The Marvel Brothel (A late comment)

Over the weekend, there was some talk about an RPG that was called “The Marvel Brothel” and was essentially Professor Xavier of the X-Men deciding to better the mutant relationship with mankind by turning his school for the Gifted and Extraordinary students into a brothel starring some of the series’ favorite characters.

However, when I investigated this morning in order to link to the game, I found it had been taken down. Therefore I will point the reader to a few sources that provided screenshots and commentary, and will say a few things about fair use and popular media before being sad I never got to experience the thing for myself.

Fair use, as stated previously, is a legal defense to copyright infringement that protects artists and researchers (primarily) who remix and republish creative content in their artistic work and research. The four factors are enumerated in 17 U.S.C. §107, and are supposed to be given equal weight by the judge deciding whether the defense should apply in the case before them. In the US we also have a limited trademark fair use defense, which might also have been needed here because generally popular characters are protected under both copyright (creative idea, general style) and trademark (distinctive look and feel, specific possibly registered design) principles.

Would fair use have applied? Possibly, because the game’s author did not appear to be making money off the game, had used a free game design engine to create and share his or her work, and had put an interesting spin on the characters from a popular world without focusing too greatly on any one creative element beyond the character design. The big “However” comes because borrowing characters graphically is generally less acceptable than doing so in writing, which is why fanfiction is often ignored by publishers while fan-based artwork is not. In addition, Marvel, now owned by Disney, is one of the more litigious publishers out there, and both companies are very diligent about protecting their “family friendly” brands, meaning that it’s possible the game isn’t available because of a quick draw nasty legal letter.

Whether it was a good game or not is actually fairly irrelevant to most of the legal analysis, though the popularity and exposure would have played a part in determining the extent of potential trademark infringement. All in all, a good thought exercise, but not one that most individual game developers would be willing to follow through with by themselves once attention was drawn.