Intellectual property: If it's not nailed down ...
Filed under: Opinion, Second Life
A person who operates under the name Guide Hawk or guidehawk_ltd has been marketing Second Life related goods on eBay by using an array of images taken from other users. But here's the kicker ... he has watermarked these images and defends them as his own! Some examples include Khamindie by Arahan Claveau and an image by Lena Kennedy. Not the least of this person's victims is Linden Lab itself, whose trademark logo is used to promote the products without the "No infringement is intended" notice required of any website or blog that uses the logo which might cause brand confusion.
A simple misunderstanding? Well Lena Kennedy contacted Guide Hawk and by his response it would seem Guide is sticking to his guns. Here is what he had to say:
"I have paid for use of these photos and have express permission from Linden Labs [sic] to post them on my auctions. There is no ownership from the avatar of photos in MMORG games, as there is no ownership from the photographer as well. I found this out from contacting Linden Labs[sic] while searching for good photos to use in my auction. This is true with all MMORG's as the user gives up rights of ownership and intellectual property when they make something in the game. The person taking the photo is technically breaking copyright if they use it for financial gain without permission from the makers of the game. "
I have yet to hear how Guide paid for these images but I'm going to take a guess that he paid his regular monthly usage fee to Linden Lab and now believes that fee buys him ownership of any IP that comes out of the platform.
But Guide is fatally mistaken on a number of other fronts as well. There is some debate as to whether a photo of an avatar becomes the intellectual property of the photographer or the avatar. There is some precedent for this debate in the Anshe Chung incident where she ultimately retracted her DMCA takedown notices on the grounds that the photographers of her griefing did indeed own the rights to the footage. That incident, however, was about "fair use" rather than the commercial use of other people's avatars.
But none of this is even remotely relevant here because Guide was not the photographer OR the avatar! He had nothing to do with the entire creative process. All he did was lift other people's photography and watermarked the work as his own.
He also states that all MMORG users give up the rights of ownership and IP when they make something in the game. Well, I'll chalk this up to Guide being unfamiliar with the Second Life Terms of Service. SL is famous for being one of the only virtual environments where users retain their IP rights. It would seem Guide is clearly unaware of this.
Guide has many similar auctions and the number of copyright violations is not yet known. Massively readers may want to go check it out to see if their own images are being used! Despite numerous complaints eBay has yet to remove the copyright violations from their website which means the next step will likely be a DMCA notice to Guide Hawk and to eBay. I would also expect some action from Linden Lab's legal department regarding the improper use of their logo.
In the mean time, watermark your photos! And if you can ... nail them down.
(Thanks to Cristiano Midnight and Joshua Nightshade for the heads up!)
_thumbnail.jpg "Aion Beta: Asmodian Ascension Quest")
Reader Comments (Page 1 of 1)
Joshua Nightshade said on 7:23PM 11-10-2007
Thank you for commenting on this Aimee.
I couldn't even begin to explain the various ways this guy's arguments are off the mark. He certainly didn't purchase any "rights" to any images from LL and given that his ebay auctions consist of guides that hypothetically take advantage of exploits to hack and cheat SL I strongly doubt they gave any sort of approval to what he's doing as well.
I've emailed the relevant information to Robin Harper/Linden and hopefully at the very least they'll make it clear that his use of their trademark on auctions designed to make it look like LL has endorsed what he's selling is a violation of copyright/trademark law.
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amazed said on 9:07PM 11-10-2007
If you own an ebay account you can report his items. I strongly suggest every ebay member report them as copyright infringements. You can only report 10 of them at a time unfortunately. So you have to do two reports. Use the 'report this item' at the bottom of one of the listings and copy all of the item numbers. I have reported all of his listings.
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Moo Money said on 9:34PM 11-10-2007
When you weren't looking, I stole this post. Yep, it's mine now. You should watch your posts more carefully...
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Nexeus Fatale said on 10:25PM 11-10-2007
There's another thing here guys that maybe I'm just missing but... flickr has this option of having your images be protected under the creative commons (CC) - the two people who have their images stolen I do not see any creative commons assignments on them - which could lead into someone thinking that they can steal them and use them - one advise is that regardless of the protections under SL... make sure that your images are protected visibly by the CC - that at least gives you some additional non SL ground to work on.
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Joshua Nightshade said on 12:17AM 11-11-2007
Nexeus;
Flickr only allows you to download the original image if a CC license is applied.
If you click on "all sizes" you can see the various formats available. On Arahan's photo the original image is available, meaning a license is on it.
All rights reserved is also beneath the image itself.
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Eric Rice said on 1:21AM 11-11-2007
If you own the images and can prove ownership, you can file a report with VERO (@ebay.com), and eBay will terminate the auction. This is a very common practice, sadly.
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Jonathan Bailey said on 2:28AM 11-11-2007
What you have here is a pretty tricky and untested legal situation. Let me try and give a rundown.
Generally, when dealing with matters of photography, the copyright rests in the hands of the one holding the camera, be it real or virtual. If I take a photo, even if it is of a model, I have copyright of the image (we won't get into misappropriation of image or privacy issues here). If I am under the employ of an agency, then it is a work for hire and they get the rights.
The exception is when you're taking a photograph of a copyrighted work. For example, if you took a photo of a painting that wasn't in the public domain, your photo would be a derivative work of the original and would be an infringement unto itself unless a fair use argument could be made.
If you do it with permission of the copyright holder, the original rightsholder still has copyright over the painting and you would have copyright over your photo apart from the painting.
So, in this type of situation, you have the potential for a work where two or more people have a copyright interest in a work. If we assume that the avatar is copyrighted, which is hard to say for a number of reasons and the photo was taken without permission, then the photos and all copies of it are violations of the original avatar. If avatar copyright is assumed and the photo is taken with permission, then the photographer holds the largest interest in the rights. If we don't assume avatar copyright, the photographer holds all of the rights.
This doesn't touch on an implied license, which might be assumed in a world such as second life and might allow photography of copyrighted works, nor does it look into the terms of service for participating in second life, which can say almost anything it wants on the topic.
If you have a headache, just imagine you're a judge trying to sort through these issues. This is why I don't become an attorney.
Anyway, I would encourage either the rightsholder or the avatar to file a complaint through Ebay's VeRO program. Failing that, consider filing DMCA notices against Ebay.
It certainly beats making this the test case for all of the above issues.
Hope that this helps clarify things (or not).
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Ichi said on 3:32AM 11-11-2007
The two flickr images linked to above are marked: © All rights reserved. End of story.
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Joshua Nightshade said on 4:17AM 11-11-2007
@Jonathan Bailey
In these instances the photos were all "modeling" shots either taken by the avatar in question of themselves or with permission of the subject. Even from the photos themselves you can tell they were taken with cooperation of the subject. So that end isn't at play here.
Anshe Chung tried to have several news outfits remove photos of her at a virtual press conference that was "attacked" by griefers. The nature of the attack was embarrassing as were the photos and she tried to strong-arm people into not posting photos of it by frivolous DMCA notices. She gave this up when it became pretty apparent that these claims wouldn't stand up whatsoever. While the LL ToS grants content creators IP over what they make (be it in-world items or photography) it also grants LL and other residents a limited derivative license that inadvertently made any photos taken of Anshe Chung in a "public" virtual place fair use whether or not her avatar itself was potentially something that could be copywritten. LL's legal team likened it to taking a photo of a street and catching someone in the frame.
I don't think there's much substance here for a test case. The framework is already pretty established and the rights to the artwork belongs to those who created the photos, not this loser and his frivolous ebay listings.
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Pavig Lok said on 6:22AM 11-11-2007
This is not fair use in any sense that can be legally applied. For the use of works in the public (but not the public domain) copyright can only be claimed if due diligence has been maintained in ensuring the originators of the work have been contacted for permission to distribute.
The linden tos indemnifies them from getting stuck in the middle of copyright claims over the distribution of material created in world but does NOT imply that no copyright exists. It is typical of any new media EULAs in that it is hostile in establishing no fault on the part of LL for infringement by others - this is due to the way the law is still banging out the difference between a publisher and a service provider (puting companies like LL in dangerous legal waters simply for facilitating the possible "publishing" of illegal content.)
Outside of SL however things become a lot more simple. Taking uncredited material without following up copyright and publishing it for profit without aproval of the originators is just bad business. There is no fair use provision for this kind of activity with works that don't have an explicit permission through entry into the public domain, expired copyrights or other forms of licensing. It's plain illegal anywhere with a modern copyright law - it's just not fair use.
In the case of photography the copyright is owned by the photographer unless further provisions are entered into. Though other companies which may be involved in distribution of this material (such as LL) acquire a license to distribute the material, this is not a revocation of copyright by the originator - ownership of the intelectual property can only be transfered with the permission of the original copyright owner. It is a publishing license only.
This fellow seems to have no idea how copyright works at all. I'd like to see more folks using CC licensing on their materials so they've got a leg to stand on when it comes to this kind of rampant opportunism. The only reason anyone gets away with it is due to how clueless we all are on these issues.
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Arahan Claveau said on 11:45AM 11-11-2007
Hi folks,
Thank you for writing about this Aimee, this and Josh's posts are helping enormously.
I did have a Creative Commons license applied to all my photos which meant they could be downloaded at any size but I got nervous after this incident and have reverted to the default "all rights reserved" and limited download to friends only. I hate doing this though because a lot of the photos look so much better larger.
Not sure what to do really, do I delete my entire Flickr account and any other images I have online or perhaps watermark them much more visibly? I love sharing my work and getting feedback from people but if it is just going to be stolen and passed off as someone elses I dunno if it's worth it.
Anyway, thanks again everyone for any help.
-Arahan-
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Tealc Dagger said on 1:34PM 11-11-2007
It has just gotten worse. One of the auctions uses a picture I remember seeing in a Popular Science article on Second Life. I am not quite sure who owns the image, but if it is Popular Science, I highly doubt that he obtained permission to use it.
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Daman Tenk said on 7:12AM 11-12-2007
After reading this, I now ensure everything I release falls under "Attribute, Non-Commercial, Share-Alike Creative Commons" License.
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thaumata strangelove said on 9:34AM 11-12-2007
What people need to understand about CC Licenses is that they don't mean FREE. There are at least six license to choose from, and they each have different agreements on what must be done to use that work. A CC License is different from Public Domain. However, even if you choose a CC-BY license - the least restrictive available - when someone else uses that work (and they can, with that designation) they MUST give a link back to you or attribute you work in the manner you specify.
CC or not CC, there is never any reason that someone like this guy should be able to nick your photos and claim them as his own. It's simply not allowed, the same way as it's not allowed with a more traditional copyright. I'd continue writing letters and get him shut out of business.
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Arahan Claveau said on 5:24PM 11-12-2007
A CC license doesn't make any difference to people like this guy and unfortunately on Flickr if you apply a CC to your photos anyone can view and download the larger sizes. I really don't know what to do for the best, maybe just limit selected images I want to protect.
-Arahan-
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Arahan Claveau said on 11:42PM 11-12-2007
I just sent this guidehawk person a message on ebay. Joshua Nightshade kindly wrote a letter for me and I'm copying it here, with his permission, so anyone else that may be affected can use it. Unfortunately ebay has a 1000 character limit on messages so we were forced to condense it to make it fit, here is the one I sent, followed by the original, longer version -
I've been made aware that you are using my image(s) for your eBay auctions. I was not contacted for permission to use my work commercially and the image(s) are being used without attribution, consequently you are in violation of the U.S DMCA and general U.S copyright law. Section 3.2 of the SL ToS states "You retain copyright and other intellectual property rights with respect to Content you create in Second Life, to the extent that you have such rights under applicable law." Ergo the images I host on Flickr ([url]www.flickr.com/photos/________[/url]) are my intellectual property. All images have a CC license and copyright notice. Please respond within ten days with proof that all of my images have been removed from your eBay auctions and any other locations, as well as your assurances that you will not use any of my work without prior consent, or I will have no choice but to report all infringing auctions to eBay's VERO department and contact Linden Lab about your TM violations.
______
I have been made aware that you are using one or more images I own for your Second Life eBay auctions. As I was not contacted for permission to use these images commercially and the images themselves are being used without attribution, you're in violation of the United States DMCA and general United States copyright law.
Section 3.2 of the SL ToS says, "You retain copyright and other intellectual property rights with respect to Content you create in Second Life, to the extent that you have such rights under applicable law." Ergo the images I have hosted on my flickr account at [url]www.flickr.com/photos/____________[/url] are my intellectual property. All images had a CC license and copyright notice which you blatantly disregarded.
Please respond within ten days with proof that all of my images were removed from your eBay auctions, Photobucket account and any additional location as well as your assurances that you will not use any of my content without written permission or I will have no choice but to report all infringing auctions to eBay's VERO department and contact Linden Lab about your trademark violations.
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