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Copyright and Video Games

The train of examples of absurd applications of modern patent and copyright law is seemingly endless.

One that caught my eye is the trademark and copyright infringement suit by comic publisher Marvel (my favorite) over the role-playing video game City of Heroes. The game lets players create the look and abilities of superheroes who battle each other in a virtual city. While the game prevents players from using Marvel-trademarked names, it offers trillions of costume combinations, so that a player is free to make his character big and green and wear purple pants like the Hulk.

Marvel claims that the interactive game companies that make and sell the game (Cryptic Stuids and NCsoft) are responsible for the infringing uses of their players. According to Marvel, the game should not allow players to make virtual characters that are too similar to "The Hulk," "X-Men" etc.

"Marvel seeks unspecified damages and an injunction against the two companies to stop using its characters."Marvel claims "that the game's character creation engine easily allows players to design characters that are virtual copies of its own superheros, including "The Incredible Hulk.""

"The company singles out a game feature for creating "a gigantic, green, 'science-based tanker'-type hero that moves and behaves nearly identically" to the "Hulk." Players can also create a "mutant-based" hero powers and a costume nearly identical to Marvel's "Wolverine," according to the suit."

In other words, a kid playing a video game with another kid, by painting his character the color "green" and making him "strong" and wearing pants colored purple .... is somehow violating Marvel's property rights? Visualize some kid staying up late at night, in bed with the covers over his head and a flashlight on so mom won't catch him up late, sketching his favorite Marvel characters on a piece of paper. Little to the Marvel executives know, as they sleep soundly at night, that in some unknown 12 year old's bedroom, their "rights" are being "violated"! One is tempted to call this ridiculous and an abuse of copyright law, but it's not. It's the type of absurd result that is inevitable once property rights are legislated in non-scarce resources and are based on inherently arbitrary and non-objective criteria.


Stephan Kinsella

Stephan Kinsella is an attorney in Houston, director of the Center for the Study of Innovative Freedom, and editor of Libertarian Papers.

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