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If it had gone to court, it could have been one for the ages - a landmark, precedent-setting case involving intellectual property rights, how far fans could go in the expression of their passion for comic characters, how many individual characteristics combined equal a character, as well as the culpability of a company that gives individuals the tools by which they could infringe copyrights of a third party.


Instead, Marvel vs. NC Soft/Cryptic Studios (the distributor and designers, respectively of City of Heroes/City of Villains) was settled out of court, “amicably,” according to a joint statement released Wednesday.


Marvel filed suit against NC Soft and Cryptic in November of last year, claiming that in creating and selling the City of Heroes game, NC Soft was allowing players to create characters that infringed upon the copyrights of Marvel’s intellectual properties. Marvel also claimed that several of the characters created expressly for the game infringed upon their copyrights and trademarks. Additionally, Marvel had been, for years, working to develop its own MMORPG based on and in the Marvel Universe.


NC Soft argued in a response to Marvel’s initial complaint, that characters named after third party properties were not allowed to be played in the game, and that, given the character creation engine of the game, similarities to Marvel characters may exist, but constitute a fraction of the possible outcomes of player-designed characters.


In March, the US District Court threw out several key claims brought forth by Marvel, while limiting both the scope of the suit and the damages Marvel could possibly be awarded. Also, in early 2005, NC Soft fired back at Marvel, stating that characters in screenshots Marvel used as exhibits in their original complaint and claimed were players found in the game were in fact, created by the attorneys for Marvel in an attempt to prove their point that characters with names that infringed copyrights could be created in City of Heroes. Marvel’s counsel later admitted this to be the case with three of the characters shown in the exhibits it submitted.


In August, NC Soft complained that Marvel had infringed upon their copyrights, with the April issue of New Thunderbolts, which promised “A City of Heroes.”


Finally, in October, an Amici Curiae (friend of the court) was filed in support of NC Soft’s position, and warning of the chilling effects that could follow if Marvel prevailed.


What ultimately brought about the settlement will most likely never be known (though many fans and advocates of both the game and Marvel have long pointed out that a City of Heroes Marvel Edition, licensed to NC Soft would have solved many problems from the start), as the terms of the settlement were not disclosed.


From the statement: “The parties' settlement allows them all to continue to develop and sell exciting and innovative products, but does not reduce the players' ability to express their creativity in making and playing original and exciting characters. Therefore, no changes to City of Heroes® or City of Villains' character creation engine are part of the settlement. The parties have agreed that protecting intellectual property rights is critically important and each will continue aggressively to protect such rights in accordance with all applicable laws. While the terms of the settlement were not disclosed, all parties agree that this case was never about monetary issues and that the fans of their respective products and characters are the winners in this settlement.”

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