internet Service Provider (ISP) against a claim of copyright infringement if it removes infringing material when notified by the copyright holder (called "Notice and Knockdown").

Seeking to take advantage of the online market for superhero adventure, in April of 2004, NCsoft and Cryptic Studios launched City of Heroes, a Massively Mutliplayer Online Role-Playing Game (MMORPG) played over the internet.

Users create original superheroes using a character generation feature called the "Creation Engine" and share adventures with other players in the game's virtual city. It was monstrously successful almost immediately.

Despite efforts by Cryptic, users created superheroes that infringed on the intellectual property rights of Marvel Comics. In September of 2004, Marvel first contacted Cryptic and NCsoft to complain that City of Heroes contained user-created characters similar to the Hulk, Wolverine, and the Thing. Marvel followed up that contact with official DMCA notice in October of 2004. NCsoft and Cryptic rebuffed the complaint as too vague. Marvel tried again, citing user-created characters "Hulk10" and "Wolverine20" in the game. This time, NCsoft followed up by deleting many characters to ensure the infringing characters were removed.

Marvel Sues City of Heroes for Infringement

November 10, 2004, Marvel filed suit against NCsoft and Cryptic Studios for infringement in the Central District of California. Marvel claimed that the game unlawfully permits and induces infringement of Marvel's copyrights and trademarks.

One claim was that Marvel's copyright and trademark in Captain America is infringed by City of Heroes main character The Statesman, who wears a helmet similar to Marvel's Magneto.

Another claim points out several user-created characters in City of Heroes that infringe on Marvel Characters, including the Hulk and Wolverine.

Marvel also claimed that NCsoft and Cryptic not only enabled infringement, but actually induced infringement by promoting their game with slogans like "play your favorite hero" and "brings the world of comic books alive," a world in which Marvel is a main player, and at its introduction, City of Heroes was a non-player.

In February 2005, Marvel admitted that their attorneys had created "Hulk10" and "Wolverine20," which can get them in trouble for making a false complaint under the DMCA. NCsoft and Cryptic countersued for false infringement claims and for a New Thunderbolts comic Marvel published that used the term "City of Heroes." Marvel's claim stands as to the other character infringements.

Infringement of Marvel Properties

It is difficult to say how many infringing characters are running around City of Heroes. They are not uncommon, judging from reviews and other anecdotal evidence, such as the City of Copies article by Steve Bowler.

Characters are created on the user's computer, then uploaded to the game when finished. This screen is from the character creation engine, demonstrating that the character has not yet been accepted by the game. Many characters are blocked before they are uploaded, so images on this page with a similar look, or arrows around the characters' feet, do not indicate whether they were accepted into the game. They are included to illustrate the users' intent to infringe.

All of the City of Heroes characters pictured below were identified with the characters by their creators. These pictures are a demonstration of a clear intent to do use City of Heroes for more than the creation of wholly original characters.

A character in a different pose, or standing on the city street has been accepted into the game. When these characters are reported, City of Heroes may block them out for infringement. The time it takes for these characters to be removed ranges from within an hour to never.

Users create many infringing characters, demonstrating their intent to use the game in an infringing manner. City of Heroes contends that their users are primarily interested in creating original characters, but there is ample evidence of derivative characters in screenshots scattered across the web by proud users.

Infringement of Marvel Properties

Infringement of DC Properties

Infringement of Other Comic Book Properties

Infringement of Movie Properties

Infringement of Cartoon Properties

Infringement of Other Properties

Questionable Use of Other People or Properties