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For kids reared on comic books, what could be more natural than tumbling into the backyard with their friends to make up new adventures for their favorite superheroes? How many comic book fans adorned their grade-school notebooks with hand-drawn images of the X-Men, the Incredible Hulk, and Captain America? Apparently Marvel Enterprises Inc., which owns the copyright and trademark rights in these classic superhero characters, thinks that these generations of American children were all infringers, little better than the downloaders targeted by the music and movie industries. At least that’s the impression left by a complaint filed Nov. 10 by Marvel against NCSoft Corp. and Cryptic Studios, the operators of an online game called “City of Heroes.” MARVEL SUES CITY OF HEROES “City of Heroes” is one of the more recent examples of a video game genre known as massive-multiplayer online role playing games (sometimes abbreviated MMORPG or, more simply, MMO). This is the digital equivalent of playing Captain America in your backyard — players create characters that they play in a “virtual world,” banding together with other players to take on quests, gain experience and acquire virtual possessions. MMOs are big business, with Sony boasting that more than 3 million people have played its category-creating title, “Everquest.” “City of Heroes” signed up more than 180,000 subscribers in its first three months. “City of Heroes” is, as described on the Web site, an “online world that’s home to an entire universe of heroes, where you and thousands of other players take on the roles of super powered heroes — in a stunning, 3-D graphical world.” Players buy the “City of Heroes” software, create their own superhero characters from a palette of character types, powers and costumes, and then log into one of the various “City of Heroes” servers to join the action already in progress. The setting is “Paragon City,” where players seek out adventures with other players, develop the powers and abilities of their characters, and generally have enough fun to justify the monthly subscription fee of $14. Enter Marvel and its league of lawyers. Marvel filed suit against the operators of “City of Heroes,” alleging copyright and trademark infringement, as well as a variety of state law claims. The chief claims are for contributory and vicarious copyright and trademark infringement. In other words, Marvel’s complaint is premised on the notion that NCSoft and Cryptic should be held responsible for the infringing activities of the players in the game. According to the complaint, the players are infringing Marvel’s copyrights and trademarks by creating characters that are recognizable copies of Marvel characters, including Wolverine and the Incredible Hulk. Yes, you read that right — Marvel’s claim is based on the idea that private individuals who pretend to be Wolverine for fun in a video game are breaking the law. Since when is it illegal to pretend to be your favorite superhero? Should parents be policing their kids, lest they be caught “pretending without a license”? Were all those drawings of the X-Men on grammar school notebooks evidence of infringement? And what about all those homemade superhero Halloween costumes? Of course, Marvel may well be wrong about the law. From a trademark point of view, it is difficult to see how these kinds of noncommercial activities could satisfy the “use in commerce” threshold imposed by federal trademark law. Copyright lawyers will reason that these activities, even if technically infringing, are almost certainly sheltered by defenses like fair use or de minimis non curat lex. Marvel, for its part, will doubtless say that its legal beef is with the operators of “City of Heroes,” not the players (pay no attention to that pesky complaint, that’s just legal mumbo jumbo). But all of these lawyerly answers miss a more fundamental point: Why are everyday expressive activities in the real world — such as joining some neighborhood kids in the backyard for a bit of superhero role playing — suddenly exposed to the depredations of copyright and trademark lawyers when they move online? Marvel’s assertion of copyright and trademark rights over the noncommercial expressive activities of its fans is both unprecedented and unnecessary. The fundamental justification for copyright is that we must tolerate a limited statutory monopoly on expression in order to secure an adequate incentive for the creative industries. That’s an adequate incentive, not the maximum conceivable incentive. Trademark law, meanwhile, is meant to protect the public from confusion in the marketplace for products and services. Measured by these yardsticks, Marvel’s claims fall short. Does anyone believe that Marvel will fire its authors and close up shop if it can’t prevent little Johnny from pretending to be Wolverine online? And no one is going to be confused into buying something by mistake when they run into another player in-game who has adopted the green skin and purple shorts of the Hulk. On the other hand, if the court accepts Marvel’s notion that playing Wolverine or the Incredible Hulk online is unlawful, you can expect a chill to spread through all the MMO universes. Rights holders will begin insisting that MMO operators police their games for unauthorized elements — robots that look too much like C3PO, uniforms that look too much like Captain Kirk’s, haircuts that mimic Bart Simpson’s, in-game face paint that evokes KISS, or blonde vampire slayers named Buffy. Those who want to appropriate characters and objects from their favorite movies, comics, games or television shows will be limited to virtual worlds either operated or licensed by the corporations that own those cultural objects. If they want to mix and match characters and genres, they will be hunted down and deleted, either by the rightsholders themselves or by MMO operators deputized by fear of secondary liability. In essence, the open-ended universe of MMOs would be reduced to a limited set of tightly controlled theme parks. All this, thanks to the censorial side of copyright and trademark law. So let’s recognize Marvel’s lawsuit for what it is — not just a tussle between competing corporations, but as an assault on the basic expressive rights of the fans that have supported the comic book industry for decades. Be prepared when your children, heading out into the virtual backyard of the future, ask, “Mom, I want to play Spider-Man with my friends today. Did we pay for the Marvel license this month?” Fred von Lohmann is a senior staff attorney with the Electronic Frontier Foundation, a San Francisco-based nonprofit devoted to protecting civil liberties and free expression in the digital world.

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