NCsoft secures partial victory in Marvel lawsuit

  • By Curt Feldman, GameSpot
  • Posted Mar 11, 2005 8:11 am PT

[UPDATE] In a ruling Wednesday, judge cuts away at Marvel's lawsuit against City of Heroes publisher NCsoft; some teeth taken out, though some remain.

In a ruling handed down Wednesday, the federal judge presiding over the lawsuit Marvel Enterprises brought against game publisher NCsoft has severely limited the overall scope of the suit.

The ruling threw out six causes of action Marvel had based its copyright infringement claim on. In addition, the court struck, or deleted, portions of Marvel's second amended complaint.

"Defendants [NCsoft and the game's developer, Cryptic Studios] argue that the specific exhibits and corresponding portions of Plaintiff's [Marvel's] Second Amended Complaint should be stricken as 'false and sham' because the allegedly infringing works depicted in the exhibits and referred to in the pleading were created by Plaintiffs themselves. For [that] reason, the court agrees."

Apparently, a number of drawings depicting the alleged copyright infringement were drawn by Marvel staffers or contractors themselves--contrary to claims made in the Marvel complaint. Those depictions were thrown out of the Marvel complaint by Judge Gary Klausner, who presides in this case.

In addition, six causes of action in the current complaint were also thrown out by Judge Klausner, including direct infringement of registered trademark, contributory infringement of registered trademark, various infringement of registered trademark, contributory infringement of common-law trademark, and various infringement of common-law trademark.

Still, there are sufficient teeth remaining in the complaint to cause any game publisher concern, specifically the claim of direct copyright infringement and contributory copyright infringement.

A statement released by NCsoft this morning stated, "Although the judge allowed certain claims to survive the motion to dismiss, NCsoft and Cryptic Studios are pleased with the result and are confident that both the law and the facts will support their case."

Marvel has yet to release a statement on the matter.

GameSpot spoke with Cryptic Studios' Jack Emmert this morning prior to a GDC panel he was participating in. He limited his discussion on the topic due to the matter's pending status, but said after hearing of the ruling earlier today, he was "pleased."

In the lawsuit, Marvel claims the character customization functionality in City of Heroes lets players create superheroes that closely resemble trademarked Marvel characters.

This week's ruling is but one more step in this case, filed November 10, 2004, and means only that the overall case against NCsoft has been reduced in scope--Marvel Enterprises Inc., et al. v. NCsoft Corporation, et al. remains on the docket in US District Court Central District of California. The final chapter has yet to be written.

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