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Federal Judge dismisses several claims in City of Heroes lawsuit

A Federal Judge has in Los Angeles has dismissed a number of key claims in Marvel's legal action against the makers of City of Heroes over the potential its character creation tool has for infringing its copyright.

Comic book giant Marvel's legal action against City of Heroes publisher NCsoft Corporation and developer Cryptic Studios has taken a heavy blow this week after a US district court judge in Los Angeles dismissed a number of key claims.

Judge R. Gary Klausner dismissed more than half of Marvel's claims, NCsoft revealed in a statement this afternoon, including Marvel's claims that the defendants directly infringed Marvel's registered trademarks.

Judge Klausner also agreed with the defendants that some of Marvel's allegations and exhibits should be stricken as "false and sham" because they were not actually created by users of the game but by Marvel itself.

He further dismissed Marvel's claim for a judicial declaration that defendants are not an online service provider under the Digital Millennium Copyright Act, which offers a degree of protection in such cases.

Furthermore, he dismissed these claims without leave to amend, meaning Marvel cannot file them again.

The court also cited a 1984 Supreme Court case which holds that the sale of VCRs does not violate copyright law, noting, "It is uncontested that Defendants' game has a substantial non-infringing use. Generally the sale of products with substantial non-infringing uses does not evoke liability for contributory copyright infringement."

In other words, the court is satisfied that City of Heroes is primarily a massively multiplayer online role-playing game and not a copyright infringement tool.

While certain claims were allowed to survive the motion to dismiss, the defendants have 10 days in which to answer and dispute them and asset legal defences, and NCsoft and Cryptic Studios are confident of overcoming them.

This latest news of the case comes after the defendants issued an impassioned plea in their motion to dismiss defending the creative freedoms of artists and declaring that if its character creation tools were deemed illegal, so should be the pencil and other creative implements.

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Tom Bramwell avatar
Tom Bramwell: Tom worked at Eurogamer from early 2000 to late 2014, including seven years as Editor-in-Chief.
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