Untangling Secondary Liability,
Comic Book Heroes and the DMCA,
and a Filtering Solution for Infringing Digital Creations

Britton Payne
Fordham University School of Law '07

Originally published as a note in the
Fordham Intellectual Property, Media & Entertainment Law Journal
Volume XVI Book 3
16 FORDHAM INTEL. PROP. MEDIA & ENT. L.J. 939 (2006)
Download the entire note here

Web Supplement

City of Heroes, an online superhero video game, allows its users to create their own characters, including many that infringe copyrights.   The game, created by NCsoft and Cryptic Studios, has been in use for about two years  and has earned tens of millions of dollars.   Marvel, the owner of many of the infringed characters, has licensed them for exclusive use in authorized video games and other media for over two decades,  and has earned billions of dollars.   Marvel sued the game-makers for both direct and secondary infringement.

Backstory and Examples of Infringing Game Characters

This case ultimately would have addressed the question left unanswered by the limited Grokster holding -- absent inducement, "under what circumstances [is] the distributor of a product capable of both lawful and unlawful use . . . liable for acts of copyright infringement by third parties using the product[?]"   As of December 14, 2005, the parties in Marvel v. NCsoft have settled their dispute, leaving this billion-dollar question of secondary liability unresolved for future Internet Service Providers ("ISPs").   This Note offers a resolution to the problem of character infringement in online video games with the BIFF Factors,  the String Solution  and the 7% Solution  that will apply wherever a technology enables its users to infringe copyright.

The Panels that Decided Superman v. Wonderman
Detective Comics, Inc. v. Bruns Publ’ns, Inc, 111 F.2d 432, 433 (2d 1940)

Comparison of Covers from Superman v. Captain Marvel
Nat’l Comics Publ’ns v. Fawcett Publ’ns, 198 F.2d 927 (2d Cir. 1952)

Comparison of the Aquaman and Plastic Man cartoons
with the infringing Manta and Superstretch

DC Comics, Inc. v. Filmation Assoc., 486 F. Supp 1273 (S.D.N.Y. 1980)

Comparison of Marketing Materials from Superman v. The Greatest American Hero
Warner Bros., Inc. v. Amer. Broadcasting Cos., Inc, 720 F.2d 231(2d Cir. 1983)
The Seven Essential Costume Elements of Superman and Wonder Woman
DC Comics Inc. v. Unlimited Monkey Business, Inc., 598 F. Supp. 110, 112 (N.D. Ga., Atl. Div. 1984)
A Legal Comparison of Black Nova and The Man Called Nova
In re: Marvel Entertainment Group, Inc, 254 B.R. 817 (D.C. De. 2000).

A Legal Comparison of Charles Atlas Ads and Flex Mentallo
Charles Atlas, Ltd. v. DC Comics, Inc., 112 F. Supp. 2d 330, 331 (S.D.N.Y. 2000)

  A Legal Comparison of Spawn and Medieval Spawn
 Gaiman v. McFarlane, 360 F.3d 644 (7th Cir 2004) (Posner, J.)

Creating Infringing Video Game Characters through the use of  "Skins"
Intercompany Homages
As long as the costumes are different, power duplication is tolerated

A City of Heroes 18-Month Game Diary with Screenshots

Sounds from City of Heroes

Comic Book Legal Citation Format

Download pdf of
Comic Book Legal Citation Format

Appendix A: Marvel v. NCsoft Motion Practice

Download pdf of Appendix A

Marvel's New Thunderbolts "City of Heroes?" Issue

Marvel's Infringing Character Screenshot Exhibits

City of Heroes Emblems

City of Heroes TM and (c) NCsoft
Superman, Batman, Shazam!, Whiz Comics, Wonder Woman, Flex Mentallo TM and (c) DC Comics. All Rights Reserved. Used with Permission.
Wolverine, New Thunderbolts, Colossus, Nova TM and (c) Marvel Entertainment, Inc. All Rights Reserved. Used with Permission.
Black Nova TM and (c) Marvin Wolfman. All Rights Reserved. Used with Permission.
Confessor TM and (c) Juke Box Productions
Greatest American Hero TM and (c)  Steven J. Cannell Prods.
Spawn TM and (c) Todd McFarlane Productions
Charles Atlas, Mac TM Charles Atlas Ltd.
Manta, Moray, Superstretch, Micro Woman TM and (c) Filmation

To order a print copy of the book with this note, contact the
Fordham Intellectual Property, Media & Entertainment Law Journal

This site is a supplement to an article in a scholarly legal journal for educational use only.
No affiliation or endorsement is actual or implied by the use of these images.
Terms and Conditions of Use