My cow-orker Fred von Lohmann has written a great, scathing attack on Marvel Comics’ evil decision to sue City of Heroes, an online game, because some of City of Heroes customers have designed characters that look like Marvel superheroes.
Yes, you read that right — Marvel’s claim is based on the idea that private individuals who pretend to be Wolverine for fun in a video game are breaking the law. Since when is it illegal to pretend to be your favorite superhero? Should parents be policing their kids, lest they be caught “pretending without a license”? Were all those drawings of the X-Men on grammar school notebooks evidence of infringement? And what about all those homemade superhero Halloween costumes?
Of course, Marvel may well be wrong about the law. From a trademark point of view, it is difficult to see how these kinds of noncommercial activities could satisfy the “use in commerce” threshold imposed by federal trademark law. Copyright lawyers will reason that these activities, even if technically infringing, are almost certainly sheltered by defenses like fair use or de minimis non curat lex. Marvel, for its part, will doubtless say that its legal beef is with the operators of “City of Heroes,” not the players (pay no attention to that pesky complaint, that’s just legal mumbo jumbo).
But all of these lawyerly answers miss a more fundamental point: Why are everyday expressive activities in the real world — such as joining some neighborhood kids in the backyard for a bit of superhero role playing — suddenly exposed to the depredations of copyright and trademark lawyers when they move online?