I know I've said something about this before in another thread.
The regulations that Cryptic set up is entirely to protect themselves. If you willingly create a character that you own in their system, they have every right to use images and promote their game with said images/video that includes your character.
It does not mean the character is owned by them. However you may not use the images created through the game engine as if you owned them. Cryptic has rights to all images that are created from the game. You may use them as reference but not for promotional material or monetary gain.
If you used the game to create an original character then copyright and recreate the character outside of the game for your own uses, they can still use the in game likeness as long as it appears in the game to further promote Champions. They can keep using produced images and video of the character that were made up until the character no longer exists in the game. This is either from you removing the character by deleting or renaming it.
They can still use that material after that point as they please, but not create future imagery or video as the character no longer exists in their system.
what happens if the game shuts down, is the contract still binding? (i dont actually want the game to shut down lol)
cuz my main is a character i wanted to make a comic or cartoon about :C
The contract is binding only so long as somebody holds the contract. It's no longer legally binding with Atari, obviously. If PWE were to completely fold up, then definitely.
However, seeing as how the EULA's provisions in this regard are there to protect them from being sued by lawsuit trolls (what I mean by that is covered below in my reply to ashensnow), it's PROBABLY safe to do what you want with your characters after the game shuts down. Basically you can't sue them because their butt is already covered by the contract, and they aren't making money off of your character nor can they.
Mind you, I'm not a lawyer, and I'm not saying it would be fine. I'm just speculating and personally doubt that PWE would even know the character is owned by them under the EULA once the servers are shut down. All the data would have been deleted, meaning they'd be deleting any evidence that they could use in court.
EULA that are not present at the time of purchase are of questionable legal virtue in CA. It would be interesting to see a claim to own something based on an agreement that may not be at all legally valid.
Of course if Cryptic actually goes to the effort to Trademark each and every character every created, and the creators do not...
Actually, any time they change the EULA, you have to re-agree to it. If you don't, they don't let you log into the game. Besides that, the terms where you sign over the rights to the works you create in the game have always been there.
Lastly, they don't have to trademark it. The terms are there to protect them from being sued by trolls. Imagine the following scenario...
Lawsuit Troll trademarks a character. They then recreate that character on Champions Online. Suddenly, thousands of other people see that character on Champions Online. Lawsuit Troll then files a lawsuit against Cryptic for unlicensed distribution of a trademarked character.
Sound farfetched? Well, it's already happened. Marvel's lawyers did *exactly* that back when Cryptic was still in charge of City of Heroes.
Make a character with a slight variation of what you have in the game. Change the hair color, costume color a little variation on any symbols. Parents were killed in your back story make it so they abandoned your character things like that.
What you did there, that can get you into a lot of legal trouble. It's not safe to give people legal advice without telling them that you're not a lawyer while doing it. Nor is it safe for a lawyer to give legal advice without telling them that the advice doesn't constitute an attorney/client relationship.
Also I'm going to have to say that changing the hair color or minor details in the bio might not be sufficient. What you're talking about there is called "fair use" and there is no clearly defined line in law as to what constitutes a valid fair use claim in this regard. Even then, the fair use claim only really has teeth if a judge accepts it. Making the claim before the trial does not make you immune to law suit. So really, relying on tenuous fair use claims can get you into a lot of trouble. Even if you win, you're still going to have legal fees to pay.
Therefore, I recommend erring on the side of caution. If you created an original character before, you can do it again and should do so. That way you don't have to worry about whether or not the judge accepts your fair use claim.
I know I've said something about this before in another thread.
The regulations that Cryptic set up is entirely to protect themselves. If you willingly create a character that you own in their system, they have every right to use images and promote their game with said images/video that includes your character.
It does not mean the character is owned by them. However you may not use the images created through the game engine as if you owned them. Cryptic has rights to all images that are created from the game. You may use them as reference but not for promotional material or monetary gain.
If you used the game to create an original character then copyright and recreate the character outside of the game for your own uses, they can still use the in game likeness as long as it appears in the game to further promote Champions. They can keep using produced images and video of the character that were made up until the character no longer exists in the game. This is either from you removing the character by deleting or renaming it.
They can still use that material after that point as they please, but not create future imagery or video as the character no longer exists in their system.
I see no real flaws in this, anything I have to say comes down to a matter of semantics, so I have no valid criticism to offer. Anyway, it's nice to see other people who understand how IP works.
I apologize for the wall of text. I'm replying to several people in one post.
No problems at all. Thank you for the well reasoned responses.
Actually, any time they change the EULA, you have to re-agree to it. If you don't, they don't let you log into the game. Besides that, the terms where you sign over the rights to the works you create in the game have always been there.
Absolutely. I am completely aware that the provision has always been there, and calls for us to re-accept when it is changed. That was not at all part of my point. In CA an EULA that is not present at the time of purchase (Fry's Electronics in Concord CA for me) may very well be invalid because it alters what CA considers a pre-existing contract (the purchase itself). Even having the EULA present at the time of purchase may not be sufficient to avoid that problem.
The same laws make it very possible that a company denying service implied in a contract (by accepting payment they are engaging in a contract for a service where there are no provisions for exception based on the acceptance any specific terms of an EULA) could very well get into hot water.
Lastly, they don't have to trademark it.
Oh, I wasn't suggesting that they had to TM characters, just that doing so would be an interesting tact considering the issues with EULA in CA.
The terms are there to protect them from being sued by trolls. Imagine the following scenario...
Lawsuit Troll trademarks a character. They then recreate that character on Champions Online. Suddenly, thousands of other people see that character on Champions Online. Lawsuit Troll then files a lawsuit against Cryptic for unlicensed distribution of a trademarked character.
Sound farfetched? Well, it's already happened. Marvel's lawyers did *exactly* that back when Cryptic was still in charge of City of Heroes.
Doesn't sound farfetched to me at all considering some of the lawsuits we see not only filed, but actually won
I know I've said something about this before in another thread.
The regulations that Cryptic set up is entirely to protect themselves. If you willingly create a character that you own in their system, they have every right to use images and promote their game with said images/video that includes your character.
It does not mean the character is owned by them. However you may not use the images created through the game engine as if you owned them. Cryptic has rights to all images that are created from the game. You may use them as reference but not for promotional material or monetary gain.
If you used the game to create an original character then copyright and recreate the character outside of the game for your own uses, they can still use the in game likeness as long as it appears in the game to further promote Champions. They can keep using produced images and video of the character that were made up until the character no longer exists in the game. This is either from you removing the character by deleting or renaming it.
They can still use that material after that point as they please, but not create future imagery or video as the character no longer exists in their system.
EULA that are not present at the time of purchase are of questionable legal virtue in CA. It would be interesting to see a claim to own something based on an agreement that may not be at all legally valid.
Of course if Cryptic actually goes to the effort to Trademark each and every character every created, and the creators do not...
^ This . Ashen better at words than me.
EULA are all over the place at the best of times , so if in doubt just dont.
Nepht and Dr Deflecto on primus
They all thought I was out of the game....But I'm holding all the lockboxes now..
I'll......FOAM FINGER YOUR BACK!
I have a question.... with all this talk about anything you write you're not allowed to keep etc..
What if i write a real life biography of myself then? Do they own me? in which case, i demand an allowance and LTS.
Also, sometimes i get depressive could i get in trouble for killing off their character, their property then if i did something stupid?
Also... Nepht/zenzenmasrissijdcs (Honestly.. i can spell it, but i didn't memorise it for this instance)
I think you're both mis-reading each other, to a certain extent.
Nepht.. i read all her (is it a her?)comments except one (It was a huge paragraph.. honestly i'm only human) But the part where you claim she said you made a video, she did not say that, she made a "IF" Statement.. IF you made any videos of the character in game, PWE owns it.. IF, she did not say you did, but IF you did..
zenzenmarrisaen (Am i getting better?) or metal? I think it was clear that the toon she meantioned was non-existant when she said it was a non issue so idk...
Also, a point about that Avengers Assemble tv show etc having to be renamed to avoid a clash of UK/US Copyright laws... yes... that's how it works, In the US it's stall The Avengers, they don't have the clashing copyright there, so they'll do it, they rename to Avengers assemble etc in countries where someone else has a smilar copyright to be allowed to have it there, i don't see how referencing this made any point though =\
I have a question.... with all this talk about anything you write you're not allowed to keep etc..
What if i write a real life biography of myself then? Do they own me? in which case, i demand an allowance and LTS.
Also, sometimes i get depressive could i get in trouble for killing off their character, their property then if i did something stupid?
Honestly that^ is just one of many reasons I personally think that EULA's are pure BS. They're just flimsy "legal" agreements full of legal babble making blanket statements as to what the company's rights are in any given issue that couldn't possible hold water in most cases in RL situations because even signing them in the first place could be a violation of those legal agreements if you were to take them literally every step of the way. If we were to believe what that portion of the EULA says to mean they literally own our characters, just by making a character we have already made in another game that has a similar clause in their EULA (which would include just about every MMO) we could already be in violation of at least one of those agreements if not all that may apply.
Also, check the End-user license agreement wiki entry for some interesting stuff about EULAs. Theres a whole section about enforceability at the end which includes some stuff that might be relevant to this issue. The entries on contracts of adhesion and unconscionability also include some interesting points I think might also be relevant.
Ultimately, though, regardless of what is what I think that this type of discussion, while interesting, are largely pointless because none of us are lawyers and even if we claim to be have no way to reliably back those claims up. And gaming forums are not exactly the most reliable place to go for legal advice. All we can do is give our (often uninformed) opinion on the matter and b*tch about what we like or don't like about the law or EULA's, etc.
In my view the best any of us could do if we ever seriously consider starting a book on any of our characters (or ANY character even if we've never used them in any game or any other medium before at all) is to go to an actual lawyer that specializes in copyright/trademark law and ask for some real legal advice. And if you're thinking of using a character you've actually used in a game, probably not even bring it up or tell anyone until you've already talked to that lawyer (and possibly gone through any legal/publishing processes you may need to do as well).
When I was younger, I did designs for an indy game. I got a lawyer to look over the contract. They did it as a favor to a friend's father and he also paid the much-reduced-but-still-beyond-my-means lawyers fee.
The odds of a game company having better access to lawyers than you can't afford are pretty good. The best way to prevent getting screwed is to not bend over in the first place.
I have a question.... with all this talk about anything you write you're not allowed to keep etc..
What if i write a real life biography of myself then? Do they own me? in which case, i demand an allowance and LTS.
Also, sometimes i get depressive could i get in trouble for killing off their character, their property then if i did something stupid?
I don't know, that's a very good question about the autobiography and I'm woefully ignorant when it comes to questions like that. If you're really concerned about it, ask a lawyer who specializes in US intellectual property laws. But I doubt they'd own you, just the text you put in. Also keep in mind that those provisions in the EULA are to prevent you from suing them, not giving them a way to sue you.
As for my name, it's a Japanese phrase. zenzen arimasen which means "absolutely nothing." Basically it's composed of four elements. zenzen which means "everything" "totally" or "at all" and arimasen which is two parts. ari is a verb which means "there is" or "there are". Basically ari is a statement of being. Thing is, verbs have to have a form, which is normally "masu" so "arimasu" (the u on the su is silent). Problem is "zenzen arimasu" means "it all exists". Which isn't the meaning I was shooting for. So you negate it by adding en to the end of the form, only you also cut the u off. So it comes out "zenzen arimasen". It means "absolutely nothing" or "it does not exist".
Basically it's my way of protesting losing my original forum name, which is Metallurgist.
Also, about the only two things Nepht and I have in common is that English isn't either of our first languages, and we both speak Japanese.
All the characters in my banner are copyrighted to me even before I put them in the game. I recreated them in Champions fully aware that they can use them to further promote the game if they make an appearance in video or promotional images. I'm fine with that.
If it ever gets to a point that I don't want them to continue making more promotion, then I simply have to rename, redesign or even delete so they cannot make more promotions. However images and video that was taken before this removal is entirely my responsibility.
I made it my business to understand copyright laws because I am an artist and artists need to protect their property. As well as know the consequences of recreating them in another medium.
All the characters in my banner are copyrighted to me even before I put them in the game. I recreated them in Champions fully aware that they can use them to further promote the game if they make an appearance in video or promotional images. I'm fine with that.
If it ever gets to a point that I don't want them to continue making more promotion, then I simply have to rename, redesign or even delete so they cannot make more promotions. However images and video that was taken before this removal is entirely my responsibility.
I made it my business to understand copyright laws because I am an artist and artists need to protect their property. As well as know the consequences of recreating them in another medium.
Under US law, you couldn't have copyrighted them, only trademarked them. Trademarks can be kind of expensive. If you didn't trademark them in the USA, then they're probably not even close to protected in the USA. As for the EULA, you basically agreed to hand over the rights to the characters when you put them into CO. Though this is to protect them from lawsuits from someone who tries to sue after a game accepts a character the person owns.
If you have a problem with it, don't take it up with me. I'm just a player, same as you. Talk to PWE's legal team.
Under US law, you couldn't have copyrighted them, only trademarked them. Trademarks can be kind of expensive. If you didn't trademark them in the USA, then they're probably not even close to protected in the USA. As for the EULA, you basically agreed to hand over the rights to the characters when you put them into CO. Though this is to protect them from lawsuits from someone who tries to sue after a game accepts a character the person owns.
If you have a problem with it, don't take it up with me. I'm just a player, same as you. Talk to PWE's legal team.
Fraid to say it, but 100 percent true.
If you make it ingame, with their creator.... it by definition cannot be an original peice of art.
As far as bio's go, if you dont want Cryptic/ Perfect worlds to be able to "use it' as a story, you need to put it on your own site, and in your bio, drop a link to it.
This way they need to come to your site and agree to not use it in order to veiw it, very close to the legal terms of use for the this site, you agree by posting or signing in, that you agree to their terms of use
section 19 of the current terms of services. "Ownership and restrictions of use "
Cryptic owns everything.
And you need their prior written permission to use anything. Section 3
even on a fan website, it must include the trademark message and a link to the site
section 19 of the current terms of services. "Ownership and restrictions of use "
Cryptic owns everything.
And you need their prior written permission to use anything. Section 3
even on a fan website, it must include the trademark message and a link to the site
True, However, A fanwebsite is a fanwebsite for CO, I said YOUR OWN WEBSITE, showcasing your work, and content of your own choosing, and not a fanwebsite as defined by the EULA
Second, Cryptic/New world only owns things you enter into THEIR GAME OR WEBSITE. ( of course they own game images or content etc. )
Not going to get into a contest about it, these are just simple facts, that can be verified if you so desire. I have this knowledge as I use it in my work, but I have no desire to try and argue or proove my knowledge to an online gaming forum...:rolleyes:
Ownership of everything in the game belongs to Cryptic, just not the specific combinations that may be a result. Otherwise they would own any character that is put into it from any franchise without the owners specific permission. The terms of agreement thankfully don't work that way.
I fully accept that Cryptic may use the stories and characters to promote the game within the game's limitations and only to that extent. The designs and concepts themselves outside of the game belong to me. My inserting them into the game willingly give them permission to do whatever they wish within that medium. That is how the terms and conditions apply in this case.
While the thread provides some good insight into copyright laws and just how icky they can get, I somehow feel that the OP has unwittingly invited PWE / Cryptic to set their sights on his character to be used in his own medium, even if his intentions to get informed can't be faulted.
It seems that the only sure way of protecting the character is to get him trademarked, and I'm pretty sure that costs a huge sum of money.
Ownership of everything in the game belongs to Cryptic, just not the specific combinations that may be a result. Otherwise they would own any character that is put into it from any franchise without the owners specific permission. The terms of agreement thankfully don't work that way.
I fully accept that Cryptic may use the stories and characters to promote the game within the game's limitations and only to that extent. The designs and concepts themselves outside of the game belong to me. My inserting them into the game willingly give them permission to do whatever they wish within that medium. That is how the terms and conditions apply in this case.
The fee for filing for a trademark for a single character, last time I looked it up, is $325. That's just the filing fee. There's also the patent lawyer you have to hire to search through all the related trademarks and patents to make sure your application meets sufficient originality. They charge several hundred dollars an hour and it can take upwards of a week's worth of work. Even then, the trademark might not be approved for 5, maybe 6 years...
So you trademarked all 5 of the characters in your signature did you? Did you know that according to the EULA that you agreed to before you ever put the characters into Champions Online that the trademarks on all those characters now belongs to PWE?
Also, did you know that by even putting the characters into Champions, and allowing Cryptic/PWE to duplicate the character (technically when they send the appearance data to other peoples computers so they can see your characters, a copy is being made) that the trademark is thereby diluted?
Did you know that diluted trademarks are worthless?
Did you know that the only way to prevent trademarks from becoming diluted is to sue anybody who duplicates the character?
Did you know that all of this means that by continuing to claim that you own the trademarks to characters (and I actually have doubts that you really trademarked them) that you legally signed over to PWE, that technically speaking, PWE can interpret it as you using the forums to give them notice of intent to sue?
Did the trademark or patent lawyer you hired to help with you the trademark process tell you ANY of this?
While the thread provides some good insight into copyright laws and just how icky they can get, I somehow feel that the OP has unwittingly invited PWE / Cryptic to set their sights on his character to be used in his own medium, even if his intentions to get informed can't be faulted.
It seems that the only sure way of protecting the character is to get him trademarked, and I'm pretty sure that costs a huge sum of money.
Nope, trademarking the character isn't a viable path. Not putting the character into Champions or any other MMO is the only viable path. Infact, trademarking the character only makes it that much more stupid when you go and create the character in-game. Because not only did you spend a hefty sum to trademark something, you handed over the rights to the trademark under the EULA.
Marvel felt really silly when it came out that the characters they were suing over on City of Heroes were put into City of Heroes by their own legal team.
Nope, trademarking the character isn't a viable path. Not putting the character into Champions or any other MMO is the only viable path. Infact, trademarking the character only makes it that much more stupid when you go and create the character in-game. Because not only did you spend a hefty sum to trademark something, you handed over the rights to the trademark under the EULA.
Marvel felt really silly when it came out that the characters they were suing over on City of Heroes were put into City of Heroes by their own legal team.
Except that nowhere in the propriety clause of the EULA did I notice anything stating that trademarks for represented characters being introduced into the game in character creator would be handed over to Cryptic / PWE, only that they have the right to claim the represented character as property, not the trademark itself. See, the thing about EULAs? They're bound to have loopholes, and those loopholes can be exploited in legal battles. All it takes is a sharp-minded person, or lawyer, to point it out.
Except that nowhere in the propriety clause of the EULA did I notice anything stating that trademarks for represented characters being introduced into the game in character creator would be handed over to Cryptic / PWE, only that they have the right to claim the represented character as property, not the trademark itself. See, the thing about EULAs? They're bound to have loopholes, and those loopholes can be exploited in legal battles. All it takes is a sharp-minded person, or lawyer, to point it out.
Let's say all this copyright/trademark crap is right then, they have to protect their propertty then, or lose it.
Also, i thought the EULA agrrement specifially talked about copyrights, not trademarks, so... some clarity? If they own all copyrights, how do they then take your trademark if they talked about getting copyrights?
Having said that. I'm going to write my life story in my bio in game, and then demand maintenance fees irl, or threaten them with my life and terminate their property o.O
Yeah... i sure showed them. I'm now living the dream, in my awesome Overlord mansion, and getting a retcon to be a big time billionaire. I found my loophole, now you just gotta find your own.
You peeps still fighting how dare this fight continue with out me :O
My advice is nice and simple no wall of text required.
Don't use anything designed by Cryptic in your comics.
Don't make your toon in CO.
Its that simple. I have a string of original characters I would love to make in the game but I know better of it.
As the OP can see none of us can agree how binding the EULA is and EULA's are flimsy at best of times. None of us are lawyers we just don't know.
EDIT * Your not a lawyer shut up >_>
DOUBLE EDIT * ^ not aimed at you OP
TRIPLE EDIT * ^ but incase you like being told to shut up and don't want to be left out ..shut up
4th EDITY EDIT THING * If your called Jenny none of the above apply cause your awesome
Nepht and Dr Deflecto on primus
They all thought I was out of the game....But I'm holding all the lockboxes now..
I'll......FOAM FINGER YOUR BACK!
Except that nowhere in the propriety clause of the EULA did I notice anything stating that trademarks for represented characters being introduced into the game in character creator would be handed over to Cryptic / PWE, only that they have the right to claim the represented character as property, not the trademark itself. See, the thing about EULAs? They're bound to have loopholes, and those loopholes can be exploited in legal battles. All it takes is a sharp-minded person, or lawyer, to point it out.
And therein lies the pointlessness of people that don't even have a law degree trying to argue legal documents on a gaming forum... the most reliable of sources in the online world :rolleyes:
Let's say all this copyright/trademark crap is right then, they have to protect their propertty then, or lose it.
Also, i thought the EULA agrrement specifially talked about copyrights, not trademarks, so... some clarity? If they own all copyrights, how do they then take your trademark if they talked about getting copyrights?
Having said that. I'm going to write my life story in my bio in game, and then demand maintenance fees irl, or threaten them with my life and terminate their property o.O
Yeah... i sure showed them. I'm now living the dream, in my awesome Overlord mansion, and getting a retcon to be a big time billionaire. I found my loophole, now you just gotta find your own.
lol, this made me laugh at work. Especially the part about threatening to "terminate their property"
You peeps still fighting how dare this fight continue with out me :O
My advice is nice and simple no wall of text required.
Don't use anything designed by Cryptic in your comics.
Don't make your toon in CO.
Its that simple. I have a string of original characters I would love to make in the game but I know better of it.
As the OP can see none of us can agree how binding the EULA is and EULA's are flimsy at best of times. None of us are lawyers we just don't know.
EDIT * Your not a lawyer shut up >_>
DOUBLE EDIT * ^ not aimed at you OP
TRIPLE EDIT * ^ but incase you like being told to shut up and don't want to be left out ..shut up
OP asked the community for advice and presented the topic for discussion. We gave it, regardless of whether or not we're lawyers with law degrees; just our opinions on how the clause is to be interpreted.
As I obviously don't have a law degree, and being nicely told to shut up, guess that's it from me.
EDIT * Your not a lawyer shut up >_>
DOUBLE EDIT * ^ not aimed at you OP
TRIPLE EDIT * ^ but incase you like being told to shut up and don't want to be left out ..shut up
4th EDITY EDIT THING * If your called Jenny none of the above apply cause your awesome
Ive adjusted the Nepht user agreement for you.
Nepht and Dr Deflecto on primus
They all thought I was out of the game....But I'm holding all the lockboxes now..
I'll......FOAM FINGER YOUR BACK!
OP asked the community for advice and presented the topic for discussion. We gave it, regardless of whether or not we're lawyers with law degrees; just our opinions on how the clause is to be interpreted.
As I obviously don't have a law degree, and being nicely told to shut up, guess that's it from me.
For the record if this is in regard to my post (I just realized it could be interpreted that way) I wasn't telling you to shut up or necessarily talking about you. Just using your point about potential loopholes in the EULA as a base to point out that its pointless for us to agrue about this since we don't have the necessary education to even know what applies or doesn't legally speaking.
Discuss on... (but all our points, my own included, are unreliable in the greate legal scheme of things :biggrin:)
EULA that are not present at the time of purchase are of questionable legal virtue in CA. It would be interesting to see a claim to own something based on an agreement that may not be at all legally valid.
Of course if Cryptic actually goes to the effort to Trademark each and every character every created, and the creators do not...
EULA are all over the place at the best of times , so if in doubt just dont.
I will point this out, because CO is not a purchased game and you have to read the EULA while downloading or after installing the game now, this doesn't exactly hold true anymore. Now while CA people tries to dispute this, again I point to Marvel versus Cryptic in this over this exact same issue, when players (and Marvel themselves) were creating Marvel's trademarked characters in City of Heroes. The settlement for the case was handled out of court, I believe, but the end result was still the same as a much stricter enforcement code, at least for City of Heroes and Champions, has been in place ever since.
Trying to claim that a law is in dispute in one state when there are 49 others and other countries no less, is a slippery slope argument. Since CA can't even decide if the law is right or not, it's not exactly something you can back up in writing and in fact has swung both ways in either case.
I will point this out, because CO is not a purchased game and you have to read the EULA while downloading or after installing the game now, this doesn't exactly hold true anymore. Now while CA people tries to dispute this, again I point to Marvel versus Cryptic in this over this exact same issue, when players (and Marvel themselves) were creating Marvel's trademarked characters in City of Heroes. The settlement for the case was handled out of court, I believe, but the end result was still the same as a much stricter enforcement code, at least for City of Heroes and Champions, has been in place ever since.
Trying to claim that a law is in dispute in one state when there are 49 others and other countries no less, is a slippery slope argument. Since CA can't even decide if the law is right or not, it's not exactly something you can back up in writing and in fact has swung both ways in either case.
Except that the case of Marvel vs Cryptic is a very different case, even if it pertains to a somewhat related issue, of people creating already trademarked and established characters in game, and the question brought up by the OP is more in line of whether Cryptic actually owns our toons once we create them or not. And at least according to wiki* its not just California but in the US in general that the enforceability of EULA's might be questionable.
*which might not be the greatest authority on Earth but still can be pretty informative.
I will point this out, because CO is not a purchased game and you have to read the EULA while downloading or after installing the game now, this doesn't exactly hold true anymore. Now while CA people tries to dispute this, again I point to Marvel versus Cryptic in this over this exact same issue, when players (and Marvel themselves) were creating Marvel's trademarked characters in City of Heroes. The settlement for the case was handled out of court, I believe, but the end result was still the same as a much stricter enforcement code, at least for City of Heroes and Champions, has been in place ever since.
Trying to claim that a law is in dispute in one state when there are 49 others and other countries no less, is a slippery slope argument. Since CA can't even decide if the law is right or not, it's not exactly something you can back up in writing and in fact has swung both ways in either case.
Cryptic and PWE are not headquartered in any of those other 49 states. They are both HQ'd in California (in the same area where I live actually)
The point about CO not being a purchasable game is an interesting one. Stores in my area still have it on the shelves (or did a few weeks ago when I last browsed the game aisles). Even so, you are correct that there are some who did not make a purchase before agreeing to an EULA, that is not true of all players. Still an intriguing point. It might seem to indicate that some players (who didnt buy the box) are bound by the EULA whiles others (who bought the box) are not.
The lawsuit between Marvel and Cryptic was not about the validity of an EULA so it does not really apply to the points I made. I never contested the idea of IP ownership, Trademark, etc. I merely pointed out that the EULA itself is not necessarily legally binding.
You are mistaken about CA not being able to decide if the law is, "right." The laws in question, relating to the alteration of contracts, have been upheld for years and hundreds, if not thousands, of cases.
Actually, unless you purchased an original CO install disc and it did not include the EULA, there's no basis for claiming a change to the contract; I read the EULA and ToS while downloading, and as I recall had to electronically "sign" them in order to create my first character. All pretty boilerplate, including the part that says you agree that Cryptic owns anything you create using their software and systems. It's the other reason I never made Frostfire or Arachnid or most of my other Champs characters in CO (the main reason being that even this character creator isn't quite that flexible - no way to simulate Frostfire's combined heat/cold attack that weakens metal, for instance, and of course CO doesn't have the Clinging power or any of its implied capabilities).
"Science teaches us to expect -- demand -- more than just eerie mysteries. What use is a puzzle that can't be solved? Patience is fine, but I'm not going to stop asking the universe to make sense!"
You peeps still fighting how dare this fight continue with out me :O
My advice is nice and simple no wall of text required.
Don't use anything designed by Cryptic in your comics.
Don't make your toon in CO.
Its that simple. I have a string of original characters I would love to make in the game but I know better of it.
As the OP can see none of us can agree how binding the EULA is and EULA's are flimsy at best of times. None of us are lawyers we just don't know.
EDIT * Your not a lawyer shut up >_>
DOUBLE EDIT * ^ not aimed at you OP
TRIPLE EDIT * ^ but incase you like being told to shut up and don't want to be left out ..shut up
4th EDITY EDIT THING * If your called Jenny none of the above apply cause your awesome
See Nepht? WE can agree on things. Your summary of the situation is spot on.
Except that the case of Marvel vs Cryptic is a very different case, even if it pertains to a somewhat related issue, of people creating already trademarked and established characters in game, and the question brought up by the OP is more in line of whether Cryptic actually owns our toons once we create them or not. And at least according to wiki* its not just California but in the US in general that the enforceability of EULA's might be questionable.
*which might not be the greatest authority on Earth but still can be pretty informative.
Problem with that is that a EULA doesn't have to be attached to a physical product. Either you agree to the EULA or you don't. If you don't agree to the EULA, they don't let you play the game. The fact that you're playing it is proof that you agreed to it. What's more, the EULA is available on the webpage for you to read prior to ever even downloading the game. As for the enforceability of EULAs. There are far more cases in which a EULA has been upheld in a US court than cases where it was found to be not enforceable.
The property clauses are most likely enforceable, but then I'm not a lawyer and I know of no times where such clauses have had to be enforced. As I've said repeatedly, that particular section is mostly there to prevent us from suing them for having our characters and IP on their game. Also to prevent things like if they or anybody else makes a gameplay video and your character inadvertently shows up. in the video, you can't go raise a stink over it like and be childish about it, since PWE owns any videos made of the game.
Actually, unless you purchased an original CO install disc and it did not include the EULA, there's no basis for claiming a change to the contract; I read the EULA and ToS while downloading, and as I recall had to electronically "sign" them in order to create my first character. All pretty boilerplate, including the part that says you agree that Cryptic owns anything you create using their software and systems. It's the other reason I never made Frostfire or Arachnid or most of my other Champs characters in CO (the main reason being that even this character creator isn't quite that flexible - no way to simulate Frostfire's combined heat/cold attack that weakens metal, for instance, and of course CO doesn't have the Clinging power or any of its implied capabilities).
Except that you have to agree to the EULA before you even fully log in to the game. What's more, every time the EULA changes, they make you agree to the new one. As for the boiler plate, not sure what you're saying there, but yes, it is boiler plate. Though I'm not sure if you're trying to use that to diminish the amount of bite the EULA would have in a court, I doubt it would. I know of no cases where a contract's enforceability was in any way affected by the presence or lack of boiler plate clauses.
BTW I love the Ben Franklin quote in your signature.
Except that you have to agree to the EULA before you even fully log in to the game. What's more, every time the EULA changes, they make you agree to the new one. As for the boiler plate, not sure what you're saying there, but yes, it is boiler plate. Though I'm not sure if you're trying to use that to diminish the amount of bite the EULA would have in a court, I doubt it would. I know of no cases where a contract's enforceability was in any way affected by the presence or lack of boiler plate clauses.
That's actually the point I was trying to make - that the statement that the EULA might be unenforceable under California law if it changed from the moment of purchase was inapplicable, as for at least the last couple of years you have to anyway claim to have read and agreed to it before you can play the game. And as you point out, if at any time the EULA changes, you have to agree to the new one before you can play any more.
By "boilerplate" I just meant that the contract involved is the standard for all MMOs - even in WoW, they own what you create in-game (although your ability to be actually creative is sharply limited over there). It's time-tested, and lawyer-approved. And as noted above, if they don't vigorously defend their trademark, it can be considered to have lapsed (which is why you can buy aspirin from manufacturers besides Bayer, but anyone besides Kleenex brand can only sell you "facial tissues").
"Science teaches us to expect -- demand -- more than just eerie mysteries. What use is a puzzle that can't be solved? Patience is fine, but I'm not going to stop asking the universe to make sense!"
That's actually the point I was trying to make - that the statement that the EULA might be unenforceable under California law if it changed from the moment of purchase was inapplicable, as for at least the last couple of years you have to anyway claim to have read and agreed to it before you can play the game. And as you point out, if at any time the EULA changes, you have to agree to the new one before you can play any more..
Exactly why it might be unenforceable under CA law.
An EULA is a form of contract. So is the purchase (at least in CA). A purchase contract implies (more than implies actually) the ability to use or benefit from the product or service purchased. A subsequent contract, in CA, cannot alter, in whole or in part, the prior contract.
It doesn't matter how many times a company requires you to re-acknowledge the EULA. Signing something that may very well be legally invalid one hundred times grants it no more validity than signing it once.
Under the strictest interpretation of CA laws on the matter, the instant Cryptic required digital signature on an EULA, after the game was purchased by the consumer, the purchase contract was void, whether the parties involved wished such to be the case or not, and both parties would be expected to be returned to their pre-contract state (consumer gets their money back, and Cryptic gets their product back).
Edit: But yeah, it would take some pretty serious shenanigans for anyone to successfully deny that Cryptic owns the characters created in their game, using their software, distributed through their servers, etc.
and just another bit of it.
The first part (or maybe the second) is the right by cryptic to change any part of the agreement with or without notice or notification.
keep discussing it, the legal points are really interesting, I only did a basic law unit. This is the first opportiunity I've had for a long time to here a good discussion on points from qualified people.
Exactly why it might be unenforceable under CA law.
An EULA is a form of contract. So is the purchase (at least in CA). A purchase contract implies (more than implies actually) the ability to use or benefit from the product or service purchased. A subsequent contract, in CA, cannot alter, in whole or in part, the prior contract.
It doesn't matter how many times a company requires you to re-acknowledge the EULA. Signing something that may very well be legally invalid one hundred times grants it no more validity than signing it once.
Under the strictest interpretation of CA laws on the matter, the instant Cryptic required digital signature on an EULA, after the game was purchased by the consumer, the purchase contract was void, whether the parties involved wished such to be the case or not, and both parties would be expected to be returned to their pre-contract state (consumer gets their money back, and Cryptic gets their product back).
Edit: But yeah, it would take some pretty serious shenanigans for anyone to successfully deny that Cryptic owns the characters created in their game, using their software, distributed through their servers, etc.
They're not altering the prior contract. They're terminating the old contract and presenting you with a new contract. If you do not accept the new contract, they don't have to let you in to the game. Keep in mind, the game is run on servers they own. As such, you're effectively have to access private property to access the game. What's more is that the best you could argue for is getting a prorated refund for your remaining subscription time if you don't accept the new contract. If you're a free to play user or a lifetimer good luck on getting them to even consider a prorated refund. Since you're paying nothing monthly at that point, any fraction of $0 is still $0...
and just another bit of it.
The first part (or maybe the second) is the right by cryptic to change any part of the agreement with or without notice or notification.
keep discussing it, the legal points are really interesting, I only did a basic law unit. This is the first opportiunity I've had for a long time to here a good discussion on points from qualified people.
Thank you all
None of us are really qualified. Knowledgeable and autodidacts perhaps, but unqualified. I'm willing to bet that no one involved in the discussion so far has ever passed a bar exam, let alone graduated from law school with a law degree. For me, I have to know certain things because I run a small, freelance video game development company that has no legal team. So I have to keep up on what's what... Legal language in contracts isn't really that hard to follow. The point at which I become unqualified is that I don't know the law inside and out. I just know a few general rules that give you a fairly good chance at not getting sued if you follow them. I also have a good understanding of how to read contracts and why they are written the way they are.
Another thing that I'm aware of is that outside of a few rare exceptions, like Monsanto for example, most companies put this whole "we own you and your first born child" stuff in the contracts as a means of preventing themselves from being sued by their clients and customers. They're more worried about you suing them than they are about being able to sue you. Monsanto is a different story however. They're the corporate equivalent of a school bully stealing the lunch money from the other kids.
Namely stay away from other people's IP like the plague. The closest you should come is affectionate nods. Doing a complete reenactment of Star Wars but changing the hair colors of the characters most certainly is not sufficient to call it your own property.
They're not altering the prior contract. They're terminating the old contract and presenting you with a new contract. If you do not accept the new contract, they don't have to let you in to the game. Keep in mind, the game is run on servers they own. As such, you're effectively have to access private property to access the game. What's more is that the best you could argue for is getting a prorated refund for your remaining subscription time if you don't accept the new contract. If you're a free to play user or a lifetimer good luck on getting them to even consider a prorated refund. Since you're paying nothing monthly at that point, any fraction of $0 is still $0...
.
Termination of a contract that had no listed conditions of termination as part of the contractual agreement is an alteration of the contract in the most absolute sense.
Invalidation of a contract in CA requires that both parties be returned to their pre-contract state. Not a prorated portion of that pre-contract state.
Termination of a contract that had no listed conditions of termination as part of the contractual agreement is an alteration of the contract in the most absolute sense.
Invalidation of a contract in CA requires that both parties be returned to their pre-contract state. Not a prorated portion of that pre-contract state.
An End User License Agreement is not a sale contract. It's a effectively a terms of service. Does the sales contract guarantee you access to the game for longer than the free 30 days of subscription time? I think it's long past the 30 days of free subscription, don't you? Considering you can't even buy the game in stores anymore?
An example of a boiler plate terms of service that everybody in the English speaking world should be familiar with is "no shirt, no shoes, no service". It doesn't matter if you've bought a burger from there while not wearing a shirt and shoes before, they don't have to do it again, and they can kick you out of the place while you're eating the burger for trying it the first time. Nor would they have to refund every burger you've ever had with them upon throwing you out. They wouldn't even have to refund you for the first one if they threw you out while you were eating it.
Even if your argument had teeth, it need would have needed dentures the moment the game went free to play. It got old and all its teeth fell out.
So you trademarked all 5 of the characters in your signature did you? Did you know that according to the EULA that you agreed to before you ever put the characters into Champions Online that the trademarks on all those characters now belongs to PWE?
According to the EULA they may use the characters for purposes of the game. I signed them permission to use them. They don't own the characters, but they have the right to use them for Champions.
Did you know that all of this means that by continuing to claim that you own the trademarks to characters (and I actually have doubts that you really trademarked them) that you legally signed over to PWE, that technically speaking, PWE can interpret it as you using the forums to give them notice of intent to sue?
Did the trademark or patent lawyer you hired to help with you the trademark process tell you ANY of this?
Its very funny how you think that PWE would interpret "I'm not going to sue PWE because all the the terms and conditions are in order" as "I'm going to sue PWE". You don't know how the EULA works. Me personally putting my characters in the game gives them permission to use that character within that medium and does not void my trademark.
All the user agreement does is protect Cryptic from being sued by me because I was the one who put the characters in there in the first place. They don't own the characters or the creative rights to them, but have permission to use their likeness for the game itself.
Nope, trademarking the character isn't a viable path. Not putting the character into Champions or any other MMO is the only viable path. In fact, trademarking the character only makes it that much more stupid when you go and create the character in-game. Because not only did you spend a hefty sum to trademark something, you handed over the rights to the trademark under the EULA.
Marvel felt really silly when it came out that the characters they were suing over on City of Heroes were put into City of Heroes by their own legal team.
Giving them permission to use in a certain way is very different than giving them the rights exclusively.
What you said about not knowing very much about how it all works, it clearly shows.
I spent the money and did the filing for trademarking the characters myself so I know good and well how all this works.
If the EULA works the way you "think" it does, than the moment tv characters are put into a crossover fighting game for example, than those characters can't continue being in a tv show. Those characters are allowed to be used in the game and is allowed to be used to promote the game. Nothing more. The show can go on.
and just another bit of it.
The first part (or maybe the second) is the right by cryptic to change any part of the agreement with or without notice or notification.
keep discussing it, the legal points are really interesting, I only did a basic law unit. This is the first opportiunity I've had for a long time to here a good discussion on points from qualified people.
Thank you all
Well, you bout got it right most game makers, webmasters ( what an old term) , etc. write "Disclaimers" or "Terms of use"
All of them will negotiate the waters of legal terms of whom may do what with whatever may be the subject matter.
One of the key parts that must be included in them all, to release liability of owner/creator, is that the wording, content, and agreements made may be changed/altered at any time they seem fit in order to protect their individual property /rights:rolleyes:
An End User License Agreement is not a sale contract. It's a effectively a terms of service. Does the sales contract guarantee you access to the game for longer than the free 30 days of subscription time?
An EULA is certainly not a sale contract, as you say, because there is no financial transaction involved in accepting it. However, if it is used to impose conditions on the use of a purchase or service contract after the fact, it is covered by CA's laws regarding altering a contract.
Excellent point about the free 30 days sub time. Oddly enough I checked my packaging and there is no mention of such (obviously I knew about the sub requirement as I bought an LTS). Odd because every other sub based MMO I have played has included a disclaimer on either the box or a sticker on the shrink wrap. Weird.
Considering you can't even buy the game in stores anymore?
Hmm, you can in this area. Best Buy, Fry's, chain game shops, etc, all have it (or did a couple of weeks ago when I was last browsing game aisles). You could find it in stores in Southern CA as of last July (when I was last in that area) When I first saw the boxes I considered picking up a few (assuming that they would be very heavily discounted) for monthly subscriber or silver friends. Unfortunately they were all still at or near full price.
An example of a boiler plate terms of service that everybody in the English speaking world should be familiar with is "no shirt, no shoes, no service". It doesn't matter if you've bought a burger from there while not wearing a shirt and shoes before, they don't have to do it again, and they can kick you out of the place while you're eating the burger for trying it the first time. Nor would they have to refund every burger you've ever had with them upon throwing you out. They wouldn't even have to refund you for the first one if they threw you out while you were eating it.
If they allow you to enter the premises and pay for your burger, not providing the terms of service (not posted anywhere for example) until after they have taken your money, they would be required to either refund the money, or to provide you with the contracted product/service (ideally with extra pickles but no mayonnaise).
As to throwing you out while you were eating the first one (per the last sentence of your analogy), of course they wouldn't have to refund you for it. You would have possession of it. It is yours. They could choose to not allow you to eat it on their property, but they cannot choose to take your property (a piece of merchandise for which you have paid) away from you.
As to the refunding every burger you have ever had with them previously...Of course. Those were separate transactions...Hmm, I guess I have been looking at this entire situation from the point of view of a LTS holder not a monthly subscriber. I can definitely see how a monthly subscriber who agreed to the EULA would be bound starting with his next monthly sub fee. At that point he would have chosen to engage in a purchase contract after having been provided with the EULA.
Question for you, because I honestly do not recall...Did we (original LTS purchasers) have to accept the EULA BEFORE we paid for our LTS ?
If we are going to use analogy here, if you purchase an automobile the dealer cannot take your money, deposit it in his bank, and then tell you that in order to get him to allow you to drive the vehicle off the lot you have to sign an EULA that allows him to take it back at any time for any reason. Such a clause would have to be present at the time of the purchase to be valid.
Even if your argument had teeth, it need would have needed dentures the moment the game went free to play. It got old and all its teeth fell out.
Nah, my basic argument that an EULA that is not present at the time of purchase might not be valid still holds up. A decision by a merchant to lower the price of their product has no bearing on whether or not a subsequent contract/document can alter a pre-existing contract in CA.
On the other hand, I believe that, interpreting individual monthly sub fee payments as new purchase contracts, combined with subsequent re-agreement to the EULA, neuter the point anyway. You and Jon are very likely correct in that regard, and I do apologize for not catching it sooner.
Ultimately it all hinges on when a purchaser is made aware of limitations placed on his purchase by the merchant. If, as I now suspect, you will be able to answer that we did in fact have to agree to the EULA before we could purchase our LTS, then the CA laws I have mentioned would be completely inapplicable to even LTSers after the first 30 days (because those 30 days would be protected since the EULA was not present at the time the biox was purchased).
Oddest thing. Did others notice the vanguard title and lime text color change slightly with the new forums ? I am red/green color blind and saw them as grey before. It seems as if they changed just enough to cross over into a shade of green that I can perceive.
Anyway, responses in lime above (and I do want to be sure to make clear that this is purely an interesting discussion to me and no hostility or offense are intended.)
Oddest thing. Did others notice the vanguard title and lime text color change slightly with the new forums ? I am red/green color blind and saw them as grey before. It seems as if they changed just enough to cross over into a shade of green that I can perceive.
Anyway, responses in lime above (and I do want to be sure to make clear that this is purely an interesting discussion to me and no hostility or offense are intended.)
I don't think you're thinking about my burger analogy in the light I was intending. It's more to the point they make you agree to the no shirt, no shoes, no service thing before they actually let you eat it. You can buy it, you can have it in hand, you can't eat it till you agree. Chances are, the store would refund your money just fine if you didn't agree and hadn't eaten the burger yet.
As for the car analogy, the thing with that is that with a car, it's not expected that you're going to have a recurring monthly fee. Also, a car is not a service based relationship, like MMOs are. I admit that my burger analogy falls apart when that's brought up, though I was using it for the point of the wording of "no shirt, no shoes, no service". Point is, Champions Online is a service which is not true of things like cars, or most other things with a sales contract.
In every case where I've bought an MMO and ended up not liking the MMO, even after agreeing to the EULA, they've refunded my money... in full... Even when I purchased expansion packs at the end.
Some game, I forget what, a really early 3D mmo, had the word "Shadow" in the name. I remember it was either a Cyanworlds or an Ubisoft game. Anyway, it had an expansion that let you play as a centaur. I love centaurs and always wanted to play one in an MMO. Anyway, point is, I bought the expansion, didn't know what the game was like, they gave me my money back under the condition that I can't ever come back. I agreed and presto. That's just one example. And mind you, I was also being polite and courteous with them. That probably got me a lot further in the refund process than if I were to start spouting California law at them, hehe.
Anyway, point is, unless you call up support and ask for a refund after reading and agreeing to the EULA, there's no real way to claim that they would be violating the law, now is there? Thing about the LTS, I recall when I bought it, it said "all sales are final" before it even let me buy it. Though I do recall people reporting that they asked for and received a refund on LTS early on in the game's lifespan. I don't know the circumstances surrounding that, however.
*looks around for the report button and doesn't find it*
D*mn you PWE!
Seriously, Nepht, stop trolling and spamming.
Erm your the troll you been trolling the forums for the last few days youve done nothing but insult anyone and everyone who doesnt agree with you. That post of mine was aimed at this thread as a whole. What you seen something in that vid that cut close to the bone that you had to reply with the classic comeback YOUR A SPAMMING TROLL. I dont see how that vid is trolling theres nothing offensive in it at all no bad words no smut nothing.
But hell if you think trying to stop people fighting via humor is trolling you seriously need to get out more.
Your the only one calling people names. The only name apart from calling your troll in this post I called you was MUFFIN..I am truly sorry if you find MUFFIN offensive.
Be it Princess, old , troll or spammer thats all you have done name call because half the forum didnt agree with you. TOP TIP thats called LIFE hun.
Heck in another thread you have even called EVERYONE that has a sig pretentious
But please do carry on cause all you will succeed in doing ,hell what we all will succeed in doing is getting told to shut up by the mods and the thread closed
Unlike you I dont tell people what to think or write so PLEASE DO REPLY and I will happily pay no attention to it what so ever.
Nepht and Dr Deflecto on primus
They all thought I was out of the game....But I'm holding all the lockboxes now..
I'll......FOAM FINGER YOUR BACK!
Comments
The regulations that Cryptic set up is entirely to protect themselves. If you willingly create a character that you own in their system, they have every right to use images and promote their game with said images/video that includes your character.
It does not mean the character is owned by them. However you may not use the images created through the game engine as if you owned them. Cryptic has rights to all images that are created from the game. You may use them as reference but not for promotional material or monetary gain.
If you used the game to create an original character then copyright and recreate the character outside of the game for your own uses, they can still use the in game likeness as long as it appears in the game to further promote Champions. They can keep using produced images and video of the character that were made up until the character no longer exists in the game. This is either from you removing the character by deleting or renaming it.
They can still use that material after that point as they please, but not create future imagery or video as the character no longer exists in their system.
The contract is binding only so long as somebody holds the contract. It's no longer legally binding with Atari, obviously. If PWE were to completely fold up, then definitely.
However, seeing as how the EULA's provisions in this regard are there to protect them from being sued by lawsuit trolls (what I mean by that is covered below in my reply to ashensnow), it's PROBABLY safe to do what you want with your characters after the game shuts down. Basically you can't sue them because their butt is already covered by the contract, and they aren't making money off of your character nor can they.
Mind you, I'm not a lawyer, and I'm not saying it would be fine. I'm just speculating and personally doubt that PWE would even know the character is owned by them under the EULA once the servers are shut down. All the data would have been deleted, meaning they'd be deleting any evidence that they could use in court.
Actually, any time they change the EULA, you have to re-agree to it. If you don't, they don't let you log into the game. Besides that, the terms where you sign over the rights to the works you create in the game have always been there.
Lastly, they don't have to trademark it. The terms are there to protect them from being sued by trolls. Imagine the following scenario...
Lawsuit Troll trademarks a character. They then recreate that character on Champions Online. Suddenly, thousands of other people see that character on Champions Online. Lawsuit Troll then files a lawsuit against Cryptic for unlicensed distribution of a trademarked character.
Sound farfetched? Well, it's already happened. Marvel's lawyers did *exactly* that back when Cryptic was still in charge of City of Heroes.
What you did there, that can get you into a lot of legal trouble. It's not safe to give people legal advice without telling them that you're not a lawyer while doing it. Nor is it safe for a lawyer to give legal advice without telling them that the advice doesn't constitute an attorney/client relationship.
Also I'm going to have to say that changing the hair color or minor details in the bio might not be sufficient. What you're talking about there is called "fair use" and there is no clearly defined line in law as to what constitutes a valid fair use claim in this regard. Even then, the fair use claim only really has teeth if a judge accepts it. Making the claim before the trial does not make you immune to law suit. So really, relying on tenuous fair use claims can get you into a lot of trouble. Even if you win, you're still going to have legal fees to pay.
Therefore, I recommend erring on the side of caution. If you created an original character before, you can do it again and should do so. That way you don't have to worry about whether or not the judge accepts your fair use claim.
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I see no real flaws in this, anything I have to say comes down to a matter of semantics, so I have no valid criticism to offer. Anyway, it's nice to see other people who understand how IP works.
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Responses in lovely lime
'Caine, miss you bud. Fly high.
Mmmm, tasty, tasty lime... almost as tasty as jolokia peppers...
Thank you for taking my response in the spirit it was meant, and thank you for your levelheadedness
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:biggrin:
:cool:
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| ME | A "Guide" Book" | | I, have a "DREAM! | ( Member since Feb 2008 ) ... ?
[SIGPIC]http://i18.photobucket.com/albums/b132/AngelOfCaine/STILLS/Misc/CO-Sig_01e.png[/SIGPIC]
^ This . Ashen better at words than me.
EULA are all over the place at the best of times , so if in doubt just dont.
Nepht and Dr Deflecto on primus
They all thought I was out of the game....But I'm holding all the lockboxes now..
I'll......FOAM FINGER YOUR BACK!
What if i write a real life biography of myself then? Do they own me? in which case, i demand an allowance and LTS.
Also, sometimes i get depressive could i get in trouble for killing off their character, their property then if i did something stupid?
Also... Nepht/zenzenmasrissijdcs (Honestly.. i can spell it, but i didn't memorise it for this instance)
I think you're both mis-reading each other, to a certain extent.
Nepht.. i read all her (is it a her?)comments except one (It was a huge paragraph.. honestly i'm only human) But the part where you claim she said you made a video, she did not say that, she made a "IF" Statement.. IF you made any videos of the character in game, PWE owns it.. IF, she did not say you did, but IF you did..
zenzenmarrisaen (Am i getting better?) or metal? I think it was clear that the toon she meantioned was non-existant when she said it was a non issue so idk...
Also, a point about that Avengers Assemble tv show etc having to be renamed to avoid a clash of UK/US Copyright laws... yes... that's how it works, In the US it's stall The Avengers, they don't have the clashing copyright there, so they'll do it, they rename to Avengers assemble etc in countries where someone else has a smilar copyright to be allowed to have it there, i don't see how referencing this made any point though =\
Honestly that^ is just one of many reasons I personally think that EULA's are pure BS. They're just flimsy "legal" agreements full of legal babble making blanket statements as to what the company's rights are in any given issue that couldn't possible hold water in most cases in RL situations because even signing them in the first place could be a violation of those legal agreements if you were to take them literally every step of the way. If we were to believe what that portion of the EULA says to mean they literally own our characters, just by making a character we have already made in another game that has a similar clause in their EULA (which would include just about every MMO) we could already be in violation of at least one of those agreements if not all that may apply.
Also, check the End-user license agreement wiki entry for some interesting stuff about EULAs. Theres a whole section about enforceability at the end which includes some stuff that might be relevant to this issue. The entries on contracts of adhesion and unconscionability also include some interesting points I think might also be relevant.
Ultimately, though, regardless of what is what I think that this type of discussion, while interesting, are largely pointless because none of us are lawyers and even if we claim to be have no way to reliably back those claims up. And gaming forums are not exactly the most reliable place to go for legal advice. All we can do is give our (often uninformed) opinion on the matter and b*tch about what we like or don't like about the law or EULA's, etc.
In my view the best any of us could do if we ever seriously consider starting a book on any of our characters (or ANY character even if we've never used them in any game or any other medium before at all) is to go to an actual lawyer that specializes in copyright/trademark law and ask for some real legal advice. And if you're thinking of using a character you've actually used in a game, probably not even bring it up or tell anyone until you've already talked to that lawyer (and possibly gone through any legal/publishing processes you may need to do as well).
The odds of a game company having better access to lawyers than you can't afford are pretty good. The best way to prevent getting screwed is to not bend over in the first place.
Don't put your ideas into a game.
Wait? Whaaaa..?
I don't know, that's a very good question about the autobiography and I'm woefully ignorant when it comes to questions like that. If you're really concerned about it, ask a lawyer who specializes in US intellectual property laws. But I doubt they'd own you, just the text you put in. Also keep in mind that those provisions in the EULA are to prevent you from suing them, not giving them a way to sue you.
As for my name, it's a Japanese phrase. zenzen arimasen which means "absolutely nothing." Basically it's composed of four elements. zenzen which means "everything" "totally" or "at all" and arimasen which is two parts. ari is a verb which means "there is" or "there are". Basically ari is a statement of being. Thing is, verbs have to have a form, which is normally "masu" so "arimasu" (the u on the su is silent). Problem is "zenzen arimasu" means "it all exists". Which isn't the meaning I was shooting for. So you negate it by adding en to the end of the form, only you also cut the u off. So it comes out "zenzen arimasen". It means "absolutely nothing" or "it does not exist".
Basically it's my way of protesting losing my original forum name, which is Metallurgist.
Also, about the only two things Nepht and I have in common is that English isn't either of our first languages, and we both speak Japanese.
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If it ever gets to a point that I don't want them to continue making more promotion, then I simply have to rename, redesign or even delete so they cannot make more promotions. However images and video that was taken before this removal is entirely my responsibility.
I made it my business to understand copyright laws because I am an artist and artists need to protect their property. As well as know the consequences of recreating them in another medium.
Under US law, you couldn't have copyrighted them, only trademarked them. Trademarks can be kind of expensive. If you didn't trademark them in the USA, then they're probably not even close to protected in the USA. As for the EULA, you basically agreed to hand over the rights to the characters when you put them into CO. Though this is to protect them from lawsuits from someone who tries to sue after a game accepts a character the person owns.
If you have a problem with it, don't take it up with me. I'm just a player, same as you. Talk to PWE's legal team.
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Fraid to say it, but 100 percent true.
If you make it ingame, with their creator.... it by definition cannot be an original peice of art.
As far as bio's go, if you dont want Cryptic/ Perfect worlds to be able to "use it' as a story, you need to put it on your own site, and in your bio, drop a link to it.
This way they need to come to your site and agree to not use it in order to veiw it, very close to the legal terms of use for the this site, you agree by posting or signing in, that you agree to their terms of use
Cryptic owns everything.
And you need their prior written permission to use anything. Section 3
even on a fan website, it must include the trademark message and a link to the site
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True, However, A fanwebsite is a fanwebsite for CO, I said YOUR OWN WEBSITE, showcasing your work, and content of your own choosing, and not a fanwebsite as defined by the EULA
Second, Cryptic/New world only owns things you enter into THEIR GAME OR WEBSITE. ( of course they own game images or content etc. )
Not going to get into a contest about it, these are just simple facts, that can be verified if you so desire. I have this knowledge as I use it in my work, but I have no desire to try and argue or proove my knowledge to an online gaming forum...:rolleyes:
Ownership of everything in the game belongs to Cryptic, just not the specific combinations that may be a result. Otherwise they would own any character that is put into it from any franchise without the owners specific permission. The terms of agreement thankfully don't work that way.
I fully accept that Cryptic may use the stories and characters to promote the game within the game's limitations and only to that extent. The designs and concepts themselves outside of the game belong to me. My inserting them into the game willingly give them permission to do whatever they wish within that medium. That is how the terms and conditions apply in this case.
It seems that the only sure way of protecting the character is to get him trademarked, and I'm pretty sure that costs a huge sum of money.
The fee for filing for a trademark for a single character, last time I looked it up, is $325. That's just the filing fee. There's also the patent lawyer you have to hire to search through all the related trademarks and patents to make sure your application meets sufficient originality. They charge several hundred dollars an hour and it can take upwards of a week's worth of work. Even then, the trademark might not be approved for 5, maybe 6 years...
So you trademarked all 5 of the characters in your signature did you? Did you know that according to the EULA that you agreed to before you ever put the characters into Champions Online that the trademarks on all those characters now belongs to PWE?
Also, did you know that by even putting the characters into Champions, and allowing Cryptic/PWE to duplicate the character (technically when they send the appearance data to other peoples computers so they can see your characters, a copy is being made) that the trademark is thereby diluted?
Did you know that diluted trademarks are worthless?
Did you know that the only way to prevent trademarks from becoming diluted is to sue anybody who duplicates the character?
Did you know that all of this means that by continuing to claim that you own the trademarks to characters (and I actually have doubts that you really trademarked them) that you legally signed over to PWE, that technically speaking, PWE can interpret it as you using the forums to give them notice of intent to sue?
Did the trademark or patent lawyer you hired to help with you the trademark process tell you ANY of this?
Nope, trademarking the character isn't a viable path. Not putting the character into Champions or any other MMO is the only viable path. Infact, trademarking the character only makes it that much more stupid when you go and create the character in-game. Because not only did you spend a hefty sum to trademark something, you handed over the rights to the trademark under the EULA.
Marvel felt really silly when it came out that the characters they were suing over on City of Heroes were put into City of Heroes by their own legal team.
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Except that nowhere in the propriety clause of the EULA did I notice anything stating that trademarks for represented characters being introduced into the game in character creator would be handed over to Cryptic / PWE, only that they have the right to claim the represented character as property, not the trademark itself. See, the thing about EULAs? They're bound to have loopholes, and those loopholes can be exploited in legal battles. All it takes is a sharp-minded person, or lawyer, to point it out.
Let's say all this copyright/trademark crap is right then, they have to protect their propertty then, or lose it.
Also, i thought the EULA agrrement specifially talked about copyrights, not trademarks, so... some clarity? If they own all copyrights, how do they then take your trademark if they talked about getting copyrights?
Having said that. I'm going to write my life story in my bio in game, and then demand maintenance fees irl, or threaten them with my life and terminate their property o.O
Yeah... i sure showed them. I'm now living the dream, in my awesome Overlord mansion, and getting a retcon to be a big time billionaire. I found my loophole, now you just gotta find your own.
My advice is nice and simple no wall of text required.
Don't use anything designed by Cryptic in your comics.
Don't make your toon in CO.
Its that simple. I have a string of original characters I would love to make in the game but I know better of it.
As the OP can see none of us can agree how binding the EULA is and EULA's are flimsy at best of times. None of us are lawyers we just don't know.
EDIT * Your not a lawyer shut up >_>
DOUBLE EDIT * ^ not aimed at you OP
TRIPLE EDIT * ^ but incase you like being told to shut up and don't want to be left out ..shut up
4th EDITY EDIT THING * If your called Jenny none of the above apply cause your awesome
Nepht and Dr Deflecto on primus
They all thought I was out of the game....But I'm holding all the lockboxes now..
I'll......FOAM FINGER YOUR BACK!
And therein lies the pointlessness of people that don't even have a law degree trying to argue legal documents on a gaming forum... the most reliable of sources in the online world :rolleyes:
lol, this made me laugh at work. Especially the part about threatening to "terminate their property"
Pretty much this^
As I obviously don't have a law degree, and being nicely told to shut up, guess that's it from me.
Ive adjusted the Nepht user agreement for you.
Nepht and Dr Deflecto on primus
They all thought I was out of the game....But I'm holding all the lockboxes now..
I'll......FOAM FINGER YOUR BACK!
For the record if this is in regard to my post (I just realized it could be interpreted that way) I wasn't telling you to shut up or necessarily talking about you. Just using your point about potential loopholes in the EULA as a base to point out that its pointless for us to agrue about this since we don't have the necessary education to even know what applies or doesn't legally speaking.
Discuss on... (but all our points, my own included, are unreliable in the greate legal scheme of things :biggrin:)
I will point this out, because CO is not a purchased game and you have to read the EULA while downloading or after installing the game now, this doesn't exactly hold true anymore. Now while CA people tries to dispute this, again I point to Marvel versus Cryptic in this over this exact same issue, when players (and Marvel themselves) were creating Marvel's trademarked characters in City of Heroes. The settlement for the case was handled out of court, I believe, but the end result was still the same as a much stricter enforcement code, at least for City of Heroes and Champions, has been in place ever since.
Trying to claim that a law is in dispute in one state when there are 49 others and other countries no less, is a slippery slope argument. Since CA can't even decide if the law is right or not, it's not exactly something you can back up in writing and in fact has swung both ways in either case.
Silverspar on PRIMUS
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Except that the case of Marvel vs Cryptic is a very different case, even if it pertains to a somewhat related issue, of people creating already trademarked and established characters in game, and the question brought up by the OP is more in line of whether Cryptic actually owns our toons once we create them or not. And at least according to wiki* its not just California but in the US in general that the enforceability of EULA's might be questionable.
*which might not be the greatest authority on Earth but still can be pretty informative.
Cryptic and PWE are not headquartered in any of those other 49 states. They are both HQ'd in California (in the same area where I live actually)
The point about CO not being a purchasable game is an interesting one. Stores in my area still have it on the shelves (or did a few weeks ago when I last browsed the game aisles). Even so, you are correct that there are some who did not make a purchase before agreeing to an EULA, that is not true of all players. Still an intriguing point. It might seem to indicate that some players (who didnt buy the box) are bound by the EULA whiles others (who bought the box) are not.
The lawsuit between Marvel and Cryptic was not about the validity of an EULA so it does not really apply to the points I made. I never contested the idea of IP ownership, Trademark, etc. I merely pointed out that the EULA itself is not necessarily legally binding.
You are mistaken about CA not being able to decide if the law is, "right." The laws in question, relating to the alteration of contracts, have been upheld for years and hundreds, if not thousands, of cases.
'Caine, miss you bud. Fly high.
- David Brin, "Those Eyes"
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See Nepht? WE can agree on things. Your summary of the situation is spot on.
Problem with that is that a EULA doesn't have to be attached to a physical product. Either you agree to the EULA or you don't. If you don't agree to the EULA, they don't let you play the game. The fact that you're playing it is proof that you agreed to it. What's more, the EULA is available on the webpage for you to read prior to ever even downloading the game. As for the enforceability of EULAs. There are far more cases in which a EULA has been upheld in a US court than cases where it was found to be not enforceable.
The property clauses are most likely enforceable, but then I'm not a lawyer and I know of no times where such clauses have had to be enforced. As I've said repeatedly, that particular section is mostly there to prevent us from suing them for having our characters and IP on their game. Also to prevent things like if they or anybody else makes a gameplay video and your character inadvertently shows up. in the video, you can't go raise a stink over it like and be childish about it, since PWE owns any videos made of the game.
Except that you have to agree to the EULA before you even fully log in to the game. What's more, every time the EULA changes, they make you agree to the new one. As for the boiler plate, not sure what you're saying there, but yes, it is boiler plate. Though I'm not sure if you're trying to use that to diminish the amount of bite the EULA would have in a court, I doubt it would. I know of no cases where a contract's enforceability was in any way affected by the presence or lack of boiler plate clauses.
BTW I love the Ben Franklin quote in your signature.
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By "boilerplate" I just meant that the contract involved is the standard for all MMOs - even in WoW, they own what you create in-game (although your ability to be actually creative is sharply limited over there). It's time-tested, and lawyer-approved. And as noted above, if they don't vigorously defend their trademark, it can be considered to have lapsed (which is why you can buy aspirin from manufacturers besides Bayer, but anyone besides Kleenex brand can only sell you "facial tissues").
- David Brin, "Those Eyes"
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Exactly why it might be unenforceable under CA law.
An EULA is a form of contract. So is the purchase (at least in CA). A purchase contract implies (more than implies actually) the ability to use or benefit from the product or service purchased. A subsequent contract, in CA, cannot alter, in whole or in part, the prior contract.
It doesn't matter how many times a company requires you to re-acknowledge the EULA. Signing something that may very well be legally invalid one hundred times grants it no more validity than signing it once.
Under the strictest interpretation of CA laws on the matter, the instant Cryptic required digital signature on an EULA, after the game was purchased by the consumer, the purchase contract was void, whether the parties involved wished such to be the case or not, and both parties would be expected to be returned to their pre-contract state (consumer gets their money back, and Cryptic gets their product back).
Edit: But yeah, it would take some pretty serious shenanigans for anyone to successfully deny that Cryptic owns the characters created in their game, using their software, distributed through their servers, etc.
'Caine, miss you bud. Fly high.
The first part (or maybe the second) is the right by cryptic to change any part of the agreement with or without notice or notification.
keep discussing it, the legal points are really interesting, I only did a basic law unit. This is the first opportiunity I've had for a long time to here a good discussion on points from qualified people.
Thank you all
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They're not altering the prior contract. They're terminating the old contract and presenting you with a new contract. If you do not accept the new contract, they don't have to let you in to the game. Keep in mind, the game is run on servers they own. As such, you're effectively have to access private property to access the game. What's more is that the best you could argue for is getting a prorated refund for your remaining subscription time if you don't accept the new contract. If you're a free to play user or a lifetimer good luck on getting them to even consider a prorated refund. Since you're paying nothing monthly at that point, any fraction of $0 is still $0...
None of us are really qualified. Knowledgeable and autodidacts perhaps, but unqualified. I'm willing to bet that no one involved in the discussion so far has ever passed a bar exam, let alone graduated from law school with a law degree. For me, I have to know certain things because I run a small, freelance video game development company that has no legal team. So I have to keep up on what's what... Legal language in contracts isn't really that hard to follow. The point at which I become unqualified is that I don't know the law inside and out. I just know a few general rules that give you a fairly good chance at not getting sued if you follow them. I also have a good understanding of how to read contracts and why they are written the way they are.
Another thing that I'm aware of is that outside of a few rare exceptions, like Monsanto for example, most companies put this whole "we own you and your first born child" stuff in the contracts as a means of preventing themselves from being sued by their clients and customers. They're more worried about you suing them than they are about being able to sue you. Monsanto is a different story however. They're the corporate equivalent of a school bully stealing the lunch money from the other kids.
Namely stay away from other people's IP like the plague. The closest you should come is affectionate nods. Doing a complete reenactment of Star Wars but changing the hair colors of the characters most certainly is not sufficient to call it your own property.
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Termination of a contract that had no listed conditions of termination as part of the contractual agreement is an alteration of the contract in the most absolute sense.
Invalidation of a contract in CA requires that both parties be returned to their pre-contract state. Not a prorated portion of that pre-contract state.
'Caine, miss you bud. Fly high.
An End User License Agreement is not a sale contract. It's a effectively a terms of service. Does the sales contract guarantee you access to the game for longer than the free 30 days of subscription time? I think it's long past the 30 days of free subscription, don't you? Considering you can't even buy the game in stores anymore?
An example of a boiler plate terms of service that everybody in the English speaking world should be familiar with is "no shirt, no shoes, no service". It doesn't matter if you've bought a burger from there while not wearing a shirt and shoes before, they don't have to do it again, and they can kick you out of the place while you're eating the burger for trying it the first time. Nor would they have to refund every burger you've ever had with them upon throwing you out. They wouldn't even have to refund you for the first one if they threw you out while you were eating it.
Even if your argument had teeth, it need would have needed dentures the moment the game went free to play. It got old and all its teeth fell out.
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According to the EULA they may use the characters for purposes of the game. I signed them permission to use them. They don't own the characters, but they have the right to use them for Champions.
Its very funny how you think that PWE would interpret "I'm not going to sue PWE because all the the terms and conditions are in order" as "I'm going to sue PWE". You don't know how the EULA works. Me personally putting my characters in the game gives them permission to use that character within that medium and does not void my trademark.
All the user agreement does is protect Cryptic from being sued by me because I was the one who put the characters in there in the first place. They don't own the characters or the creative rights to them, but have permission to use their likeness for the game itself.
Giving them permission to use in a certain way is very different than giving them the rights exclusively.
What you said about not knowing very much about how it all works, it clearly shows.
I spent the money and did the filing for trademarking the characters myself so I know good and well how all this works.
If the EULA works the way you "think" it does, than the moment tv characters are put into a crossover fighting game for example, than those characters can't continue being in a tv show. Those characters are allowed to be used in the game and is allowed to be used to promote the game. Nothing more. The show can go on.
Well, i'm glad i amused at least one person... but is it sad that i actually am tempted to try my scheme on them? o.O
If you do it I'll bake some cupcakes for ya
Nepht and Dr Deflecto on primus
They all thought I was out of the game....But I'm holding all the lockboxes now..
I'll......FOAM FINGER YOUR BACK!
Well, you bout got it right most game makers, webmasters ( what an old term) , etc. write "Disclaimers" or "Terms of use"
All of them will negotiate the waters of legal terms of whom may do what with whatever may be the subject matter.
One of the key parts that must be included in them all, to release liability of owner/creator, is that the wording, content, and agreements made may be changed/altered at any time they seem fit in order to protect their individual property /rights:rolleyes:
Oddest thing. Did others notice the vanguard title and lime text color change slightly with the new forums ? I am red/green color blind and saw them as grey before. It seems as if they changed just enough to cross over into a shade of green that I can perceive.
Anyway, responses in lime above (and I do want to be sure to make clear that this is purely an interesting discussion to me and no hostility or offense are intended.)
'Caine, miss you bud. Fly high.
I don't think you're thinking about my burger analogy in the light I was intending. It's more to the point they make you agree to the no shirt, no shoes, no service thing before they actually let you eat it. You can buy it, you can have it in hand, you can't eat it till you agree. Chances are, the store would refund your money just fine if you didn't agree and hadn't eaten the burger yet.
As for the car analogy, the thing with that is that with a car, it's not expected that you're going to have a recurring monthly fee. Also, a car is not a service based relationship, like MMOs are. I admit that my burger analogy falls apart when that's brought up, though I was using it for the point of the wording of "no shirt, no shoes, no service". Point is, Champions Online is a service which is not true of things like cars, or most other things with a sales contract.
In every case where I've bought an MMO and ended up not liking the MMO, even after agreeing to the EULA, they've refunded my money... in full... Even when I purchased expansion packs at the end.
Some game, I forget what, a really early 3D mmo, had the word "Shadow" in the name. I remember it was either a Cyanworlds or an Ubisoft game. Anyway, it had an expansion that let you play as a centaur. I love centaurs and always wanted to play one in an MMO. Anyway, point is, I bought the expansion, didn't know what the game was like, they gave me my money back under the condition that I can't ever come back. I agreed and presto. That's just one example. And mind you, I was also being polite and courteous with them. That probably got me a lot further in the refund process than if I were to start spouting California law at them, hehe.
Anyway, point is, unless you call up support and ask for a refund after reading and agreeing to the EULA, there's no real way to claim that they would be violating the law, now is there? Thing about the LTS, I recall when I bought it, it said "all sales are final" before it even let me buy it. Though I do recall people reporting that they asked for and received a refund on LTS early on in the game's lifespan. I don't know the circumstances surrounding that, however.
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And people said my Avengers example was off, least that involved super heroes.
But wait hold up it still might make sense if said burger was from the Aqua Teen Hunger Force
That saying they make more sense than us
Nepht and Dr Deflecto on primus
They all thought I was out of the game....But I'm holding all the lockboxes now..
I'll......FOAM FINGER YOUR BACK!
| ME | A "Guide" Book" | | I, have a "DREAM! | ( Member since Feb 2008 ) ... ?
[SIGPIC]http://i18.photobucket.com/albums/b132/AngelOfCaine/STILLS/Misc/CO-Sig_01e.png[/SIGPIC]
I'm attacking the argument, not the person. There's a difference. Arguments don't have feelings. :rolleyes:
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Nepht and Dr Deflecto on primus
They all thought I was out of the game....But I'm holding all the lockboxes now..
I'll......FOAM FINGER YOUR BACK!
*looks around for the report button and doesn't find it*
D*mn you PWE!
Seriously, Nepht, stop trolling and spamming.
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Erm your the troll you been trolling the forums for the last few days youve done nothing but insult anyone and everyone who doesnt agree with you. That post of mine was aimed at this thread as a whole. What you seen something in that vid that cut close to the bone that you had to reply with the classic comeback YOUR A SPAMMING TROLL. I dont see how that vid is trolling theres nothing offensive in it at all no bad words no smut nothing.
But hell if you think trying to stop people fighting via humor is trolling you seriously need to get out more.
Your the only one calling people names. The only name apart from calling your troll in this post I called you was MUFFIN..I am truly sorry if you find MUFFIN offensive.
Be it Princess, old , troll or spammer thats all you have done name call because half the forum didnt agree with you. TOP TIP thats called LIFE hun.
Heck in another thread you have even called EVERYONE that has a sig pretentious
http://co-forum.perfectworld.com/showthread.php?t=153721
But please do carry on cause all you will succeed in doing ,hell what we all will succeed in doing is getting told to shut up by the mods and the thread closed
Unlike you I dont tell people what to think or write so PLEASE DO REPLY and I will happily pay no attention to it what so ever.
Nepht and Dr Deflecto on primus
They all thought I was out of the game....But I'm holding all the lockboxes now..
I'll......FOAM FINGER YOUR BACK!