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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