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.
(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"...
is 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" Avatar...you 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.
