Our own Fred von Lohmann has a new Law.com column chronicling the misadventures of Marvel Comics as it seeks [PDF] to hold NCSoft Corp. and Cryptic Studios -- the operators of an online game called "City of Heroes" -- liable for the alleged copyright and trademark infringement of people who don virtual masks and "become" their favorite (Marvel) superheros.
Marvel's assertion of copyright and trademark rights over the noncommercial expressive activities of its fans is both unprecedented and unnecessary. The fundamental justification for copyright is that we must tolerate a limited statutory monopoly on expression in order to secure an adequate incentive for the creative industries. That's an adequate incentive, not the maximum conceivable incentive. ... Does anyone believe that Marvel will fire its authors and close up shop if it can't prevent little Johnny from pretending to be Wolverine online?
When will the "content" industry begin to recognize that there are long-term rewards for letting fans be fans? A fan's gratitude and loyalty lasts a lot longer than the judgment-money from shutting down the playground.