Second Life Hairstyle Raises Copyright Question
February 15th, 2007 by Benjamin Duranske
The Second Life Herald recently ran a post about designer ‘Rach Snookums’ who, SLH writer ‘Seola Sassoon’ (also an in-world designer) alleged, “blatantly ripped items from many popular designers” and sold them in-world.
The Second Life Herald post (which incorrectly identifies the alleged infringer’s avatar as ‘Rach Snookem’) is available here.
Virtually Blind contacted ‘Snookums,’ who admitted that “most of the design” for one hairstyle line (which she has since pulled from inventory) “was based on another designer.”
She said that she did not intend to violate anyone’s intellectual property rights, and that everything she currently sells is designed by herself and her partner. ‘Snookums’ also pointed out that many hairstyles, shoes, and clothing designs in Second Life are very similar. “I guess at the time I didn’t see the problem of modeling off another design,” ‘Snookums’ said.
According to ‘Snookums,’ the potentially infringing designs were removed from her inventory “about a day, at the most” after she started receiving complaints.
The SLH post also claimed that ‘Snookums’ banned designers from her shop to keep them from seeing her designs, but ‘Snookums’ said that she started banning people from her store only after posts about the controversy began appearing on the web. According to ‘Snookums,’ after the story broke, she was banned from many designers’ parcels, and about sixty Sellers Guild members came to her shop and were abusive to her customers.
“I didn’t ban people because I was hiding anything,” ‘Snookums’ says. “I got a little defensive and banned people who banned me first, and people who were misbehaving.”
Along with the article, the SLH posted a picture (below right, top image) of an original hairstyle and a ‘Snookums’ design which, the SLH post claimed, used “EXACTLY the same prims [and] same prim count.” (Emphasis in original.)
“Prims” are the basic building blocks that Second Life users put together to make everything from hairstyles to helicopters, so alleging that a designer used exactly the same prims implies that the designer is selling something that is not just similar to the original, but an identical copy.
Because copybots exist in Second Life, and because the extent to which two works are similar is important to copyright law, precision is necessary in allegations like these. (Apparently this wasn’t an issue for the SLH writer, but hey, their tagline is “Always Fairly Unbalanced,” so you can’t say they didn’t warn you.)
The designs do not, in fact, appear to be identical. The prims in the two designs are not exactly the same shapes and are not positioned exactly the same way.
To illustrate this, Virtually Blind highlighted four matching prims from the SLH’s picture of the original and allegedly infringing hairstyles in red, blue, yellow, and green (above right, bottom image). Pay particular attention to the red and blue highlighted prims in each. The two designs are simply not the same.
Identical or not, however, the designs are awfully similar, and ‘Snookums’ admits she based her design on another designer’s work. All that adds up to a potential copyright infringement claim.
Second Life users “retain copyright and other intellectual property rights with respect to Content [they] create in Second Life,” under SL’s Terms of Service, but these rights, of course, only exist “to the extent that [users] have such rights under applicable law.”
So the question is, does real-world copyright law protect a virtual hairstyle?
The first step in this analysis is to forget that we’re talking about a hairstyle. In a virtual world, a hairstyle is no different than a house, a hat, or a hamburger.
In the real world, there aren’t copyright suits over hairstyles for at least two reasons: (1) enforcement would be so expensive and the value of a potential win so low that the question is unlikely to ever make it to a courtroom, and (2) there’s a threshold question as to whether a real-world hairstyle is sufficiently “fixed in a tangible form of expression,” to qualify for protection under US copyright law.
But in a virtual world, avatars’ hairstyles are just as “fixed” as any other user-created content, and mass production of identical hairstyle designs means lawsuits are at least potentially feasible.
Given the facts here, the infringement analysis is fairly straightforward. The Neustel Law Offices, a Fargo, North Dakota IP firm, has made available a nice summary, excerpted below:
There are two basic elements for proving copyright infringement:
- Ownership of the copyright; and
- Unauthorized Copying.
For an infringer to be liable, he must have “copied” the work from the owner of the copyright. If an accused infringer can prove they independently created the accused infringing work, this will be an absolute defense against infringement.
Copying is difficult to prove, so the copyright owner normally has to prove (i) the infringer had access to the work, and (ii) that the two works are substantially similar from the viewpoint of the average observer. If the copyright owner can prove these two things, the burden then shifts to the accused infringer to prove independent creation.
Under this analysis, ‘Snookums’ could be held liable. The original designer owns a copyright in her creations. Because ‘Snookums’ admits to having copied the original designs, no further proof of access and/or substantial similarity of designs is necessary.
The fact that she quickly removed the potentially infringing items from inventory when complaints arose helps limit her exposure, because the designs were not in the marketplace for long. And in reality, it is probably not worth anyone’s time and expense to bring a suit given the short-term nature of the alleged infringement.
‘Snookums’ said she now realizes that designs can infringe even if they are not identical, and said that the controversy “has been a great learning experience.”
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7 Responses to “Second Life Hairstyle Raises Copyright Question”
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If and only if this alleged Snookums quote: “most of the design … was based on another designer.”
is what is meant in your analysis by “admit[ting] to having copied the original designs,”
then I’d have to disagree. Basing a work on another work creates a derivative, not a copy, and a derivative may constitute a new copyrightable wok (http://www.copyright.gov/circs/circ14.html#derivative/). Whereas to copy something in a legal context is to make an exact duplicate, and a copy may not constitute a new copyrightable work. So saying a work is based on another is not to say that the original is being copied.
Based on what else is written in this article, particularly that the two hairstyles are indeed allegedly not identical, I see no admission of copying, nor do I see any copies. What I see is an alleged derivative, and thus the simplified two-part burden for the copyright owner, as outline on that site, would still be applicable:
“(i) the infringer had access to the work, and (ii) that the two works are substantially similar from the viewpoint of the average observer”
Thanks for the link (in the anonymous comment above) and the comment about “copy” vs. “derivative.”
I should have been more precise, but in this context, by “copying” I just meant “based on.” The analysis stands — since ‘Snookums’ admits she based the work on another, there’s no need to prove access/substantial similarity (to prove “copying”) but instead, just substantial similarity (for ultimate infringement).
A good breakdown on this issue appears here.
I wrote a story for this article, but I reproed my comments on the SLH that dealt with this article, please note there are no pictures, but I choose to leave it in for the imagination.
———————————————————–
I’ll start with Snookums quoting ME as the reason for the bannings. That article was written AFTER the bannings. The names go around in Sellers Guild long before people report it on the internet. She was banned as I was writing the article from at least 30 parcels that I had counted. So don’t blame me. Even if I hadn’t written the story, the bannings already happened so it’s got nothing to do with my story. Sellers are very protective and pass that info quite freely. Dominik even posted in the story that he was banned from there after banning her from Gurlywood. His name was already on that list as of the time, since I obviously referenced it IN the story.
She’s laying quite the heavy blame on that story. Not to mention that people have come to me after the story and said she was blaming me for this all happening to her.
She actually lied in her own quotes for Ben’s story. I’m surprised he didn’t pick it up.
Per the article:
“”””According to ‘Snookums,’ after the story broke, she was banned from many designers’ parcels, and about sixty Sellers Guild members came to her shop and were abusive to her customers.””””
“”””The SLH post also claimed that ‘Snookums’ banned designers from her shop to keep them from seeing her designs”””
“”””‘Snookums’ said that she started banning people from her store only after posts””””
K, so she was banned after the story, which is why she banned others before the story? Which I reported on in the story? Maybe I can see the future? I should start a psychic hotline.
I don’t know about other people reading this, but it certainly sounds like track covering to me. The whole ‘I did it because she wrote on it’ banning thing is certainly fishy enough, especially since it was in the story I wrote in the first place. However, if you are trying to prove innocence, why are you not inviting these designers in to see for themselves instead of banning them?
As for banning the artists from seeing her work, I got reports from the names on the ban lists that they hadn’t even spoken to her and wanted to see for themselves and found out they were banned. Most of the people I spoke with, are very trustworthy and are only concerned about their products. It’s her word against their’s as far as I’m concerned, but I tend to believe a throng of people over a designer with ‘questionable’ products.
Yours truly, also had nothing to do with Seller’s Guild members coming to her shop. That was already in progress before the story was published, I also noted in my writing that seller’s were meeting up. Another future foretold!
Per the article mentioned:
“””Virtually Blind contacted ‘Snookums,’ who admitted that “most of the design” for one hairstyle line (which she has since pulled from inventory) “was based on another designer.”””
Most of the design, the only thing not copied is the texture itself. Secondly, this guy has ZERO clue how textures or prims work, if this is his basis to show they aren’t the same.
Per the article mentioned:
“”"To illustrate this, Virtually Blind highlighted four matching prims from the SLH’s picture of the original and allegedly infringing hairstyles in red, blue, yellow, and green in the image to the left. Pay particular attention to the red and blue highlighted prims in each. The two designs are simply not the same.”"”
Let’s apply this method of proving different to a prim I’ve created.
These two prims are EXACTLY the same.
Now here, I’ve added a texture for a simple thong.
Now here, I’ve added a pretty set of colors to the picture in Photoshop.
As you can see it looks totally different, all because of the texture I applied that has transparency. The same prim, same prim size. That little color trick he did is useless in proving a difference. You can see even there, that the coloring didn’t even pick up the ends of the thong texture.
Now imagine creating tons of prims, contorting them to a finished design and having someone else try to sell that.
I’ve also taken the pic and laid the designs over each other. First, on the right is an overlay with Babe Too more transparent, the second is an overlay of Alluring more transparent. Not color coated in Photoshop. Take into account also that Babe Too is rotated slightly more clockwise and is a touch larger, which could be due to distance from the camera or size used, since Gurl 6 provides 3 different sizes for each wig.
He did this in apparently in with Photoshop (or similar program) which takes zero account for transparency in the ends of the prims. Simply throwing some color on a picture does absolutely nothing in the way of actual prim sizes or count. It’s well known, Gurl 6′s designs have transparencies at the end of the prim to help give a textured streched hair look. So taking a picture and editing it in photoshop isn’t exactly a smart thing to do.
If this were a true picture of Gurl 6 wigs, not once does it ever look so scraggly at the ends, which is further proof there’s missing transparency in the picture, that cannot be picked up cleanly by the method he used.
Either way, for someone to say how hasty and shoddy the story was, he obviously didn’t do too great a job himself. *ring ring* Hiya pot! This is kettle! Did you hear? You’re black! *click*
I stand by the original report. In spite of the admittedly small differences between the designs (which, I maintain, the screenshot comparison makes clear, textures aside), you have to realize that I actually did conclude that, a) there was copying here, and b) though the value would be minimal, there’s a valid copyright claim against ‘Rach Snookums’ here too.
The point, which seems to have been missed in the comment above, is that precise *duplication* of a design is not necessary to establish copyright infringement.
If however (as I suspect is the case) ‘Seola Sassoon’ is merely concerned about the article assigning insufficient blame to a competing designer who got caught with her hand in the intellectual property cookie jar, a couple of points are worth considering. First, getting to the bottom of the copying question wasn’t really my goal, it was just part of the legal analysis I was running. Second, VB actually did secure a quote from the designer admitting that she based her design on the original in question, which is more than the original article (for which she was not contacted) managed. Finally, she was pretty thoroughly tarred and feathered by the Sellers Guild, she seemed genuinely sorry about the whole thing, and she seemed to have mended her ways by the time I ran the article. So I was convinced, as an objective bystander to all of this, that she recognized her error and would not repeat it — all of which convinced me to run her quotes expressing remorse.
You can choose to stand by your “shoddy reporting” as you wish. You have degraded another author (who DID try to contact Rach and was ignored repeatedly), when you’re own story contradicts itself.
I seriously doubt you were an objective bystander, since you have seemingly taken to throwing around points that I didn’t even address.
I never, at any time, said the Sellers Guild didn’t ‘go after her’. However, I DID say I had NOTHING to do with it, which is what your quotations implied. You so easily love to attack another writer, in which case, further allowed yourself to be sucked in by blaming me for things that happened to her. I stood by an reported as people talked. Should you blame journalists for the war in Iraq, since they wrote on it?
And in fact, you specifically stated that the prims were not identical, whereas I had seen the original creations and you went off a picture.
If that’s your idea of a ‘legal analysis’ I suggest you stick to sympathetic notions toward the guilty, especially since you mention copying, then not copying, then ‘taking an idea’, then how sorry you felt for someone who STOLE designs from other creators.
Tell me, how is it that any intelligent creature could possibly think that copying, even if it wasn’t exact, but admitted, could possibly be an error? That’s like saying, “Oops, sorry I stole your car and tried to sell it, it was an error. I’m sorry.”
Ironically, you still never addressed this own part in your very own story:
“K, so she was banned after the story, which is why she banned others before the story? Which I reported on in the story? Maybe I can see the future? I should start a psychic hotline.”
Amazing what you miss when you only see what you want to see and ignore the rest. Another irony is that you so quickly attempt to point out ‘bias’, yet you ooze of it.
Thanks for your comments, ‘Seola.’ I still think you’re missing the point here, but I definitely appreciate your passion, all these months later. The issue (copyright infringement) is obviously pretty important to the design community, and your posts serve as a good reminder of how much intellectual property issues really do matter to people who participate in virtual worlds.
I don’t really know how else to explain it: this isn’t supposed to be an expose on a scandal, it’s just an exploration of a narrow bit of copyright law. The parts of the story you are concerned about are fairly tangential to the reason people read the article — which appears, recall, on a site about legal issues — and the reason that I wrote it.
My guess? You’re just bitter that I criticized your story for getting the subject’s name wrong and failing to interview her, but that’s a risk you run when you publish. You now say you tried to contact her, but since you didn’t say that in the original article — which you’d have obviously been motivated to do — your current claim lacks credibility.
Of course, since I’m being critical of your reporting, you should — and you clearly do — feel comfortable criticizing mine.
Which brings us to your many angry points and accusations. I guess you’re welcome to the last word here. I just don’t care enough about this little spat between designers (what, now, three months later?) to try to figure out exactly what you’re saying happened or why you think it matters so much. I will say this though: I’d never heard of you or this designer before I wrote the piece, I haven’t spoken to you or her since, and I don’t believe I know anyone in the design community on even a first name basis, so ‘bias’ is a pretty silly claim.
I’m not likely to respond to you again, but feel free to post if you still feel you have something to say. That’s what the comments are for!
Your defense is that I’m bitter over a name issue? You call me out on writing so much later than the fact, yet there’s several weeks between my posts and yours? You responded several months after the fact. What makes you so different? Hypocrisy at it’s best.
To put this short and sweet:
You didn’t interview anyone but the offender, and didn’t experience what I saw firsthand. You photoshopped a picture, and you never ever saw the prims up close and personal. A writer doesn’t need the side of the ‘criminal’ to see with their own eyes and make a write up. I claim bias because you didn’t speak with anyone but a criminal. That’s like believing all those in jail who claim they are innocent, without ever getting the facts. You didn’t see the original, you didn’t see her ‘recreation’, but stand by a photoshopped color method.
You failed to even see what you were being told by the one person you ‘interviewed’ which judging by the story, you approached as sympathetic, and refused to interview others who WERE there and who WERE part of what was going on.
One can only conclude that you’ve taken to attacking on the basis of a name error (ooookay) because there is no stance you can have when presented with legitimate questions about your own piece.
If you had even paid attention to your own interview, you’d realize how many things were wrong with what was said to you. Don’t point out others pitfalls that are non-existant and then have so many errors in your piece.
You can’t answer questions that I’ve asked, because all you’ve done is taken to making absurd comments about my being upset over a name, because there isn’t a defense to what I’ve said.
You may not respond and that’s fine, but there needs to be comments so that when people read this or may come across it down the road from now, they have ALL the information and not just what a contradictory rip off artist says, or take as fact that adding some color shows off actual prims.