Monday, October 25, 2010

some bullets in the back, and some scars on the skin (part II)

And now, part two of the Impromptu Question and Answer Rant. (If you missed the first part, earlier, this will help you catch up.)

6. Anhedonic has never been ARed for any reason, and--somehow--equates being mentioned on the wee blog as having been reported for abuse or misconduct to the Lindens.

(Answer: Now you're just high. ...Pardon me, let me take that back. I think Anhedonic is getting ever so slightly overwrought by these emotional proceedings. While I don't have an open-door policy on which residents I report for abuse or other issues, neither have I made a secret of ARing certain people now and again. But, pushing beyond that--because I truly think it's not relevant--there are two problems with this statement. First, I have no way of knowing whether it's true or not. And no one else does, either, including Anhedonic, because the beauty of the AR process is that it's not a problem until Linden Labs verifies it as a problem. Xie could have had a hundred ARs filed on xir that never saw the light of day because the Labs internally decided those ARs were groundless. And, barring that, even if Anhedonic had zero ARs through the Labs themselves, no one on the grid has the right to complain about those designs unless xie deliberately kyped someone else's designs.

(In fact, the only individuals who could complain--namely, Twentieth Century Fox, as the copyright holder of record for the Avatar movie rights--probably don't even have Second Life on the radar, and that's likely a good thing for everyone involved. How'ver, to make this point clear--if Anhedonic did receive a cease and desist order from Twentieth Century Fox, it still wouldn't be an abuse report. This point, I feel, is null and void.)

7. The term 'Na'vi' is a fair use term, and is not under copyright by the U.S. Library of Congress.

b>(Answer: This was hard to track down, but let me take this sidewise because the explanation is important. According to the Publishing Law Center, while specific individual characters in a copyrighted--or trademarked--work might not be specifically mentioned by name or by character description in the application for copyright [or trademark], the fact that they originate within a protected work means they are also copyrighted. Which is fine, I suppose, for copyright provisions, as those will expire only seventy years after the date of James Cameron's death. I suppose Anhedonic could gleefully wait it out.

(Unfortunately, we're also dealing with trademark law, here. Avatar as a movie, and all intellectual properties rising out of that work , which would include the characters, character designs, plus specific character and place names--are trademarked. And--is everyone paying attention?--Trademarks never expire. Ever. As long as the fees are paid, the trademark exists.

(So no, I did not find anything that specifically states without question that "Na'vi" is a copyrighted term--through the U.S. Library of Congress or elsewhere. How'ver, that doesn't matter, because Avatar is both copyrighted and trademarked, and the provisions of those laws mean that everything connected to Avatar--"Na'vi", "Neytiri", "Pandora", and all the other character and place names, and the appearance of all characters--is copyrighted, as well as being protected by trademark. So, Anhedonic--and everyone else--is in violation of Twentieth Century Fox's trademark provisions for Avatar as well as infringing Twentieth Century Fox's copyright provisions on the film.

(And this is just a fun read. But I digress.)

8. If I--or, one assumes, any casual observer--looks at Anhedonic's skins, and compare them to those from the film Avatar, I would find they are not the same. Thus, they are not infringing material.

(Answer: This is a specious argument. By the provisions of both trademark and copyright law, it doesn't matter if I give it away or sell it; if it looks enough like the original, that an observer might conceivably be misled, I am most likely in violation of these laws, once it reaches the court level. [I'm still in violation, it just has to go to court to become specific case law.] The same holds true for any other designer--Anhedonic included.

(But let's carry this out, since this seems to be a major point of contention. And, since preservation of anonymity is so desired, this is pretty much a scattershot grouping of many skins on the grid, currently, contrasted with shots from the film Avatar for comparison. One or more of these shots will be Anhedonic's; the rest aren't.

A comparison of SL-based Na'vi versus film Na'vi.

(Now. This is here just for the surface comparison. If you want to see it larger, feel free to click the smaller version, but trust me on this--it won't be that much clearer. What this cobble was intended to convey is that, by and large, people are doing a really great job at reproducing Na'vi avatars on Second Life. This is part of the problem. Any of these, when casually skimmed by a non-invested party, could be reasonably assumed to be at least bending, if not actually violating, legal trademark--in this case, Twentieth Century Fox's legal trademark.

(Is every single line reproduced accurately, each hide pattern, glow and dapple marked in place, on all of these, and all the others I didn't include? No, of course not. But it doesn't have to be. Avatar as a movie is both under copyright and trademark. This means that everything in the movie is, in part and whole, also under copyright and trademark

(Furthermore, even if they were radically different in look--which they're not--Anhedonic and all the others are confusing the issue by using search terms, and/or outright naming their items, as "Na'vi", or "Complete Avatar Avatars" or using ancillary terms like "Pandora", the name of the world the Na'vi live on in the film. A reasonable case could be made without even trying hard, here, that by appropriating trademarked terms and pairing it with trademarked appearance--aka, Na'vi skins for Second Life--there is at least trademark dilution going on, if not outright violation. This point? Is absolutely, utterly wrong.)

9. The word 'Avatar' is not copyrighted as a sole term.

(Answer: No, it's not. How'ver, the word "Avatar" used in conjunction with blue-skinned cat people, the word Na'vi, the word "Pandora", or use of the full phrase "James Cameron's Avatar" under trademark. And remember, trademark protections never go away as long as someone's paying for them. There are businesses in England that have been under trademark for more than three hundred years. There are businesses in Eastern Europe that have been in continual operation, with the same protected logo design, since the 1600s, even though trademark law has changed radically since then, domestically and internationally.

(Besides which, Anhedonic rarely uses "Avatar" anyway. Xie tends to use "Na'vi". And "Na'vi" is both a copyrighted and a trademarked term; in casual conversation, there are no penalties, but if a business seeks to use the term without obtaining redistribution permissions from Twentieth Century Fox, that is both trademark violation and copyright infringement.)

Essentially, what all this in these two entries boil down to, short form: Anhedonic, I've removed your name from That Entry after this entry publishes. I don't expect you to read through both of these, though, to find out, because I don't think you're that bright. And I can say that with a straight face because you honestly thought that merely spitting out buzzwords like 'fair use' and 'fan art' would convince me you were in the right.

You claim you did your homework before doing this? Then you got an F on that assignment once you handed it in, didn't you? Let's go over this again for the slow kids:
  • If you make a striped blue-skinned alien and call it "Na'vi" or write on the ad or in the Marketplace blurb that it's "inspired by" are violating Twentieth Century Fox's trademark, and infringing their content (less so in the latter category, though even the innocuous phrase "inspired by" got one designer banned from SL for over a week).
  • The fact that you haven't been ARed or had your Marketplace listings bounced means nothing. Linden Labs is fighting, very hard, to retain its 'safe harbor' status currently. What that means is that someone else has to notice and tell them, 'Hey, that's mine! Stop them from selling that!" At which point, they can officially notice, and send out reprimands and/or remove the content.
  • 'Fair use' doesn't apply in the least here; copyright law, while at times subjective and needlessly overwritten, only truly applies when the work in question is intended for educational purposes, constructive critique or review, or extended scholarship. None of these apply in your case.
Everyone on the same page now? Grand. I'm getting on with my life.


turnerBroadcasting said...

You're wrong. Fair use applies when one has excerpted a work. If the digital creation is different in any substantial way, then it is an excerpt.

Case in point: suppose you make kitty people and the stripes and facial are different. Then the blue skin is an excerpt.

Fair use exists so that we, as a society - can discuss, explore and understand the works of art and science before us. Works that may be trademarked exordium et terminus - but that are under first amendment protection - open to satire, examination, and intelligent consideration.

Where your legal analysis fails is in precedent law. Educational purpose, constructive critique or review - has not been and will not continue to be the gold standard by which fair use is calculated.

From the United States Patent and Trademark Office:

"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.

I am not commenting on the specifics of the case at hand, nor am I saying that one can copy from any one specific source into SL any such media.

I am going to make a very important point , however - that this is a low-volume, personalized space that does not replicate a broadcast medium in any way shape or form and a creation here does not necessarily imply a transmission elsewhere. I for one will not seek a copyright when I am sketching in my notebook, and neither should you.

And also. Equally as important. In your terms of use and service agreement (TOS) you have already agreed that any data here on SL's server - is owned by SL and not yourself. IMHO that little line item number six out of your TOS agreement needs to be looked at carefully. If in fact widescale copyright infringement is happening, LL is liable.

My view is that it's not.
At least, not really. I would
be wary of saying the guy is in the clear but this entire SL metaverse is little other than a dollhouse, all the people within just playing a game of dolls.

Nothing too big.

Hey. I could be wrong.
PS Did you knock me off your blogroll?

Emilly Orr said...

Answering the last question first, because I might have? I was trying to condense things. It made sense to my brain at the time. :)

Now, closer to point by point.

If the digital creation is different in any substantial way, then it is an excerpt.

Yeah...unless you're billing it as the original work.

Here's the thing. I don't care if a designer makes a Na'vi skin and then calls it an alien cat, or an arborial feline, or a space neko, or whatever...if they're just making the objects and not referencing the movie, they're sliding under that fair use thing.

But these do reference the movie. They use "Na'vi" as a search term. Some of them use "Na'vi" followed by "Pandora" and "Avatar", and that's really the kicker, isn't it? There's not a single chance that's not intended to ride the coattails of a protected work.

Where your legal analysis fails is in precedent law. Educational purpose, constructive critique or review - has not been and will not continue to be the gold standard by which fair use is calculated.

A, I'm not a lawyer, so I'm flailing wildly and I know it. I read a lot and I asked people smarter about IP law and execution than I am, but any flaws remain my own. How'ver, knowing that, there's no one gold standard for either copyright law or trademark violation. There are general indications and I think I'm fairly strong on that a case could be made in this instance--but there aren't a lot of precedent law cases that don't contradict each other.

Emilly Orr said...

(part II, just to keep things to Blogger's comment length)

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.

As far as I've been able to ascertain, this is true. How'ver, trademark law does. Trademark protects any named institution or person, any named place, a whole bunch of things, under the same general commercial mark. That execution of an idea is then batchfiled and any bits of it hold sway.

Use by educational institutions, reviewers, satirists, comedians, social commentators...they can all make fair use claims and be fairly safe. I don't think selling skins--even in a "low-volume, personalized space"--counts as fair use under any of the previously protected areas, though.

If in fact widescale copyright infringement is happening, LL is liable.

And, up until the TOS was changed, there was wording before and after that clause that obscured it. Now? It's even murkier, because they both affirm that our creations are our creations, and exert control over their world, and all the items in it.

It would take some doing, and it would be a hard-fought battle--one I personally do not want to see, btw--but a case might be made that since the Labs claim all content under the umbrella of their corporation, that they are in fact liable, and have now lost their "safe harbor" status.