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Copyright accusations between Second Life designers occur on what seems like a weekly basis. 'Bax Coen' Boots in Second LifeThe legal analysis is always the same, so VB doesn’t typically cover them. This week’s spat (via the SLH) is notable, however, as it reveals that Linden Lab is choosing not to do Digital Millennium Copyright Act “takedowns” based on accusations of copyright infringement between in-world clothing designers.

The designers involved in this dust-up are ‘Panjomy Ames’ and ‘Bax Coen’ (SLURLs). The design at issue is a pair of boots with three strands of decorative cord tied below the knee. ‘Ames’ did the “Orange Devil” design pictured right, and ‘Coen’ did the “Sand Suede” design pictured below. Both filed DMCA takedown notices, and, according to the Herald article, both have been told that Linden Lab will not be taking any action.

Legal Analysis of Copyrights in Real and Virtual Clothing

In most, if not all jurisdictions, you can’t copyright real-world clothing designs (via Expert Business Source). This is because articles of clothing (like teapots, hammers, and tires) are considered “useful articles.” There are several public policy justifications for this, but the primary one is that the public has an interest in using useful articles that supersedes designers’ interest in preventing copying. Designers hate this, because they think of what they are doing as artistic expression and just as worthy of protection as paintings and poems, but that is not the way the law sees it.

Notably, the reason you can’t copyright articles of clothing is not because (as people often say) everything has already been done in clothing and innovation is difficult. It is simply because clothing is classified as a useful article.

'Panjomy Ames' Boots in Second LifeBut here’s where it gets tricky, and where there is no solid answer yet. Nobody knows whether articles of clothing that exist solely in the virtual world are “useful articles” or not. No court has said so, and there are good arguments both ways.

The Argument Against Allowing Designers to Copyright Virtual Clothing

The argument against allowing copyrights in virtual clothing is that a dress in the virtual world is just as much a “useful article” as a dress in the real world. Recall that the theory behind the prohibition against copyrights in articles of clothing as “useful articles” in the real world is that the public’s need to use items that are useful (rather than decorative) outweighs the policy justifications for protecting the design. What makes clothing a “useful article?” In the real world, it keeps us warm. And in virtual worlds? It keeps Club Penguin from looking like a cold, aquatic, Red Light Center. That’s not a bad argument.

The Argument For Allowing Designers to Copyright Virtual Clothing

On the other hand, the argument for copyright protection of clothing sounds pretty good too. People who want copyrights in virtual clothing will argue that the analogy that should be applied isn’t to real clothing, but to artistic renderings of real clothing. Certainly, paintings and drawings of articles of clothing are copyrightable, so why shouldn’t a CGI image of an article of clothing be copyrightable too? Not a bad argument either.


I’d take either side of this one in litigation, but I suspect that in the long run, virtual articles of clothing will end up being considered useful articles for roughly the same public policy reasons that real articles of clothing are — we really don’t want people, or avatars, to be naked all the time. Until this is decided one way or the other, however, companies that run free-form virtual worlds (like Linden Lab) will have to decide how they want to approach this issue.

As reported in the SLH, Linden Lab has declined to do DMCA takedowns in this case. I would guess that doesn’t reflect a case-by-case decision about these particular boots, but a general policy regarding disputes over copyright claims in virtual clothing. The downside to refusing to do takedowns is fairly minimal: Linden Lab is choosing not to avail itself of the DMCA’s “safe harbor” provision for any claims that may arise from these disputes. But considering that (a) this area of law is unsettled, (b) there is a reasonable argument that avatar clothing is not copyrightable anyway, and (c) the monetary value of a lawsuit or arbitration claim would be insignificant to Linden Lab, it seems like a reasonable business risk that allows Linden Lab to maintain some distance from these disputes and avoid committing resources that are better used elsewhere.

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12 Responses to “Boot Design Copyright Accusation in Second Life Highlights Linden Lab DMCA Policy”

  1. on 02 Oct 2007 at 2:31 pmMatt Mihaly

    You wrote:

    we really don’t want people, or avatars, to be naked all the time.

    That’s kind of a straw man. The only reason that avatars would be naked is if the designers chose to make them so. This is considerably different from real-life where people are, fundamentally, naked until they put on clothes.


  2. on 02 Oct 2007 at 2:47 pmBenjamin Duranske

    Yeah, it’s somewhat of a straw-man, but a lot of law gets justified that way. If a judge is looking for a reason to deny a copyright on a virtual boot, my guess is this is where he or she will go (on the theory that people could sue designers who made avatars with clothing otherwise).

    What I’m trying to get at (albeit somewhat facetiously) there is that the copyright system is explicitly not designed to grant patent-type rights, and that’s where a “copyright” on useful items becomes a big problem. If it is “useful” you have to go try to get a patent on it, and there’s a fair bit of prior art out there.

    If somebody did have a copyright on a boot design, then, theoretically, they could sue anyone who made sufficiently similar boots. And there’s just only so many ways to make a boot.

    What defines a boot?

    “Well, it’s foot shaped, has a heel and a toe, and goes up about so far. And, uh, this one is orange. And this other one has tassels.”

    My guess is that if you applied the “substantial similarity” test to virtual boots, you’d probably only have maybe fifty or a hundred people authorized to make digital boots for the remainder of their life, plus seventy years. If you applied it to virtual tee-shirt designs (shapes) you’re probably giving that monopoly to two or three guys, tops. I’m guessing that a judge won’t let that happen.

  3. on 02 Oct 2007 at 7:47 pmJessica Holyoke

    I think if you really wanted to, you could also make the argument of scenes au faire (if I’m spelling it right). The argument that you can’t copyright a portion of a story that involves two families fighting over their children falling in love with each other or a story about being questioned in police lock up with one officer taking a very hard lined stance and the other officer taking a nicer, friendlier stance.

    I also seem to remember a case when Harvey Comics sued Colombia Pictures because the slashed through ghost logo for Ghostbusters looked too much like Casper’s brothers from Casper the Friendly Ghost. The judge ruled that there are only so many ways that you can draw a funny ghost.

    The boot uppers could be considered like those two examples. There are only so many ways that the boot uppers could be made.

    I wish whoever wrote that article on the Herald would have mentioned that there.

  4. on 03 Oct 2007 at 9:52 amBob Cumbow

    Since the overall design of the boot is functional, it’s not protectable. The “orange devil” ornamentation is protectable, but that part wasn’t copied. So it all comes down to the three strands of cord–which it seems to me is arguably trade dress rather than copyright-protected design, though it could be either or both. Now the question is, do the cord ties serve a useful function (such as to hold the boot up or to bind it to the calf to keep it from flopping around)? If so, then they aren’t protectable–by copyright or trade dress. But if they are purely decorative, they might be covered by design copyright, if they aren’t considered too simple or basic to be covered by copyright. But if they are source-identifying (think Adidas’s stripes), then they might be protected as trade dress; that would depend on whether the original designer can show that people see those strands of cord as identifying the boots as the work of that specific designer.

  5. on 03 Oct 2007 at 11:28 amStroker

    I always get a kick out of “Monday Morning Quarterback” assesments of copyrighting virtual products. There are several issues that everyone seem to overlook.

    Most larger platforms like Second Life or YouTube for instance, lack the resorces to properly address copyright infringement. Considering the terrabytes of user-created content that resides on these databases, an apathetic eye typically relegates these scenarios to “Resident vs Resident” or “Corporation vs Infringer”

    What recourse do content providers have when an exploit or bug allows for unlimited duplication of ones creation? How would YOU feel if you spent months creating a product that could be readily duplicated in a matter of moments by a less than scrupulous opportunist? Particularly when you appeal to the platform developers using the only means available to you (DMCA for instance) and nothing is done about it because it is considered a “Resident vs Resident” issue? At what point do you throw in the towel? Notwithsatnding the “haxxor” mentality that seems to be prevelant on the web. Or the “If it’s streamed to me, I own it” genre. Google “Second Life Cheats” and see what comes up.

    Unless you were a designer, specifically in Second Life, you wouldnt know that most footwear contain a “Walk Replacement” This is a script that utilizes a custom animation to give a specific gait when activated. Many of these creations also contain .wav files that mimic the sound of footsteps. How can one make the comparison to “Useful Tool” in this instance?
    If I we able to produce real life boots that would walk for you and play music simultaeneously, you can bet I would apply for a copyright!

    Personally, I believe the overwhelming popularity of Virtual Worlds is directly attributable to the ability to express ones creativity with real time relevance. Every platform I have ever been involved with has some form of economy that rewards the time and talent of graphic designers, programmers, artists and collectors. Whether it be an integral monetary system or third party sites such as eBay. Stale and static environments capture the attention of todays enthusiasts for about a nanosecond. If nothing changes, nothing changes.

    I am appalled at the hypocrisy of developers that encourage user-created content to attract new members and bolster their bottom line, yet turn a blind eye to the abuse of that content. Comparitively, Blizzard the creators of Worlds of Warcraft, spends hundreds of thousands of dollars annually to provide content created by their staff to entice and retain memberships. Create a “bot” that mines gold, or figure out an exploit to mass produce a “Crystal Axe”. You will be ip banned quicker than Microsoft releases security patches for Vista. These economies are fragile and represent millions of real dollars annually. Someone MUST accept the responsibility and liability to protect them. Any volunteers?

    Blizzard, Worlds of Warcraft, Microsoft and Vista are all copyrighted by the way.

    If there are no real life consequences for these behaviors where is the disincentive? Particularly when there is a financial reward involved coupled with the guise of anonymity. Federal law requires that a complaint addressing copyright infringement be prepared referencing a valid copyright registration. I am not an advocate of torte litigation by any means. One must weigh their individual financial situation against potential income and the cost of a lawsuit. Personally I would write off an infringement of a product or service that didnt produce a substantial return. But, who am I to say the value someone would place on a creation that took weeks or even months to produce? I can definitely tell you how it feels to see it being reproduced or replicated en masse. It is akin to coming home to discover that you have been vicitimized by a burlar. You are angered and want immediate retribution.

    I am a successful designer, do my efforts not have a value? I rely upon developers and programmers to provide a stable environment to ply my wares. The relationships are symbiotic. The talent of many like myself attract residents, who in turn purchase memberships. Do we not have an obligation to be supportive of each other? Unfortunately, I cannot press a button and block access to thieves, griefers and their ilk. Should it require a court order to utilize that capability? Who has the unenviable job of arbitrating these isuues? The overloaded developers, or the frustrated residents? Do the prevailing litigants have to be satisfied with the repossesion of a virtual automobile that someone jacked? There are tremendous social and political issues that will define and redefine the impending metaverse. Going forward there will be many such cases that test the culpability of creators, developers and residents.

    My grandfather said never to judge a man until you have walked a mile in his moccasins.

    Or boots, as the case may be.

  6. on 03 Oct 2007 at 3:33 pmc3

    great post stroker. good luck in your case. you may become the larry flint of the metaverse/.//lol is that good or

    reading benjamins comments that “but I suspect that in the long run, virtual articles of clothing will end up being considered useful articles for roughly the same public policy reasons that real articles of clothing are — we really don’t want people, or avatars, to be naked all the time.”

    maybe you should be glad hes not representing you.;)..

    sorry ben, but declaring designer made and distributed images and codes “useful arcticles” basically rips open all good IP law for the last 50 years. And for those of you “who want your Dtv” for free..remember you are what you eat..” and you do get what you pay for…..

    “tools” are increasingly “digital in nature” thus have become the “licensed” products of todays ” tech billionaires”….. why should ” digital entertainment products” be denied the same ability to enrich their creators.?

    Interstingly, we made Disney rich based on creative IP- and strangley disney invested in research for tech,:)
    We now make culturally make yahoo-google-zuckermans-gates, rich–and the funny thing is ive rarely seen any payback from these tech tool ip owners into the arts or humanities of the culture that feeds them. ( Yahoo vs sculpture—- San Jose Arts vs. Silly Valley a few years ago)

    ….in fact they only seem to profit –youtube /google– getting something– ad revenues=investors, from nothing..– free peoples work… something the old media- entertainment companies rarely ever did— even ABC gives the stupid cat video owner 10k at the end of every stupid video show…

    …thanks to a proper legal analysis by the culture as to the value of IP as license as opposed to ownership we have a decent system for folks who make ideas and expressionns of them vs. hammers and nails…… and thats a good thing.

    btw- this is again all an old arguement again it seems… it wasnt FILO farnsworth who got rich selling TV as a techology device,, it was Sarnoff– who provided the reason to have a TV. The programmming and shows..and stars… so i suspect itll be the same in virtual worlds.. which will hopefully always be mediated by man, and not by the machine, or the tech visions of metafolks who wire them and who cant seem to see the wires coming out of there own stomachs today….—-(videodrome- yes the 1980s was the future once.)

    when did TOM the cat become a “useful article” in catching mice?(jerry)….

    why again dose this seems to be just the metanonsence of trying to be “new” in places that just need good common old sence.

    Just to keep stuff here moving…
    Is it fair use if you host/ take fees/ use trademarks ,copyrighted images and sell non licensed items on your website?

    if not. why are there celebrated/ blogged and many hyped Communities and Sims within Second Life doing the same… Could it be it only enriches LL who take a cut via lindens and fees everyday..? And if any of this is true, how long untill Second Life has to look like There or Kaneva…?

    Turner has just signed a one year deal at keneva… Viacom at There……

    Maybe Linden SHOULD take a more active role in IP rights within their “sl grid” ….since the “little guys of today”…lol or should i say the “larger guys” of tommorrow may be all thats left for them to host…… just a thought guided by the past on websites using others IP……:)

    of course theres always the second Grid, or those crazies creating open web3d on the web using open iso standards and regular web protocals….:)


  7. on 03 Oct 2007 at 7:55 pmBenjamin Duranske

    @6, c3 and @5, Stroker, great points. I catch it from both sides on these. The “information wants to be free” folks think I’m too much of a hard-liner on IP rights, and creators think I’m too soft. For example, two posts down someone is unhappy with my tacit approval of software patents. I probably do fall somewhere in between these two camps, which makes sense, given that I’m an IP litigator by training and, at least sometimes, by trade.

    Segue to this post… I actually agree with the comments so far, at least generally. I definitely agree that the actual scripts, sounds, etc. in the boots — or in Stroker’s box-o-delights — are protected to the same extent they would be if they were programs that drew boots or animated characters in a 2D window. Which is why Stroker’s suit, claiming that the guy outright copied the object using an exploit — makes good sense as a suit to me.

    But also why claims that designer X ripped off designer Y because two products look somewhat similar don’t. Notably, Stroker isn’t suing everyone who makes sex animations — just one guy who ripped him off. I think that’s the right call.

    As for this post, I have yet to see a dispute between clothing designers where the allegations would even meet the pleading standards for a copyright case. It is always just that design X looks like design Y, and that’s why I think Linden Lab is making a smart business decision turning a deaf ear to DMCA reports on clothing designs.

    As for how courts will approach this — I suspect you’re right, that they’ll see digital clothing as tiny software programs.

    And I think Jessica’s comments both here, and in the original linked Herald piece (which she wrote), and Bob’s comment above as well (making similar points) make a lot of sense too.

    My note here is a little more on the theoretical side than I usually go, and to be honest, it is in the process of being completely overwhelmed by the excellent points made in comments so far, a process I’m happy to see taking place. They can’t all be winners.

  8. on 04 Oct 2007 at 9:26 amKit Meredith

    Ben, great post. I’m glad to see someone thinking about (c) and virtual fashion, as I think it’s just going to get more and more interesting. Especailly with Congress considering expanding copyright protection on fashion (see Design Piracy Prohibition Act, HR 5055).

    That said, I think your argument that SL clothing is a “useful article” proves far too much. If the rationale is that virtual clothing is “useful” because it prevents naked avies, then couldn’t that also apply to a lot of the prims and textures in SL? A skin is actually just a texture applied to an avie frame, but it prevents us from all looking like Ruths – wouldn’t that also be a “useful article” under your argument? And a brick exterior texture is “useful” because it prevents all buildings from looking like they’re plywood?

    I think the problem here might be that we’re viewing these in-world objects from an in-world perspective. We like to tell ourselves those designers are creating boots, or virtual boots, but they’re not. Look at it like a RL court is going to – these boots are manifestations of computer code, which is created somewhere on a Linden server when the user engages in creation. Isn’t the copyright on the source code, not the manifestation? If so, then everything created in SL, whether it be fashion or a building, is copyrightable.

    I’m not saying that’s the right way to look at it, since I think that argument may go too far in the opposite direction, but it does show how changing our perspective changes the legal question. Should be interesting sorting all this out!

    Keep up the good work, Ben!

  9. on 04 Oct 2007 at 11:30 amJessica Holyoke

    To Kit,

    When I was researching the original article, I was looking at source code as a possible reason as to why a copyright should attach to prim arrangements. The reason why I didn’t stick with it was because the creators don’t know what the source code would be. They couldn’t re-create that code for anyone else.

    And I know that I’m close to suggesting a sculpter can’t claim a copyright because he can’t re-create the marble, but there’s a point where bare manipulated prims are copyrightable, but I’m not sure what that point is just yet. I do believe that its a high threshold to hit that level.

  10. on 05 Oct 2007 at 9:02 amKit Meredith


    Excellent points! (And I enjoyed your original article too, BTW.)

    I’m not sure I agree with your re-creation argument, just because I don’t think that it’s a requirement for copyright that the creator be able to re-create her work for anyone else. I was trying to think of an analogy but your sculptor/marble one is better than anything I can think of.

    But your broader point is well taken – does the fact that a user can’t see the source code, and therefore doesn’t know what she’s created, prevent her from claiming copyright in that creation? I guess a similar situation would be someone who doesn’t know xml well (like me) using graphically-based website building software to create my website. I know the site itself as a work is protected, but is the xml protected if I’ve never seen it, and don’t know anything about how it’s created, even though I’m the ultimate author of it?

    Frankly that’s a wrinkle that I’m not especially familar with. There may be precedent on it, I’m just not sure. Anyone else know of a case on point?

  11. on 05 Oct 2007 at 6:50 pmc3

    did picasso know chemically how his paint binded to the canvas?

    does the photographer need to know how the camera and film technically work to own his/her images taken?

    did the sculpture need to know if it was god or natures time that made the stone he carved from?

    all 3 examples above are part of the “god-nature” vision of the world around us and our place culturally in it.

    is there any reason to depart from this because we’re “working-spending effort/time” in and with a digital/ network medium vs a physical medium?


  12. on 03 Feb 2009 at 12:04 pmJ How

    I understand about the concern for protection of the designers, but keep in truth with that which is fashion in the RL. I’ve seen clothing come back into style in RL under a different designer that was the same thing I wore in the 70′s. Though they are similar due to the tassel off the side, in truth, otherwise, they do NOT look the same for the texture imprinted on the boot.
    Where that be the case, then indeed, it would be a copyright infringement.

    Realize, if one was to get that technical into the argument of items being created, SL allows only so much in a virtual world to be created. The texture I would say would be more up for question and this isn’t the case as a whole.

    Compared to the Automobile Industry, as well as the Clothing world of Retail, this would be stating the same. Do we remove all until one company has a monopoly on the market?

    I would highly suggest that the designer in what ever they make investigate DIGIMARC and embed their information into the item before it is uploaded for peace of mind.

    I’ve been on SL a year, and there is STILL much to explore and find from other designers world wide who have shops up going that I’m sure would possibly link in one form or another to the original content that was presented for use to create from Linden Labs to begin with.

    All in all, I am sure it states somewhere within the LL policy that all items created within SL are given ownership to LL to choose to do what they wish with if one reads the fine print.

    We are just a guest here, or a member, but in essence, or in truth, the bottom line is…this game IS owned fully by Linden Lab.

    Very enjoyable comment reading though.

    Have a nice day! <3

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