Marvel Enterprises has filed suit against NCsoft and Cryptic Studios, claiming that the companies violated Marvel's trademark characters in the MMORPG City of Heroes. Marvel claims the two companies have disrupted its "existing and future" business prospects for licensing its characters in similar games; it seeks unspecified damages and an injunction against NCsoft and Cryptic Studios to stop using its characters.
Marvel's lawsuit argues that the game's character creation engine easily allows players to design characters that are virtual copies of the company's own superheroes. It singles out a game feature for creating "a gigantic, green, 'science-based tanker'-type hero that moves and behaves nearly identically" to the character The Incredible Hulk. The suit also claims players can create "mutant-based" hero powers and a costume similar to the character Wolverine. Marvel took issue as well with the ability of players to name their superhero creations after its comic book characters.
Marvel claims NCsoft and Cryptic Studios are responsible because the game is played on servers operated by the companies. While this appears to be the first lawsuit to raise the question in the context of an online game, early copyright infringement suits against the file-sharing service Napster successfully made a similar argument.
However, one could still argue that City of Heroes only empowers users to the same degree as an establishment such as Kinkos, said Fred von Lohmann, senior intellectual property attorney with the Electronic Frontier Foundation. "Is it a violation of copyright to make up a character in the virtual world or is that fair use?" said von Lohmann. "This is really untested ground in the courts."
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