Marvel/Disney Served with Copyright Termination Notice by Kirby Estate

In breaking news, the estate of Jack Kirby, co-creator of a range of successful comic franchies from Captain America, X-Men, Hulk, The Fantastic Four, and more, has served notice to Marvel and Disney, and their film studios (Sony, Universal, Paramount, and 20th Century Fox) terminating their copyright in these IPs. The estate has also retained veteran IP litigator Marc Toberoff to go after any future claims.

There doesn’t appear to be any immediate danger for EXISTING games based on those IP’s, however, future games might be in jeopardy. According to comic news outlet bleedingcool, his copyright claim would exist from 2014. This would mean Marvel Ultimate Alliance 2 is safe, but look out Marvel Ultimate Alliance 4.  Toberoff has experience in this realm, he’s been successful on an identical claim on behalf of the Siegel estate, regaining copyright in Superman material. This is something we’ll obviously be following very closely, as the financial implications from forced licensing (let alone the IP issues) could have huge effects on some very popular game franchises.

Popularity: 10% [?]

Eros LLC sues Linden Labs over Second Life Infringement

In an interesting move, Eros LLC, a maker of Second Life virtual sex products, has sued Linden Labs, the developer and publisher of Second Life, for a bevy of causes of action including trademark infringement, copyright infringement, DMCA violations, and tortious interference. Eros, who some readers may remember as the plaintiff in a previous sex bed case, is claiming that Linden is profiting immensely from the sale of illegally copied goods protected under Eros’ marks. The difference this time lies with the defendant; while Eros was previously going after the individual copiers, this time they’re going after Linden themselves. Stephen Wu, who will be presenting a discussion at Engage! Expo/Digital Law Conference entitled “Intellectual Property Megasuit: Could it Happen to You” suggests that Eros may be seeking to replicate Viacom’s successes against Youtube and Google. “It’s hard to judge, but perhaps you’ll see some better activity on behalf of Linden’s to reform their system, and maybe get a settlement in exchange.”

The broader issue, Wu warns, is what effect this may have on other virtual worlds and MMOG owners. Already faced with one landscape changing mega-litigation to watch (the NCSoft/Worlds.com patent suit), virtual worlds owners will now have to “get their houses in order” as far as IP and DRM are concerned, lest they become the next targets. “There is risk for other virtual world owners. If they don’t have their own protections for copyright and trademark owners, they may see themselves getting sued from this firm [KamberEdelson] or a similar plaintiff,” says Wu. KamberEdelson, according to Wu, is on the hunt for what they perceive to be unfair business practices — they were involved in the recent Amazon suit over the pulling of digital copies of Orwell’s 1984 from Kindle owners. In closing, Wu warns, “This is not a one-off event. This is going to be a prime form of litigation in the near future.”

For further analysis, Patent Arcade is tracking the suit as well. The complaint can be viewed in full here.

Popularity: 4% [?]

Dr. Tim Langdell resigns from IGDA Board

An update to our prior discussions on the trademark scandal surrounding Dr. Tim Langdell: as of yesterday, Dr. Langdell has resigned from the IGDA board. This obviously invalidates the need for the special meeting and vote to remove him. We will continue to discuss the trademark issues surrounding the incident at our PAX panel, and representatives from both sides of the removal debate have confirmed that they will be in attendance. We’ll keep you updated if there is a statement from Dr. Langdell.

Popularity: 5% [?]

Five Silliest MMO Lawsuits

Ignoring how terribly passé Top (x) lists are, I have to call this one out for being one of the worst of the bunch. MMORPG.com, which I’ve always considered to be an otherwise decent site, has released an abysmal list of the “Five Silliest MMO Lawsuits“, written by someone with a below-average understanding of the law in general. (Actually there aren’t just five, they include an “honorable mention).

(UPDATE: After receiving my criticism from this article, the author has changed the name from Five Silliest MMO Lawsuits to “Five Memorable MMO Lawsuits”. The factual inaccuracies remain the same, however.)

Here’s the rundown:

• Mythic v. Auran: This one wasn’t even a lawsuit; it was apparently a C&D over a clearcut case of trademark infringement. What’s silly about this, you may ask? The author of the article doesn’t understand what a trademark is. “Mythic coined a term and wanted to hang on to it. I just don’t necessarily understand why they would want to stop other companies from using it. It’s not like they have the idea behind RvR trademarked.” Well, duh. You don’t trademark an idea. The whole point of a trademark is to protect a mark associated with YOUR good from being used by other companies to associate with THEIR good, and thus lose its distinctiveness as being recognizable as yours. When you think of RvR, what do you immediately think of? Mythic games. You think Warhammer Online, or I guess Dark Age of Camelot if you’re old school. To top it off, the author doesn’t understand likelihood of confusion, by way of the line “Even sillier than the time Mythic sued “Mythica” over its name. Mythica was eventually cancelled by Microsoft in 2004.” Yes, god forbid Mythic protect it’s own brand name from another mark that is confusingly similar (to the point of only being 1 letter different).
• Esther Leong v. Square Enix: They don’t even manage to get the first line right on this one. “Looking only back to June of this year, we saw a lawsuit from a lone individual named Esther Leong against Square Enix…”. Except, it wasn’t from a lone individual. It was a class action on behalf of all FFXI players similarly situated. “This begs the question: How many accounts did this woman have?” Facepalm. They also go on to get the merits wrong while having them right in front of their face. “Please, oh please, tell me that this person didn’t file a suit claiming to have not known that there was a fee to play the game, and then not knowing that the company would apply rules to their game and reserve the right to stop letting you play if you didn’t pay your fee.” As a matter of fact, no. They filed suit because Square advertised one fee, then presented another with hidden charges, and made it nearly impossible to actually cancel your account, all while upping your fee if you payed late; as well as a complaint that they were not clearly informed that they did not actually purchase the game (and all ownership rights appurtenant thereto), but a license. “It can’t possibly be that ridiculous, could it? COULD IT?” No. No it wasn’t. 0 for 2 MMORPG.com.
• Kohnke Communications v. Perpetual Entertainment: They don’t even bother to justify this one as being silly: in fact, MMORPG.com straight up admits that it was a cut and dry breach of contract and that Kohnke (now TriplePoint PR) got screwed out of money they were owed. 0 for 3.
• Garriott v. NCsoft: “Jokes aside, the facts around the suit actually see Garriott suing his former company for 27 million dollars in money lost in stock options when, he claims, his firing was internally re-structured to look like a resignation.” Another one where they don’t attempt to justify how silly it is that someone got screwed out of their money. 0 for 4. Not good MMORPG.com. Not good.
• Blizzard v. MMO Glider: Before I go any further, WTF? This is a case that actually had some legitimate precedential value to determine what constitutes copying of data into RAM under the MAI standard. And once again, there’s no justification for what makes the lawsuit actually silly. Glider, under Blizzard’s argument, was costing Blizzard money and not to mention that the broader issue of “Do you own the MMORPG software you buy” was implicated (as it was in the Leong case above). Even the EFF got involved on this one. 0 for 5.
• Finally, Worlds.com v. NCsoft: In the very first sentence “Speaking of bone headedly stupid trademark based lawsuits…” …. this is a patent suit, not trademark. But keep going: “Now, as stated previously, I’m not a legal expert,” (ed. No, really?)  “but this describes the most simplistic and basic workings of an MMO.” Congratulations. You’ve discovered that patents require a description of how things work. Since Worlds.com claims to have been the first to invent the 3d MMO (though there is a dispute as to whether there is prior art), there is nothing unusual about that claim. MMORPG.com then goes on to get the date of the patent wrong, (it has priority dating to 1996, not 2000, though the confusion may have been justified as there are two patents in question here). 0 for 6. Incidentally, we’ll be discussing Worlds.com with Ross Dannenberg of Patent Arcade on our panel at PAX this year.

It’s not unusual for a site to make factual errors in an article. We’ve been guilty of it before too. It IS, however, unusual for an entire article to be wrong both in premise and every single one of the 6 segments that constitute it. Shame on you MMORPG.com. For shame.

Updated: Italicized quotations for clarity, clarified that there are intentionally 6 items on the list.

Popularity: 34% [?]

Breaking: Petition Launched to Remove Tim Langdell from IGDA Board

As some of you may have heard, there has recently been a row over some trademark issues involving Tim Langdell, who was recently elected to the IGDA Board. The crux of the issue is that Tim holds a trademark in various uses of the mark “Edge” as used in relation to gaming. Tim has allegedly been aggressive about acquiring and enforcing his trademarks, which have allegedly resulted in at least one iPhone gaming with the word Edge in the title being removed from the Apple Store. Tigsource has compiled a very comprehensive list of articles involving Tim and the use of the mark.

There is now a  petition to remove Tim from the board. The petition’s author, well known narrative designer Corvus Elrod, had this to say:

I have started a survey which requires you to enter your IGDA
membership number when you vote. Once we have “yes” votes from 10% of
the membership (about 1400), I will bring it to the board directly and
force them to call a special meeting of the membership to vote on Tim
Langdell’s removal.

Corvus expanded further at Man Bytes Blog:

My feelings about Tim Langdell are of little consequence here, but I do feel like emphasizing that I feel calling his actions “trademark protection” is rather like claiming the aristocracy went on fox hunts to protect the hen house. It may be legal, but to base the financial success of your studio on predatory IP manipulation is ass-hattery of the worst degree. The fact that Langdell’s studio is surviving in this economy without having released a game in well over a decade is astounding. That it can even afford to litagate over the use of the word ‘EDGE’ when the big publishers are closing entire studios rather than suffer thinner-than-average profit margins is a danger to every single developer-independent or affiliated.

This is obviously a huge issue, especially for a very troubled IGDA. There have been recent questions in mainstream blogs and those of several high profile industry members questioning what exactly IGDA is providing to its members. The trademark issue further fans the flames of allegations that IGDA isn’t doing enough, and it’s being talked about by key industry figures, such as IGDA board candidate Darius Kazemi and board member Tom Buscaglia.

To be fair, the petition is not a slam job against Tim: as Corvus states “You’ll notice, I’ve included a “no” vote. I know members who do not wish to vote Tim Langdell off the board. If 10% of the IGDA membership is dead against this, it’s only fair they have a voice too.”

We’ll be tracking this issue further as it develops, and I’m hoping to discuss it at this year’s PAX 2009 Legal Issues in Gaming panel (which you should all attend!).

FULL DISCLOSURE: The author is a student member of IGDA and an IGDA GDC Scholar.

CORRECTION: The author of the petition is Covus Elrod, not Michael Lubker as originally reported.

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