Saturday, November 7, 2009

but you probably got some inside connection, so many numbers that you gotta Rolodex them

Firefox updated itself today. I'm terribly amused by one of the dev notes on why. Seems bug 468562--which was resolved and fixed in the new version--involved "Inserting multiple children without flushing".

Yeah, that's always a bad idea.

(And before anyone decides to submit a lengthy technical response, yes, I do know what they mean. I just found the wording amusing.)

"There’s a slight irony in an illicit Second Life viewer refusing to release its code in case a rival illicit viewer stole its copybot functions, which has now led to its source provider revoking their license to use its source."

Maybe it's me, I'm a tad confused. First, when did Emerald go on the list of evil copybot viewers? I hear the rumors, I know how paranoid people are getting in world, but Emerald is also popular for a reason, and it's not the potential copybot functions--it's due to Emerald working, and the official, approved viewer not working, for many, many people right now.

And a new study has determined macaque monkeys experience the uncanny valley, as well.

Let's talk about fans for a bit, and the real world versus the virtual world.

Anybody who's ever been to any convention--and I do mean any convention, here, science fiction, fantasy, faery, rodeo, triple-accountancy--any gathering of fans works for this example--will find people dressing up as their favorite characters or concepts. Doctors have costume balls, so do hardcore Browncoats. Granted, you'll usually have far less variety with conventions of doctors and lawyers, than sf, fantasy or horror fen, but it's there.

So where is the line drawn between fan enthusiasm (and fair use) and copyright infringement? Some people believe it's profit; that is, when one stops dressing up to imitate what they revere, and starts charging for it. While the actual law doesn't explicitly state that this is the defining line, though many, many people (on the grid and off) seem to assume it is.

The Fair Use Doctrine detailed in U.S. copyright law (and keep in mind, since Linden Labs is based in the US, I'm using US law nearly exclusively for these discussions) details four allowable uses of previous copyrighted materials:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
4. The effect of the use upon the potential market for, or value of, the copyrighted work
Let's break that down. For fair use to be applied (properly), the nature of the transformed work should be primarily (though not necessarily) educational in nature; should be seen as satirical, or broad parody; should use a small portion of the original copyrighted work, rather than a large amount of it; and should not dilute the market for the original work.

Adam Hughes' artwork falls largely within this set of strictures. While he has permission now--and, in fact, has worked as a freelance artist for both Marvel and DC, along with other companies and corporations--he started out as just another pinup artist (albeit a very good one). During his years before being hired and paid to do the work he was already doing, he'd reinvisioned most of the comic-book superheroes as female. Batman became Batbabe for instance, and inspired a whole host of others that were seen in the pages of Amazing Heroes magazine (in particular, their yearly swimsuit issue): the Green Lantern, Dr. Fate (inspiring a later shift in canon for that comic line to a female Dr. Fate), Spidergirl and others.

Was he directly infringing intellectual copyright? No, because at that point he was not painting--or selling--direct reproductions of the ideas and images as originally presented. That last is important--as originally presented.

The Organization for Transformative Works lists this definition of "fair use": "Fair use is the right to make some use of copyrighted material without getting permission or paying. It is a basic limit on copyright law that protects free expression. "Fair use" is an American phrase, although all copyright laws have some limits that keep copyright from being private censorship.

"Fair use favors uses that (1) are noncommercial and not sold for a profit; (2) are transformative, adding new meaning and messages to the original; (3) are limited, not copying the entirety of the original; and (4) do not substitute for the original work. None of these factors is absolutely necessary for fair use, but they all help, and we believe that fanworks like those in the archive easily qualify as fair uses based on all these factors.
"

Okay, that seems clear. Don't sell anything, we won't get into trouble. Problem solved. But that's not exactly the biggest part of the problem.

The Fair Use portion of the US Copyright page goes on:
Copyright protects the particular way an author has expressed himself. It does not extend to any ideas, systems, or factual information conveyed in the work.

The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.


So. We come around to fans again. Fans are people driven to celebrate whatever they're fans of, and by and large fen do it with exuberance and a fair amount of style. From Babylon 5 fans to Browncoats, cosplaying anime fans to cosplay of alien races, fans adopt what they admire and make it their own. Women get tattoos based on the Terre d'Ange books of Jacqueline Carey. Fans of the Gor books by John Norman get branded. Fen get married dressed as their favorite characters; they have wedding cakes based on their favorite games, or even their favorite products.

We see this on the grid, too, everywhere--from Disney to NASCAR, Buffy to Star Wars, there are avatars, clothing, eyes, hair for sale; the Burtonesque store trades on everything Tim Burton. Alice in Wonderland? Which sim did you want to start looking?

There are Star Wars sims, Star Trek sims, Babylon 5 and Firefly cosplayers. There's a Kaylee Frye in world; she roleplays in a lot of places, but one of the places she plays is Washtown. And the aforementioned Gor, start to finish--how many Gorean sims are there now? Gorean groups? Kajirae and scribes, Free women and Panthers, roaming the lands of John Norman?

And when it's just us, making items for our own use, for our own avatars--well, what's the harm? We are well within the provisions of fair use: taking the original idea and making it our own creation. Anyone, on the grid or off, can dress up as Alice in Wonderland, Princess Leia, Harry Potter, Willow Rosenberg--and there is no copyright violation in the least. We are imitating, we are adapting, we are transforming the original concept, and the principles of fair use protect us when we take pictures of our creations and post them, when we walk around in public in our costumes, when we use lost wax casting to recreate the badge of the Psi Corps or the key of the TARDIS.

But fan behavior in virtual worlds is not the same as fan behavior in the real world. What protects us--even at conventions of our own, where we wander merchant tables packed with posters, books, Jedi robes, Renaissance costumes, action figures, movies, filk music and artwork--won't protect us on the grid. Whether or not we are fans, what we sell to make--that is not our own to sell and make--on the grid comes across as a far more direct financial compensation.

Think of it this way: I make Drew Barrymore's ball gown from Ever After. If I make it just for me--resized, adapted to me, embellished in patterns I like--it becomes a transformative work, and it is perfectly, legally, allowed.

If I create it exactly as shown, with embellishments (and you can find great pictures to do just that on the Costumer's Guide exactly as seen in the final finished movie gown, it's still allowable; in fact, it's even allowable to sell, because fabric is a very tricky thing--to violate copyright on a costume, I would have to cut a similar length of cloth from the exact bolt of fabric used for that production, plus match the thread, the seam style, any beads or buttons...trust me, it's complicated past that point. By and large, all costuming is safe.

But if I set up a web store, say, and sell these duplicates, as matches for the movie costume--I am in copyright violation. Because I am claiming work that I have not done, as mine.

Fair enough, as far as it goes--so where does the grid come into it? And this is where things get tricky again.

Because anyone on the internet has a variety of ways to receive images, and retrieve them once received--it is possible to create exact duplicates of something that has already been created. This goes far beyond branded logos (we've already had the Coca-Cola wars on the grid, after all) and deeply into what we can, as fen, as artists, as merchants, legally create? And these are the kinds of issues we face, now. It's entirely separate from copyright infringement and texture lifting, which is its own problem; this one has the potential to increase paranoia on a wide scale.

For instance:
* Am I in violation of Amy Brown's intellectual property rights if I make a fantasy outfit with striped stockings and faery wings?

* Am I in violation of Lucasfilm's IP if I make a Twi'lek headdress?

* Am I in violation if I get some good latex highlights and remake Trinity's outfit from the Matrix films?
It's far too easy to see something, desire it, and--because we are virtual creations, living in virtual spaces--recreate it. Architecture, outfits, furniture, avatars--it is all within our grasp. But should it be? That's the important question, and--until we decide whether we're fans, artists, or merchants--it's one we need the answer for.

6 comments:

Peyote said...

The question that becomes muddled by some industries efforts to deny even fair use right in reaction to digital duplication and tools becoming available to fen that can top the professional creative resources of just a few years ago.

I believe the litmus test for fan works should be one question: Does fan art promote or compete with commercial sales?

If Marvel or DC don't have stores in SL selling superhero costumes, and probably never will, how are they losing anything from SL creators selling them in world? Does a Green Latern sim harm or help the franchise?

I've heard an author say, "I love fan fiction based on my works. But, if you ask me for permission, my copyrights require me to say 'no'. So, don't ask."

Prad Prathivi said...

My comment wasn't suggesting Emerald was the illict viewer at all - Emerald is the base code that some illicit viewers base their own code on.

samanthapoindexter said...

I think you may be misparsing Prad's post... the "illicit Second Life viewer refusing to release its code" isn't Emerald, it's whoever it is Emerald is threatening. (I'm not sure who. Prevailing rumor seems to be NeilLife, but I'm not sure this actually applies. I've found the source code for his 4.2, and I'm not sure the current code isn't actually hidden somewhere on his blog. I'll grant that he doesn't make it easy to find.)

Emilly Orr said...

Peyote,

That author's right--privately, they can celebrate the creativity brought to their work by fan authors; but publically, because of current copyright law, they have to say no if asked. A lot of fan works function 'under the radar' in such a fashion, and they know it.

And that's actually one of the points of fair use provisions to copyright law--dilution. Does the fan-produced work impact authorized commercial sales? Does the fan-produced work dilute the possibility of future sales? Of course this ties in with fans who actually sell their creations, yes; but it also ties in with perceptions.

To reference Marvel or DC, in world: that's a good argument if Lindens are just 'play money' and don't go anywhere. But lindens are purchased with hard currency (or as hard as most currency gets, these days), and they can be translated back out into hard currency, so people making their money on direct IP infringement need to realize that--if it was just in-world, for local coin, there would be no product dilution, directly. But because of the quirk that is Linden dollars, those sales add up to direct real-world profit--and while they have not in specific SL cases to date retaliated against SL designers of superhero wear, they have the right to.

In a sense, in that case, it does come down to commercial vs. educational--if someone makes their own Green Lantern costume, for instance, that's one thing; but if they charge for it, and that fee can then be translated into money spent RL, that may well have an impact, in some fashion.

And while Marvel and DC do not have official stores in Second Life, they do follow copyright claims assiduously in both Champions Online and City of Heroes/City of Villains. In my mind, it's only a matter of time before their attention drifts over.

(And to reiterate, in case it's unclear for anyone reading: no. I do not work for either company, I am not in touch with either company, I do not intend to make them aware of it, and I do not have a vendetta against Boxed Heroes.)

Emilly Orr said...

Prad: You're right, I didn't read what you said correctly. In fact, I decided to expand on that to the next entry.

Emilly Orr said...

Miss Poindexter: They seem to be directly referring to NeilLife, yes; but as to whether he has released his code, well, as said in the next entry, he doesn't have to release it openly and visibly, he just has to mention that on request he will release it--and then, on request, do so.

And apparently, that is what he hasn't done, and that is why Emerald revoked their code use to anyone who is noncompliant with OpenGL and FLOSS licensing provisions.