Wednesday, October 14, 2009

he best advice she said was just forget it, but the ants will march until their queen has come

(Much of today's article was written by reading through the Copyright Page found on the website of the Artists Rights Society of New York and the United States Copyright Office webpages.)

Really interesting--in a psychotic fashion, of course--way to announce a new video game hitting the shelves.

I particularly like the lock of long black hair. That's just perfect.

And Amanda Palmer talks more about music, sponsorship, fans and trust.

Physical art follows real copyright law, just as digital art does, and it does not fully adapt to an understandable protection set for the users of virtual worlds, but at least it's a starting point. So let's go from the basics to the specifics.

Copyright, as defined by U.S. Title Code 17 provisions, is a form of protection reserved to the creators of original works, which can include literary, dramatic, musical, artistic, and other intellectual works. Copyright can extend to unpublished work as well, depending on the work.

According to the Wikipedia page on the Copyright Act of 1976, these significant protections and provisions were added:

Under section 102 of the Act, copyright protection extends to "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device".

That's a pretty long definition, but it goes on to define "works of authorship" as any of the following:
1. Literary works (fiction, non-fiction, poetry, prose or verse, dictionaries and thesaurii, cookbooks, craft books, autobiographies and biographies--you get the idea);
2. Musical works (with or without lyrics, any form of musical composition);
3. Dramatic works (with or without music, covering all plays ancient and modern, and all derivative works from plays, musicals, and performance pieces);
4. Pantomimes and choreographic works (from street performance to Broadway dance exhibitions);
5. Pictorial, graphic, and sculptural works (physical sculpture forms in all media, paintings, drawings, and sketches, and any and all graphics, both physical and digital);
6. Motion pictures and other audiovisual works (film and other recording forms, including television broadcasts, cable television broadcasts, and satellite television broadcasts);
7. Sound recordings (music, performance, comedy, and audiobooks);
8. Architectural works (small or large in scale, buildings for private or public use, utilizing any building form).
The owner of the copyrighted work in question is generally granted "the exclusive right to do and to authorize others to do the following:
1. To reproduce the work in copies or phonograph records (and, unspoken but treated as given, digital reproductions);
2. To prepare derivative works based on the copyrighted originals;
3. To distribute copies of the work to the public by sale or other ownership transfer, or by rental/lease/lending of the original work or a copy of the work;
4. To perform the work publicly (reading aloud from a literary work, performing choreographed movements or musical pieces from the work, pantomime derivations of the work, or audiovisual representations of the work; this [again unsaid] would also include releasing audio or audiovisual works on the net;
5. In the case of sound recordings alone, the law has been amended to include all forms of digital audio transmission.
"Sound recordings are defined in the law as 'works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work' ", as those are in general protected by the copyright section regarding audiovisual works, according to the U.S. Copyright Office. In addition to the copyright provisions listed above, works of visual art have also been granted independent attribution rights, and artistic integrity rights, further explained in section 106A of the 1976 Copyright Act.

Okay, so that's what copyright law (in the United States, at least) currently covers; how long does it last? According to the U.S. Copyright Office, copyright protection exists from the first moment the work is created in "fixed, tangible form"; in other words, the first time a tangible, material copy or phonorecord (or, I would assume, equivalent digital recording or publication; I might be wrong on this, how'ver) is made of the original work. If the work is copied over a period of extended creation time, then each period of creation creates copyright for that section of the original work.

Only the original artist (author, dancer, performer, architect or the like), or those individuals deriving rights through the original artist (in the case of commissioned works, for instance, where the holder of copyright is the patron, or splits the rights between the patron who commissioned the work, and the artist who created or performed the work) can rightfully claim copyright on such fixed works.

Sometimes copyright is conferred from first date of publication; in these cases, generally copyright is granted to the publication for the run of that publication: for example, if Smithsonian Magazine published an article on Chinese representations of the horse in historical art, in their September/October issue, the copyright would be © to the Smithsonian Business Ventures Group (and/or the Smithsonian Institute) for the period of that print run. Generally, that would be two months--September to October--inclusive; for the period of September of the current year to September of the year following; or from September of the current year to February of the year following (a six-month run). In all cases, rights would then revert to the author of the original work; they are, with very few exceptions, never held in perpetuity. (And if they are, you've signed a bad contract; don't do that again.)

Now, in this light--original "fixed" nature of work--and remembering that unpublished work can be considered to be under copyright if a copy is made; would it not then follow, on the grid at least, that the first time we copy any original prim or system-layer object/item of clothing, we haved fixed that object in terms of copyright?

Think about this. Say I create a rug from one of my textures. If the properties are pulled up on that texture, it will say I created the rug on October 11, 2009. The original texture will show I uploaded it to the grid on October 8, 2009. If someone then comes and downloads that texture from looking at the copy I have in my store, set for sale, and then puts out their own version dated October 15, 2009, mine would be the earlier "fixed" attribution of copyright for any conceivable claim, yes?

Is my copyright--always assuming I created the images to use in the uploaded texture in the first place--diluted by the infringement of my work? Yes. Of course it is. Is there a way to recoup potential financial loss? Not so much. But I can, assuming I own the textures, and thus, any derivative works of them, claim copyright violation to the Lindens, whereupon they will be bound by the laws of the DMCA to block such content from being seen on the grid.

This is, of course, all assuming I even know who infringed on my copyright; on the grid, sometimes it's harder to trace who's lifted what for sales elsewhere.

According to the provisions of copyright, however, origination is key; simply having a work in your possession does not confer copyright ownership:
The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey the copyright or any interest in the copyright. This remains in the possession of the creator and is often referred to as the underlying artist’s copyright, distinct from the physical object which embodies it.

Thus, no transfer of copyright-exclusive rights can be made, in terms of the original creation. I've always wondered where that puts collage-level works; because in essence, this is what much of SL creation comes down to:
1. LSL script for operation from Avatar X;
2. Prim created originally by Linden Labs tools for use within the Second Life medium;
3. Sculpt map to form the prim created by Avatar Y;
4. Texture created by Avatar Z.
In such a case, all you've actually done is assembled parts and put them together in a fashion of your design. Does this, then, constitute an original work that is then protected from the moment a copy is created of said design; or does this constitute a multiple ownership of copyright (you, the Labs, and Avatars X, Y and Z)?

Is anyone else falling asleep? I know these are important questions, but honestly....And in all honesty, most of the residents on the grid don't want to think this much. They want their copied fashions and their "anonymous" textures and their free jewelry and their discount shoes. They don't want to have to ponder where the texture came from; where the sculpts came from; whether anything was acquired illegally.

Any or all of the copyright owner's exclusive rights or any subdivision of those rights may be transferred to another party, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the copyright or such owner's duly authorized agent. Such transfers are comparatively rare in the U.S. and are almost never knowingly engaged in by European artists. For more on this subject, go to “Related Topics” and see the pages titled “Do U.S. Owners of Works of Art Also Control the Copyrights?”

Everything I've learned about copyright in the last few days tells me, this would also cover things like Darien Caldwell's publicized flounce offworld, wherein she boxed up everything she'd ever created and set it out for "free"--for whatever use those who happened upon it would use it for.

Does an in-world notecard under an avatar name constitute transfer of copyright? Because if it does not, then every item that can conceivably used from that box retains original copyright to Darien Caldwell, and not to any subsequent scripters, animators, or makers of objects or outfits on the grid.

Now, that mention earlier of unpublished works; by which, I believe I mean, works which are not published under anyones' press/label, including vanity press/labels; this is what the Artists Rights Society says on the topic:

Unpublished works: All works that are unpublished, regardless of the nationality of the author, are protected in the United States. Works that are first published in the United States or in a country with which the United States has a copyright treaty or that are created by a citizen or domiciliary of a country with which the United States has a copyright treaty are also protected.

Which brings us, I suppose, back to collage, which has a tricky and wandering path to copyright. If most of the created objects on Second Life fit, truly, into the artform of collage, then how are those works protected?

First off, this is a good basic link that reinforces quick answers to all copyright issues, while not specifically addressing collage art; and the Bridgeman vs. Corel court case is excellent to read through regarding photographic reproductions and copyright infringement. And this link addresses some of the uncomfortable issues surrounding works commonly assumed to be in the public domain, that may in fact not be released yet from the provisions of copyright.

In this light, I myself may have textures on the grid that are in violation of copyright--while I maintain that the ragtime music covers I collected, retouched, aged, frayed, and backed with public-domain aged paper and shadowing are original works, per se--I may well be wrong. I'm not entirely sure, in fact, whom I'd need to contact to ascertain copyright release; though I'm fairly sure that since I was using the art of the sheet music covers, and further detailing them, without use of the music found within those (physical, not virtual) covers do not resemble my extracted work enough to qualify.

But, as said, I may be wrong.

From's page on "Derivative works":

For a derivative work to be copyrightable, it must be "different enough" from the original works that it can be considered a new work in its own right. For most collage artists, this is not a problem. The very nature of collage generally involves combining multiple elements to create a new whole. However, keep in mind that the changes must be significant. Minor alterations to a single other work might not be "different enough."

Most important to the collage artist is that a derivative work can only include copyrighted material if it is created by the owner of the copyright on the original material, or with that person's permission. This means that making a collage that includes photos from National Geographic, Rand McNally maps, or pictures of Andy Warhol paintings, is illegal unless you have obtained permission from whoever owns the copyright on those works.

Or, unless we can ensure that those pictorial representations are in the public domain.

But this also means that, for sale or not, "mixed" collage works in world--a collection of punk music tour posters; scattered seed/flower/fruit label squares, the sort seen on slatted wood crates, baked and shadowed onto a wallpaper wall; or the former highly aged and faded labels and movie posters I had layered onto the walls of the old business above Autogenic Alchemy in Penzance, Kartiny--all of those, were the copyright holders found, could be declared illegal. DMCA protections could be filed.

There is no avatar on the grid who is exempt from this, and, I'd hazard the guess, no Linden on the grid, either. Everyone has at least one example of copyright violation in their inventories, whether they knowingly bought a stolen item in world or not. Linden Moogle avatar freebies that have been around since 2005, "free" texture packs available in every welcome hub, practically, that were ripped from other games (Unreal, Doom and Quake among them), Poser files that have been stripped and released in world, in violation of user agreements from their creators' sites...the list can and does go on.

Once again we reach this inescapable point: protesting the "theft" of items from a virtual world, when one may not clearly own copyright to those items in the first place, serves only to muddy the waters. None of us have clean hands regarding copyright infringement. None of us.


Darien Caldwell said...

Does an in-world notecard equal a transfer of copyright? I say it does, just as much as a header in a source code file, or any other means of communication.

It's an expression of my wishes, on items I hold the copyright to. The notecard is a record of that intent, so that even if I had the inconceivable notion to suddenly try to take back my works, there is proof that those rights had been rescinded. It makes a big assumpution however, that a virtual entity can hold copyright, which has not been proven to be true.

In any event, I have no desire or motivation to try to take back that which I have given out. People can enjoy the fruits of my labor for as long as SL may continue to exist.

Emilly Orr said...

That's a good point, I'd forgotten about the notecard.

But that's also a good question--can a virtual entity enter into copyright protections and provisions? I know I, myself, have signed a non-disclosure agreement for the terms of my service with PPC, but at the time they also had my RL name and address. And everyone who's declared suit against the Labs becomes "Avatar name (Real name in RL)" in coverage.

Thank you for commenting, but damn, now I have a whole new sideline to run down...