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Post by PoochieHellhound on Feb 25, 2011 11:48:43 GMT -5
A lot has been said on the official forums about reports and similar of IP (Intellectual Property) violations, and the reason for this is that they are frightened that Silver players will create clones and close homages to their favourite heroes and bring upon Cryptic a lawsuit. This has happened to Cryptic once before in City Of Heroes, where Marvel brought them to court because of just this, so we know it can happen. I decided to bring this issue up here, just in case someone doesn't know the raw consequences of making such a character. This is a thing that everyone should know, since it's in the EULA, but even then a lot of people run around with copyrighted characters which may either be reported or end up costing Cryptic a lot of money. We're talking hundreds of thousands if they would win the case. If they lose, it would be a lot more. So, as a response to the overall fear of the official forums, I wanted to make another warning to those who roam on these. Know the risks, that's all I ask. I cannot tell you what to do, but know the consequences of your actions. Some Dev comments: GMTiyshen wrote:The IP Violation policy stands, regardless of who's account it is. Lets say that Stan Lee made an account and created Spiderman as a character. We would still remove it. If you see IP clones running around in CO, please report it by sending a GM Support ticket. With the large amounts of new players, we will be seeing these a lot, as most do not read the IP Violation rules. Click meThank you for reading. PS. Please don't feel like I am pointing anyone out. This is meant as a friendly reminder to make sure that you get to keep your characters, Cryptic gets to keep their money, and our game can improve.
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Post by rpgamerd00d on Feb 25, 2011 13:33:24 GMT -5
Fair Use
Fair use is a judicial doctrine that refers to a use of copyrighted material that does not infringe or violate the exclusive rights of the copyright holder. Fair use is an important and well established limitation on the exclusive right of copyright owners. Examples of fair use include the making of braille copies or audio recordings of books for use by blind people, and the making of video recordings of broadcast television programs or films by individuals for certain private, noncommercial use.
Examples of fair use typically involve, according to the Copyright Act of 1976, the reproduction of authored works for the purpose of "criticism, comment, news reporting, teaching …, scholarship, or research" (17 U.S.C.A. § 107). The same act also establishes a four-part test to determine fair use according to the following factors: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for, or value of, the copyrighted work (17 U.S.C.A. § 107).
It is usually considered fair use of an authored work to take small quotations or excerpts and to include them in another work, as when quotations are taken from a book and inserted into a book review. However, courts have found that such quotation is not fair use when material is taken from unpublished sources, as happened in the 1985 case Harper & Row v. Nation Enterprises, 471 U.S. 539, 105 S. Ct. 2218, 85 L. Ed. 2d 588.
The Harper case involved publication by The Nation magazine of quotations from Gerald R. Ford's unpublished memoir, A Time to Heal. Harper & Row, publisher of the memoir, sued The Nation, claiming that the magazine's actions had caused it to lose a lucrative contract with Time Magazine to publish excerpts from the memoir. The Court ruled in favor of Harper, citing the economic value of first publication to the copyright holder as an important factor in its decision. It found that The Nation had infringed Ford's copyright by becoming the first publisher of his original expression, thereby inflicting economic losses on Ford. It rejected The Nation's argument that it was simply reporting news. Lower courts have subsequently applied the Court's reasoning to other cases involving quotations from unpublished works. In Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987), a federal appeals court blocked publication of a book that used extensive quotations from unpublished letters of the author J. D. Salinger. The court ruled that the author retained copyright ownership of the "expressive content" of the letters, even when the letters themselves were deposited in university library collections.
Parody often constitutes fair use of copyrighted material. In cases involving parodies of copyrighted works, courts typically assess the purpose and intent involved in taking material from the original expression, and whether or not the author of the parody has borrowed a reasonable amount of material in producing the parody. For example, in the 1994 case of Campbell v. Acuff-Rose Music, 501 U.S. 569, 114 S. Ct. 1164, 127 L. Ed. 2d 500—which involved a parody by the rap group 2 Live Crew of the Roy Orbison song "Pretty Woman"—the U.S. Supreme Court ruled that a parody could be fair use under copyright law even if it is created for commercial purposes.
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It seems to me that the 1st test of fair use would indicate that you can create a "known" character in Champions Online, with the same name, look and powers, because you are not profiting from its creation.
So, in reality, the only actual reason that you can't create clones is that Cryptic put that as THEIR RULE in the EULA.
i.e. its not illegal to do so. Its against Cryptic rules. That is the real bottom line.
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Post by PoochieHellhound on Feb 25, 2011 13:45:07 GMT -5
So, in reality, the only actual reason that you can't create clones is that Cryptic put that as THEIR RULE in the EULA. i.e. its not illegal to do so. Its against Cryptic rules. That is the real bottom line. If that was true, Marvel would not have been able to take Cryptic to court about this in City of Heroes. EDIT: Melkathi explained it better than I did, but I'll still leave the quote. From the dev post that I linked to:
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Post by melkathi on Feb 25, 2011 13:49:32 GMT -5
It seems to me that the 1st test of fair use would indicate that you can create a "known" character in Champions Online, with the same name, look and powers, because you are not profiting from its creation. So, in reality, the only actual reason that you can't create clones is that Cryptic put that as THEIR RULE in the EULA. i.e. its not illegal to do so. Its against Cryptic rules. That is the real bottom line. If I understand the old law suit correctly, the point is that Cryptic benefits from you creating the copyrighted character. It is not about you creating the character but about characters being created in Cryptic's game. It fails exactly the first test: the creaton of copyrighted characters in game generates profit for Cryptic. Marvel did not sue the players of CoH. It is not illegal for you to pretend you are spiderman. It is illegal for Cryptic to allow you to do so in a believable way in their game.
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Post by rpgamerd00d on Feb 25, 2011 14:15:32 GMT -5
It seems to me that the 1st test of fair use would indicate that you can create a "known" character in Champions Online, with the same name, look and powers, because you are not profiting from its creation. So, in reality, the only actual reason that you can't create clones is that Cryptic put that as THEIR RULE in the EULA. i.e. its not illegal to do so. Its against Cryptic rules. That is the real bottom line. If I understand the old law suit correctly, the point is that Cryptic benefits from you creating the copyrighted character. It is not about you creating the character but about characters being created in Cryptic's game. It fails exactly the first test: the creaton of copyrighted characters in game generates profit for Cryptic. Marvel did not sue the players of CoH. It is not illegal for you to pretend you are spiderman. It is illegal for Cryptic to allow you to do so in a believable way in their game. What that tells me is that we could make parodies of such characters, and Cryptic would be covered and would not change your character, since parodies are allowed.
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Post by PoochieHellhound on Feb 25, 2011 14:17:06 GMT -5
What that tells me is that we could make parodies of such characters, and Cryptic would be covered and would not change your character, since parodies are allowed. You are correct. Actually, in the article I linked to, there is a link to a parody characters that Cryptic see as okay.
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Post by not1stepbackwards on Feb 26, 2011 0:06:52 GMT -5
If I may be so bold, IMHO I am the worst violator of this rule. Yet I do not see this warning as a criticism, but as a friendly heads-up that is actually an opportunity for me. In my case, I never used the character's actual trademarked name. I always named my characters based on a reference that only hardcore fans would know. Still, I will delete these characters ASAP. Here's why. 1st, although I'm proud of these creations, they'll always be a shadow of their original versions. It always nags at me, like a sort of built-in inferiority complex. To my credit, in some cases I think my re-imagining was better than the designs they were based on, truer to what the creators wanted to achieve. 2nd, it wasn't out of sheer laziness that I did this, but what I wanted was to create a reference point for other players. In-game, they liked these recognizable characters. However, taking other IPs is not the only way...mythology and history has many famous figures that are public domain. 3rd, I have my own perspective on this. It is not illegal for you to pretend you are spiderman. It is illegal for Cryptic to allow you to do so in a believable way in their game. Your argument makes perfect sense. I'm no legal expert and I won't argue with you. However, I have also been in a situation, when I was working in a small browser-based game company, where I faced something similar. It was a nuisance suit, but the legal headaches just stopped us from working on everything else. We had to dedicate our work to resolving this issue, talking to lawyers, etc. The worst part was such a process was really just a game in itself...where the only winners were the lawyers on both sides. It was very clear to me that, although officially they weren't colluding, even our lawyers were just letting the process play out because they can get a decent, easy-to-earn fee from us. Neither side's lawyers wanted to go to court, as that's too much work, but they sure enjoyed charging us for our meetings and phone calls with them. The lesson is this - do you want Cryptic to waste their resources on lawyers or to dedicate them to new game offerings? Personally, I'm choosing the latter, and I'll gladly delete the characters I have that "borrow" from commercial IP. So I'm trying to agree with you. It's not our fault, but it is our problem. Let's not point fingers and solve the problem. --- Edit - I've deleted my thoughts on Public Domain characters as that's against a main point I was making, where I just want to avoid causing Cryptic legal headaches. Taking from either that or Commercial IP puts CO in an awkward position. I would still like to be more helpful than saying "rules are rules" by creating character concept ideas to help others and so on...but let me replace my deleted characters 1st.I'm actually quite excited about deleting my characters and doing something new. Otherwise, we're just being like this Bollywood movie (I dare you to watch this to the end and play your Spiderman in CO again): www.youtube.com/watch?v=f5Pjo0WjBcs
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Post by Paul on Feb 26, 2011 0:56:40 GMT -5
Here's the kick. Cryptic's not going to play this "It's public use, it's not public use" game. Obviously, if you make a character based off historical or mythical reference you're going to be ok. However, If you name it Thor (well attempt too anyways), and make it look like Thor from the movie, or Goku from DBZ, regardless of if it's from literature or not they're most likely going to make you change. Why? Because it's a *censored* from hell to go through and make sure every person that's reported isn't using someone from a copyrighted material. It's more easier to just slap the EULA on and go with that. It saves them time from having to dedicate an army to deal with legal issues, and it lets us have a game. That said, the EASIEST way to skirt this is if you LOOK like say Iron Man, But call yourself totally different and have a few differences (say an emblem on your power chest thingy). The killer is looking like said person and using the name. That is the slap that will get you made Generic Man.
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Post by Admin on Feb 26, 2011 1:28:44 GMT -5
i.e. its not illegal to do so. Its against Cryptic rules. That is the real bottom line. That is exactly right, and no different than any number of things like inappropriate language or cheating/hacking. Those things are not "illegal", but they are against Cryptic's rules. So if you want to play their game, you have to follow their rules.
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Post by mrfunsocks on Feb 26, 2011 1:38:17 GMT -5
The lawsuit against Cryptic in CoH was thrown out. It definitely falls under the Fair Use rules. I don't think they're worried in the least that they'll lose a lawsuit to Marvel or DC and go out of business.
But do you have any idea how much it costs to pay lawyers just to file the papers to defend yourself against a spurious lawsuit? There's a reason 99% of lawsuits a corporation faces are settled quickly. And a reason they go to ridiculous lengths to avoid them happening again.
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Post by not1stepbackwards on Feb 26, 2011 3:24:23 GMT -5
I was just coming back to say I deleted my characters (I did save their costume designs first, just as a reference to what I shouldn't ever do again). Upon reading your replies, I immediately deleted my section on Public Domain characters. This was what convinced me: The lawsuit against Cryptic in CoH was thrown out. It definitely falls under the Fair Use rules. I don't think they're worried in the least that they'll lose a lawsuit to Marvel or DC and go out of business. But do you have any idea how much it costs to pay lawyers just to file the papers to defend yourself against a spurious lawsuit? There's a reason 99% of lawsuits a corporation faces are settled quickly. And a reason they go to ridiculous lengths to avoid them happening again. This is exactly it. In my experience above, we never went to court, but the whole process to prevent that drained the passion I had from working on a game. So I edited my post above as it was a bad idea in retrospect. Sorry about that. It's not about winning or losing lawsuits or arguments. Just having the matter come up is already a huge cost to everyone. Since I already "skirt" the rules with my characters, I still deleted them to avoid even the appearance of the issue. I think that's proof I'm fully committed to this initiative. My bottom-line wasn't just out of policy, but also out of politeness. As a Silver member, I'm already playing the game for free at the moment, so the least I can do is to not create additional costs (on top of the server space and bandwidth). For example, even though I doubt my characters will ever be cause for a lawsuit against Cryptic, I bet there's a dev working there whose job involves having to monitor us. I want to make his/her job easier because I was in a similar position and it sucked.
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Post by rpgamerd00d on Feb 28, 2011 10:44:24 GMT -5
As a side note.... why does Cryptic have an Archetype, which wields 1 sword, named "Blade" given that there is a known, bad-ass Day-walking Vampire movie chain with the same name?
Just sayin...
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Post by PoochieHellhound on Feb 28, 2011 12:30:56 GMT -5
As a side note.... why does Cryptic have an Archetype, which wields 1 sword, named "Blade" given that there is a known, bad-ass Day-walking Vampire movie chain with the same name? Just sayin... Because the comic character Blade is nothing like the Archetype, and to be a clone there has to be more that is the same than just the name anyway. Now, if someone made a Blade, named it Blade, ran around in a trenchcoat and had a backstory about being a half vampire? That would be a clone. They could have picked another name, though, for sure. I didn't think of it that way.
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Post by rpgamerd00d on Feb 28, 2011 13:20:03 GMT -5
As a side note.... why does Cryptic have an Archetype, which wields 1 sword, named "Blade" given that there is a known, bad-ass Day-walking Vampire movie chain with the same name? Just sayin... Because the comic character Blade is nothing like the Archetype, and to be a clone there has to be more that is the same than just the name anyway. Now, if someone made a Blade, named it Blade, ran around in a trenchcoat and had a backstory about being a half vampire? That would be a clone. They could have picked another name, though, for sure. I didn't think of it that way. So, since I didn't name it Blade, I'm ok, then, right?
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Post by Deleted on Feb 28, 2011 13:26:34 GMT -5
Because the comic character Blade is nothing like the Archetype, and to be a clone there has to be more that is the same than just the name anyway. Now, if someone made a Blade, named it Blade, ran around in a trenchcoat and had a backstory about being a half vampire? That would be a clone. They could have picked another name, though, for sure. I didn't think of it that way. So, since I didn't name it Blade, I'm ok, then, right? If your sword wielding trenchcoat wearing half vampire character isn't named specifically "Blade" you should be good.
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