Marvel Forces site that hosts Skins for game Freedom Force to shutdown

[Ares]

http://198.65.99.89/forums/showthread.php?s=&threadid=4234

C'mon now, you didn't think there would be just one "Marvel furor" story going on at a time, did you? In a story reminiscent of when Buffy sites were targeted by 20th Century Fox, Marvel has gone after Internet sites featuring Marvel "skins" for the game Freedom Force.

 

The game is a popular PC-based game that allows players to be superheroes in a city, ultimately forming and joining teams and fighting criminals as they gain experience. One of Freedom Force's highlights is the high level of customization - that is, players can design their own superhero characters, allowing them to make wholly new characters (with specific powers and attributes) or create characters based on existing comic book characters. Essentially, it's like customizing a character in The Sims, but with the ability to add super powers.

 

While players could create their own designs for characters, obviously, many sought to include the look and powers of their favorite comic book characters in the game. As such several individuals have designed swaths of Marvel characters that can be downloaded from public sites and imported into the game and played. Jared Benson, one of the better known designers for Marvel skins and administrator of www.skindex.net has recently stated that he has received a letter from Marvel, ordering him to cease and desist in the creation and distribution of Marvel skins. No money was ever exchanged for the skins - within the skin community, they are freely traded.

 

The letter from Marvel's senior litigation attorney, Eli Bard said in part:

The property skindex.net is infringing is protected by the 1976 Copyright Act, 17 U.S.C. §101, et seq. The Copyright Act provides the owner of a copyrighted work, in this instance, Marvel, with, among other exclusive rights, the exclusive right to reproduce the work in copies and to distribute copies of the works to the public. The remedies for copyright infringement include the copyright owner's option to elect statutory damages which range from $500 ? $20,000 for each instance of nonwillful infringement, but which can escalate to $100,000 for each instance of willful copyright infringement. Attorneys' fees are also recoverable by a successful copyright infringement plaintiff.

 

A separate federal law, The Lanham Act, prohibits use of Marvel's famous, federally registered MARVEL, SPIDER-MAN, and WOLVERINE trademarks, among others, without permission. 15 U.S.C. §1125 of The Lanham Act also prohibits unfair competition and false designation of origin, as do state common law. The Lanham Act provides for treble damages and attorneys' fees in instances of willful trademark infringement, as well as disgorgement of profits, and injunctive relief.

 

Given the blatant bad faith evidenced by skindex.net, Marvel hereby demands your written confirmation that skindex.net has (1) removed all Marvel intellectual property and references to Marvel intellectual property from its website or any other site (or other location); (2) abandoned all unauthorized copying and distribution of the the Marvel intellectual property and (3) agreed to cease and desist from any and all other acts of unfair competition with Marvel.

 

Given the apparent willful nature of your actions, Marvel demands that skindex.net disclose all of its activities with respect to its use of Marvel's properties, including but not limited to all sales or distribution of any products bearing any Marvel intellectual property, the names and contact information for all companies that have purchased or downloaded those items, as well as the addresses of any other websites where the infringing properties have been posted. In addition, skindex.net must disgorge ally and all profits illegally made from its use of Marvel's property and enter into a permanent injunction in which it agrees never to infringe Marvel's property again.

 

If skindex,net fails to provide this written confirmation by June 20, 2003, Marvel is prepared immediately to take all appropriate action to protect its valuable intellectual property rights, which may include seeking an injunction against further infringement, monetary damages, the cost of corrective advertising, and Marvel's costs and attorneys' fees.

 

Benson, agreeing that it was fully within Marvel's right to do such, took the skins down, and closed www.skindex.net, noting that over the three years he'd been creating Marvel skins, he'd received support and encouragement from Marvel staffers and executives.

 

Benson said: "I, of course, am happy to oblige as it is their legal right to control what is done with their copyrighted property.

 

"I do find it unfortunate that the current regime at Marvel Enterprises Inc. finds that an excited and enthusiastic fan community is a threat to their business as is evidenced in their notice. They seem to have mistaken this paltry fan-site and it's collection of fan-art with some kind of corporation out to steal revenue from them with misdirection. I have been ordered to disgorge any and all profits made from the distribution of these materials.

 

"Never has the Skindex, as a website nor I, Jared Benson, as it's owner and chief contributor made a single cent or more in profit or even generated revenue of any kind from this endeavour of appreciation for my favourite comics. Moreover, I have incurred a great deal of expense, both personal and financial, to maintain what is essentially a monument of honour to the creators of each of these characters and to the company that provides the fans with wonderful entertainment on a monthly basis."

 

Benson later said that he was retiring from creating skins, his enthusiasm for the hobby gone.

 

Skindex was probably the most popular of the various skins sites for Freedom Force, many of which will more than likely receive their own letters shortly.

 

The move by Marvel is twofold - as Twentieth Century Fox did in 1999 with Buffy, Angel, The Simpsons, Millennium and other shows, Marvel is protecting what is sees as the dilution of it's trademarks. The move is also one made in order to protect the Marvel trademarks in this specific category of potential exploitation.

 

Freedom Force was the first superhero game of it's kind to hit the shelves, Cryptic Studios' City of Heroes is slated to arrive in stores in early July, while a Freedom Force sequel is in the works as well. Ideally, Marvel would like to see its characters kept away and out of those games, as Universal/Vivendi has the rights to a Marvel superheroes massively multiplayer persistent world game, and being able to be Spider-Man in Freedom Force or City of Heroes may mean lost sales for the eventual Universal game (which, according to the latest PC Gamer magazine, is moving along very slowly, if at all, and won't see a release before 2005). Given the game in development, it's very unlikely that Marvel would license fans to create their own Marvel skins in any kind of legal agreement.

 

While, in light of Marvel's recent public drubbing by fans over any given matter, it may have seemed like a better decision to allow Universal to go after the Marvel skinners, in a corporate arena that has Marvel fighting Sony, claiming that it took too many liberties with Spider-Man, it's unlikely Marvel would allow Universal to take any steps in protecting its characters, even though it would have pulled some of the litigious spotlight off of Marvel.

 

At the same time, as Benson agreed to above, requesting a cease and desist is within Marvel's rights, and in a fashion, it a characteristic of Marvel of recent months, as a company very protective of it's properties now that it has been reminded of just how much money can be made from them.