Betamax True Super Hero in Gaming Case

The sun is setting for Marvel's lawsuit against City of Heroes publisher NCsoft Corporation and developer Cryptic Studios. The comic book publisher claimed that the online game's "hero creator" tool made it possible for users to (re)create their trademarked super heroes like Wolverine, the Hulk and Spiderman. Marvel filed a lawsuit claiming, amongst others, that the defendants infringed Marvel's trademarks and were liable for this alledged infringement by the users of City of Heroes.

Yesterday a LA District Court Judge decided that Marvel's claim of this contributory infringement should be dismissed, referring to the 1984 Betamax case:

"It is uncontested that Defendants' game has a substantial non-infringing use. Generally the sale of products with substantial non-infringing uses does not evoke liability for contributory copyright infringement".

The Judge also dismissed Marvel's call for a "Judicial Declaration" that the defendants were no online service providers under the Digital Millennium Copyright Act , which offers additional protection in these cases. These dismissals leave only minor claims by Marvel on the table.

The Betamax case proved to be the true super hero in this lawsuit. Now see if it will withstand the kryptonite that the legal Lex Luthors of the entertainment industry will bring to the Supreme Court in the upcoming Grokster case.

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Later: Scrivener's Error has a more substantial analysis of the case, specifically on the trademark issue (of Captain America). Also a link to the ruling [PDF, 350 k].

Update: Copyfight points out that "There have been a number of reports either suggesting or stating outright that NCSoft had a big victory in the recent ruling in Marvel v. NCSoft -- causing not a little confusion in the blogosphere, even here among the contributors at Copyfight." That "not a little confusion" is in this post, which, admittedly, lets the sun set too fast too early for Marvel. My Betamax enthousiasm overtook me on the facts. Be sure to check out the Copyfight posting.