This is a topic that I’ve been thinking out for quite a while now, and after a conversation with Kristi Maurer, it’s evident that I’m not the only one.
SL Photography is a whole industry in itself in Second Life, with thousands of residents having Flickr streams and Koinup accounts, and businesses in world which make their trade from the viewer’s snapshot function.
But how ethically are these businesses behaving? When you take a photograph for financial gain, are you not making a direct profit from other people’s creations in that picture? For example, you’re doing a modelling shoot for a client who wants a series of pictures done for a portfolio. You quote a price to them, but will any of that money go to the designer of the skin/eyes/hair/accessories/clothes/shoes?
If you take a nice scenic shot of a beautiful sim, and then frame it and put it up for sale in a gallery, shouldn’t the owner/builder of the sim get a cut? Should you not at least ask permission to use the land for a commercial artwork?
Lets look at this from a legal point of view according to US Law. If a photographer creates photographs in their own interest, in their own time with their own equipment from public land (or private land where they have the required permission), the resulting photographs are clearly morally and ethically the photographers property.
So it’s okay to take pics and sell them on?
Not quite.. we need to bring “copyright” into this. In the past, you had to specifically state a copyright. However, since 1989, almost everything created originally and privately is subject to copyright by default, regardless of notice. Additionally, it doesn’t matter if you charge for it or not – by giving it away for free, you’re still attaching a value to the work, albeit a null one.
The section of copyright that concerns us is that the copyright owner has exclusive rights to reproduce their content, and photographing this content is considered a reproduction.
But don’t assume the copyright owner is the content creator.. that needs checking out too. A lot of people think that all content in Second Life is owned by the creators of the platform – Linden Labs. However, the Terms of Conditions state:
3.2 You retain copyright and other intellectual property rights with respect to Content you create in Second Life, to the extent that you have such rights under applicable law. However, you must make certain representations and warranties, and provide certain license rights, forbearances and indemnification, to Linden Lab and to other users of Second Life.
Hmmm.. that’s rather vague. Lets read on:
Notwithstanding the foregoing, you understand and agree that by submitting your Content to any area of the service, you automatically grant (and you represent and warrant that you have the right to grant) to Linden Lab: (a) a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, non-exclusive right and license to (i) use, reproduce and distribute your Content within the Service as permitted by you through your interactions on the Service.
Okay, so apparently Linden Labs are allowed to reproduce our content and use it however they wish. So if you work for Linden Labs, you’re allowed to take pics and sell them on. But what about the rest of us?
(ii) use and reproduce (and to authorize third parties to use and reproduce) any of your Content in any or all media for marketing and/or promotional purposes in connection with the Service, provided that in the event that your Content appears publicly in material under the control of Linden Lab, and you provide written notice to Linden Lab of your desire to discontinue the distribution of such Content in such material (with sufficient specificity to allow Linden Lab, in its sole discretion, to identify the relevant Content and materials), Linden Lab will make commercially reasonable efforts to cease its distribution of such Content following the receipt of such notice, although Linden Lab cannot provide any assurances regarding materials produced or distributed prior to the receipt of such notice.
Okay – the term “third parties” is pretty vague again, but it could be argued that that includes other SL residents. So while other SL residents have the right to sell photography which may feature the works of content creators, it’s within the copyright holder’s power to notify Linden Labs to stop the works being distributed.
You also understand and agree that by submitting your Content to any area of the Service, you automatically grant (or you warrant that the owner of such Content has expressly granted) to Linden Lab and to all other users of the Service a non-exclusive, worldwide, fully paid-up, transferable, irrevocable, royalty-free and perpetual License, under any and all patent rights you may have or obtain with respect to your Content, to use your Content for all purposes within the Service.
By about this stage, my head exploded and there are huge red stains across my bedroom wall. This paragraph seems to undermine everything we thought was protecting the copyright holder’s content, by opening it up to a royalty-free license to all other users of the “Service”. That basically means that SL residents can take photographs of creator’s works and sell them within Second Life, without the need to pay royalties.
However, automatically granting a user permission to use the copyright holder’s content does not mean that it can’t be withdrawn.
4.3 You will comply with the processes of the Digital Millennium Copyright Act regarding copyright infringement claims covered under such Act.
I’m pretty familiar with the DMCA, so I pulled this paragraph out of it:
Section 1201 divides technological measures into two categories: measures that prevent unauthorized access to a copyrighted work and measures that prevent unauthorized copying (“Copying” is used in this context as a short-hand for the exercise of any of the exclusive rights of an author under section 106 of the Copyright Act.
Consequently, a technological measure that prevents unauthorized distribution or public performance of a work would fall in this second category.) of a copyrighted work. Making or selling devices or services that are used to circumvent either category of technological measure is prohibited in certain circumstances, described below. As to the act of circumvention in itself, the provision prohibits circumventing the first category of technological measures, but not the second.
That’s right – the content creator can file a DMCA and give Linden Labs notification to take down the infringing work, which would be the photographs up for sale. I’d imagine it would be a lot more difficult for a content creator to file a DMCA against a user who does photography for a model’s portfolio, or something which is not sold as an object in world, or stored in inventory.
So there you have it – unless a content creator specifically files a DMCA to take down infringing content, you are fully within your rights as an SL photographer to sell your works in world without having to pay any royalties.
Disclaimer: This article is the author’s personal interpretation and should not be taken as a legal clarification. The author is not a qualified attorney and will not be held liable for statements made in this article. The article is simply a personal interpretation. This article is not endorsed by Linden Labs, and has no legal value or significance. Basically, if you get sued, don’t bother trying to blame me.
References and Interesting reading on this topic:
10 Big Myths About Copyright Explained
Rrishanna on August 14, 2008
You should be a lawyer, not an architect.
Art Fossett on August 14, 2008
There have been similar discussions on the machinima list(s) aboput whether permission needs to be sought before making machinima on someone else’s sim. I tentatively proposed a set of CC-like Machinima Commons licenses (see http://artfossett.blogspot.com/2007/12/machinima-commons.html) though haven’t made any headway – probably rightly as it is an over-complex solution I guess.
Bailey Longcloth on August 14, 2008
US law can and will make your head explode after prolonged exposure. US law is also written specifically vague, it’s in no way shape or form black and white on any issue. It is all up to interpretation. The argument for or against any one position is how lawyers make the big bucks. You’ve got a successful argument Prad. A very clear interpretation of the copyright for photography. A good lawyer however would argue royalties are due for using protected items in a photograph that you intend to sell. They would point out that you are essentially *recreating* their work and using it for financial gain. *Would that photograph you are selling be worth what it is without the landscape, building, clothes etc?* They would say no, you’d have no photograph and therefore royalties are due for it’s use.
Personally, I agree with your argument. I’m going to run away now before my head explodes and my co-workers start to wonder.
Beanie Canning on August 14, 2008
I’m thinking about when Anshe Chung brought suit, or attempted to, when she was photographed with the flying penises about her during an interview.
Her claim, if I recall correctly, was that no permission had been gained for photographing her dress, which she had designed, and on which she held copyright.
If I further recall correctly, the suit was dismissed, with a ruling that that we are all free to photograph any/all SL content, and to distribute those pics. What I don’t recall is whether that included commercial distribution.
Don’t have time to look up the articles right now, so thought I’d just leave a mention as possibly pertinent to this topic.
Beanie
Prad Prathivi on August 14, 2008
Hey Beanie – thanks for your comment. In the real world, we’re entitled to take pictures which are “newsworthy” if it’s deemed that they’re in public interest. That’s pretty much why celebs can’t sue for the pics of them being drunk in the gossip columns. In such cases, copyright won’t apply and people can sell those pictures on if they wish.
Anshe Chung made a pretty poor argument it’d seem, as the focus of the picture would have easily been argued as not being the dress, but the flying genitalia.
I find that case interesting though, as it suggests something of a legal precedent. Thanks for letting me know – I’ll definately be looking it up! =)
Connie Sec on August 15, 2008
I’m no lawyer, However I will say, using what i see as common sense. that worrying about the copyright on an object that you happen to wear, be in or in front of is rather a waste of time and space.
If it really was an issue, then about 90% of all pics in RL infringe on copyright..u took a pic at Disneyland with Micky Mouse, and you expect Disney to charge you with infringement of copyright??…Get real
Prad Prathivi on August 15, 2008
Hey Connie – thanks for your thoughts. I offer a counter, in that a real world court would suggest that content in Second Life would be termed as “Digital Art”, or simply as artwork. 3D modelling pieces are often categorised as art.
Now take the same scenario that you offered – if you went into an art gallery and took pictures of the art in there, and then started distributing copies/selling copies, then that would be termed as a breach of copyright.
Elsbeth Writer on August 18, 2008
I do landscape photography in SL. And yes, I sell pictures of other peoples creations, but selling a picture in RL of a landscape that includes a house or maybe a church does not bother anyone, so why should it in SL? The architect does not sue for copyright infringement, nor does the landscaper, or the builder. NO one has ever approached me with this concept. In fact, people are thrilled that I thought so much of their build that I want to take pictures. Please note, I DO NOT sell pix of private residences, ONLY PUBLIC AREAS.
Prad Prathivi on August 18, 2008
Hey Elsbeth – thanks for the comment! In RL, as long as you’re on public land, you’re entitled to take pictures and sell them on under copyright laws.
In Second Life, the grid is technically owned by Linden Labs, who in turn “sell” land to residents. There’s no legal precendent as to who actually has the rights of the land in question to copyright infringements, but re-read my conclusion that you are well within your rights to sell SL photography, according to my own reading of the copyright laws.
And for the record, I’d be more than honoured if you thought my own builds to be worth taking a picture of..
Landsend Korobase on August 19, 2008
Hmmm. Well I do happen to have a law degree, including an elective component on intellectual property, and I happen to teach at 2 universities, both in the area of law, which is all totally irrelevant, frankly I’m just showing off.
It’s a complicated area of the law, complicated further by constant technological advancement, international boundaries through which the law is applied, and the fact that contracts can vary the basic rules to the point that we should probably all get lawyers or do law degrees (and tbph, I wish they did teach the basics of law at highschool).
My principal interest in the field is at the philosophical level – how intellectual property laws fit into the structure of basic rights, the arbitrariness of the time-limits involved, and the attitudes of people towards it – how it often clearly reveals the underlying political, social and economic views of people. *sits back and analyses the populace from her ivory tower*
Interesting read though, nice research and effort put into the piece Prad. This sort of thought and attention to detail is why yours is the only blog I can frankly be bothered with. I’m not a “blog-person”, but yours continues to be relevant and insightful and even educational.
*claps*
Bettina Tizzy on September 9, 2008
So so interesting. Prad, thank you for going down this difficult road and taking us along. I also appreciate your very balanced view.
May I take this further and provide yet another example that is gnawing at me? Take a look at this situation that just cropped up today: http://twurl.nl/dmsaf6 (see comments!!!!) It seems that Asher Moses from the Sydney Morning Herald was advised that photography taken in Second Life, or “screenshots,” cannot be owned by the Resident photographers. While LL’s ToCs state the contrary, I find it ultra annoying that this nincompoop believes that the creators of digital artwork that originates in-world don’t merit copyright protection.
Your thoughts?