Friday, May 11, 2012

some sort of window to your right as he goes left, and you stay right

Yep. Still there.

Still there, too.

Also still there.

And the variant. And another variant.

And a sleeve with Nazi imagery.

In fact, I'm beginning to think a lot of these things are new relists.

Of course, I bet there's hundreds, maybe thousands of other swastika-based items for sale on the Marketplace, right? Right?

...Seven, you say? ...Oh. Just--seven. Well. Okay, then. We move on.

I want to talk a bit (again) about copyright and inspiration. This was from one of my group notices today:
Today’s new releases are Petite versions of your favourite [store name] outfits.
These are [DC] and [KA] set.
Okay; a little iffy, considering the actual outfit names, but still for the most part okay.
They were based on the outfit Kahlan Amnell wore in the Legend of the Seeker TV series, based on the “Sword of Truth” book series by Terry Goodkind.
Not okay.

Now, admittedly, it's a very fine line--we imitate, all of us. We imitate the behavior of those we admire; we imitate what we think of as fashionable or stylish; if we can't find what we want for sale (RL or SL), frequently, if we're crafty enough, we'll make it. Just traipse through Etsy of a day if you want to make this point ring like crystal. (Justin Bieber's huge on Etsy; in slightly less nausea-inducing vein, so are items from the Game of Thrones series and the Hunger Games series, just to name two. And this store doesn't have one single original idea in it.)

It's also tricky to get across, this concept of trademark and copyright dilution. But let's say I make a little Xena doll. I make her as exact as I can (being as I am not a sculptor, just a maker of the occasional soft toy). She has a little kicky pleather skirt, say, and a wee little sword. Is this allowable to do?

If I'm not making it to sell, pretty much anything goes (And if I'm naming her anything but Xena, anything goes. I am allowed reproduction for non-sale items (and by "non-sale" that DOES NOT MEAN freebie offerings on the grid; SO many people get that wrong!); as far as it goes, I am legally allowed in RL to copy, completely, any book I find once;, as long as that copy is for personal use. (I'll even cop to having done that a few times, at least before the cost of copies per page became more expensive than simply buying the book in the first place.) As long as the created item is never offered for sale, I can pretty much coast on my obscurity.

To a certain extent, even making copies for sale can be--while not perfectly legal--ignored, as long as I'm selling items using specific criteria. Those criteria can vary from never doing anything that imitates an existing product (hence, that dilution thing again) for sale by the legal owner, all the way down to not using the logo to "brand" my sales items. So, for instance, if I'm making soft-body Xena and Gabrielle dolls, but never make hard plastic action figures, I might just slip under the radar. I'm not trying to say I'm the copyright holder, or the holder of record for the trademark; I'm not making something that infringes on existing products for sale by the holder of record; and I'm not a large concern with a budget that could buy ads that would bring me to the forefront of said holder of record's attention.

(A notable exception to this are things like Firefly; while FOX Corporation strictly owns the trademark to the product, and thus could land on any maker of Firefly-themed objects like the proverbial ton of bricks, in general, they don't. Why not? Because the creator--Joss Whedon--has said many times that he's for all expressions of the fandom. When the creator and chief writer of a television series states they'll support no challenges personally on a trademark/copyright basis, it's difficult for the actual holder of the trademark--in this case, Fox--to stand up and assertively claim client damage.)

Which is all well and good, if I'm making products for sale on Etsy, or eBay, or even selling at local churches or conventions. There's a slippery slope here, and all fans are on it, but for the most part we're all able to uneasily coexist. Free speech provisions apply to a certain extent in creations of goods for sale, and sometimes this is broadly (I think also wrongly) applied to handcrafted/hand-printed items.

Here's the big difference. Linden Labs is not a public company. And Second Life is not an arena for free speech.

If for any reason, a Linden decides I need to be banned from the grid, I have one chance at appeal. If that doesn't go in my favor, that's it--as many folks have found out previously. I can be stripped of all "rights" to enter Second Life, if the Lindens find me in violation of one of their community standards, or a provision of their community service.

And while in general--as I've said before--copyright infringement is rampant on the grid, for the most part, the Lindens need an actionable complaint. Which is why all Nike and Gucci reproductions pretty much go unchallenged (neither company can be bothered to file complaints), but why Azriel Demain got hit with an eight-day ban for his "inspired by" outfit based on a day suit seen in Bram Stoker's Dracula. At the time I was outraged. (Well, actually, I'm still outraged that there wasn't a better way to settle that particular dispute than threatening both sim ownership and continuation of Demain's business.) Somewhere, at some point, one of the numerous companies who have legal representative rights for that product made the decision to go after an SL maker of goods; thus, the DMCA was filed, and the Lindens complied. Beyond that, I still don't know much more, all these years later.

But therein lies our main problem. What happened to Az should have been a wake-up call that more caution was needed, especially regarding how we name things. The above cited example, for instance. Could this maker have called it something else, and made it not a complete product-tie in to an existing series of books, and now an existing television series? Of course.

(from the media album)

Say I make a leather coat similar to the one James Marsters wore as Spike on Buffy the Vampire Slayer. (He also wore a duster on Angel, yes, but the cut of the coat and the tailoring were different.) Now, there are several different things I could name this coat:
  • I could simply call it a black leather duster. That is the style of coat.
  • I could be cute and name it the James, or (slightly iffier) the Spike. Though it might be better all the way around to name it "William" and slide past direct copyright issues.
  • I could call it a vampire duster. 
  • I could come up with a name completely unrelated to the media property from which I drew inspiration.
Which one of these is right? Technically, all of them. While there was one notable case on the grid of a designer of a white dress named "Marilyn", that used that pose to list the gown, having her entire inventory stripped of all items (whether she made them or not) named "Marilyn", in general the Lindens don't make those mistakes. (They make other mistakes, but we're not talking about those.)

Same thing goes for the Legend of the Seeker (circling back to topic).

(from the media album)

Say you really adored Dahlia's red leather bondage outfit (and really, what's not to love? Plus, girlkissing. That's just fun all around), and you wanted to make your own version. What could you name such an outfit?

  • You could be trite and name it the "Dahlia".
  • You could call it the "Dark Sister", as an oblique nod to the show. 
  • You could call it the Mord-Sith, but you might run afoul of Star Wars legal counsel.
  • Or you could name it something entirely unrelated to the series. 

Again, what's the right answer? Technically all of them, within specified parameters. And on SL, that means separating name from description. If you decide to make the above outfit, the last thing you should do is list where the inspiration came from. I'd generally go that one step further and find some other name for it other than naming it after a character on that particular show. Or if I'm really, really locked in to that particular name, then I'd only use "Kahlan" over "Kahlan Amnell". (And even then, I'd likely muddy the waters by spelling it "Kallan", "Kahla" or "Kathleen" over "Kahlan" directly.)

It's all a matter of degree, and how much time and hassle someone wants to go through. Because keep in mind, anyone who's made any item under copyright hangs under that Damoclean sword of infringement--lift a Warner Brothers property, Warner Brothers could come after you. Make a Christian Dior dress, Dior could fire off a cease-and-desist order. Pinch a Disney possession...well, good luck with that, they have feral and occasionally very evil-minded lawyers--really, you're on your own.

My point with all of this was not to directly single out any one maker, but to give all makers that gentle reminder. If we're not doing our own work, with our own ideas, we take risk of having that work taken away. Don't let that happen.

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