Online Game Maker NCsoft Enjoys Early Victory in Marvel Comics Copyright/Trademark Case as Federal Judge Rejects Claims
A U.S. district court judge in Los Angeles dismissed several key claims made by comic book publisher Marvel Enterprises, Inc. in its trademark and copyright infringement case against online computer game publisher NCsoft Corporation and game developer Cryptic Studios. Marvel sued NCsoft and Cryptic Studios in November of last year, claiming that the City of Heroes® online game allows players to imitate comic book characters owned by Marvel.
In his March 9th ruling, Judge R. Gary Klausner struck allegations of purported acts of infringement by players when it was proven that Marvel had falsely manufactured them. He agreed with NCsoft that some of Marvel’s allegations and exhibits should be stricken as “false and sham.” The judge dismissed more than half of Marvel’s claims, including that the defendants directly infringed Marvel’s registered trademarks and are liable for purported infringement of Marvel’s trademarks by City of Heroes’ game players. The judge also dismissed Marvel’s claim for a judicial declaration that defendants are not an online service provider under the Digital Millennium Copyright Act. The claims were dismissed without leave to amend, meaning that Marvel cannot re-file them.
Although the judge let the copyright claims stand, he ruled that it was “uncontested” that the City of Heroes had a “substantial non-infringing use,” citing the Supreme Court’s 1984 decision holding that Sony’s sale of Betamax video recorders did not make it liable even though people could use the devices to make unauthorized copies of broadcasts. As a result, to prove its claim, Marvel will have to show that NCsoft knew that players were using the game to make infringing characters and failed to remove them.
Click here for a copy of the opinion provided by the Court.
Cooley Godward LLP represents NCsoft Corporation in this matter. The Cooley team includes partners John Crittenden and Peter Willsey, and associates Adam Barea, Alex Sears, and Chaise Bivin.