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  Bootlegged Superheroes Safer in ‘Second Life’?  
 
 
Posted 2007-06-19 by Tony Walsh
 
 
     
 
Bootlegged Superheroes Safer in ‘Second Life’?
Spider-Man crawls 'Second Life' walls. Photo credit: Onder Skall.
A couple of years ago, superhero-comic publisher Marvel sued superhero-game makers NCSoft and Cryptic for copyright and trademark infringement. Marvel felt that NCSoft/Cryptic's game City of Heroes induced infringement by giving players tools to create facsimiles of proprietary characters such as Spider-Man and The Hulk. The issue was settled amicably the same year, and Cryptic Studios is now officially on board for the development of Marvel Universe Online.

Elsewhere in the metaverse, the sandbox-style social world of Second Life has been wall-crawling with bootlegged superheroes for about as long as City of Heroes. Using Second Life's tools, it's not only possible to re-create a Marvel character's appearance more accurately than in City of Heroes, but to sell these facsimiles like Halloween costumes for a virtual currency easily convertible to real dollars. So why was City of Heroes threatened by Marvel while Second Life has been ignored? I asked attorney Benjamin Duranske, author of the blog Virtually Blind, for his informed opinion.

"I think it's a two part question of (1) economics and (2) control over the creation process," Duranske told me via email. "First, economics. City of Heroes was a single target making enough money that it was worth the suit. No individual Second Life user who is selling avatars is really making enough to make it worthwhile from an economic perspective."

"Second, perceived control. It's far easier for [Second Life maker] Linden Lab to argue that it's not responsible for the infringing content than it would have been for NCSoft, since NCSoft (a) created a specific superhero sim and (b) gave users tools to make the avatars look like specific trademarked / copyrighted super heroes (for example, the complaint points out that you can use the Creation Engine provided by NCSoft to make a 'giant green ... hero that moves and behaves nearly identically to Marvel's character [The Hulk]') That's a lot more likely to be considered contributory infringement than just giving people generic tools to make avatars that could, with a lot of effort and skill, ultimately be made to look like superheroes..."

Second Life isn't entirely off the hook, however, even if it's unlikely comic companies like Marvel would sue for contributory infringement. Trademark holders such as Marvel have an obligation to defend protected character names and logos. "If they don't," Duranske noted, "it makes subsequent enforcement harder."


Photo credit: Onder Skall.
 
     
 
   
 
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