January 23rd, 2008 by Benjamin Duranske
There’s a new battleground emerging for Second Life copyright claims: protest screenshots of in-world ad farm installations.
“Ad farms” (collections of skyline-busting animated billboards that have spread across the Second Life landscape) are widely despised in-world because many owners use them not to generate advertising revenue in any traditional sense, but to force neighbors, often who have been there for years, to buy the property on which the advertisements are placed at grossly inflated prices in order to preserve their virtual views.
The current fight involves Second Life user (and noted steampunk builder) ‘Ordinal Malaprop,’ who put some pictures of various ad farmers’ advertisements in Second Life up on Flickr in order to call attention to the problem and try to shame the advertisers into removing the ads. One of the ad farmers, Second Life’s ‘Cytherea Eagle,’ filed a DMCA takedown notice with Flickr. Flickr complied with the notice, and the photographs were taken down. ‘Malaprop’ has posted regarding the incident.
Here’s a summary of some of the intellectual property issues, from Wagner James ‘Hamlet’ Au’s New World Notes.
If you’re a photojournalist reporting on the news in New York’s Time Square, you don’t need to get the permission of every business owner whose logo and trademarks will surely show up in the published photo. That’s because there’s already an established legal precedent of fair use. (Especially if the logos are part of the news– for example, photos of an anti-globalization protest outside a Nike store.) Trouble is, every Resident owns the IP rights to their content [...] to my knowledge, no real world court has adjudicated over its fair use by others, in similar contexts.
No matter how this particular incident shakes out, the bigger issue appears likely to recur. Advertising, particularly advertising tied to overpriced land, is a genuine blight on the Second Life landscape. Community action via blogs, sites like Flickr, and in-world publicity appears to be the best way to call attention to the problem. Advertisers who attempt to use the Digital Millennium Copyright Act to curtail legitimate commentary are inviting a lawsuit. Damages are available for frivolous or fraudulent filing of DMCA takedown notices.
The analysis at New World Notes is entirely correct, but it focuses chiefly on trademark infringement, which is actually not covered by the DMCA. Though Flickr may well have a policy governing allegations of trademark abuse, it appears that a DMCA notice was filed here, so I’ll focus on copyright issues, and briefly discuss the trademark implications in closing.
I personally feel DMCA claims are all-too-often abused, though they certainly do have their place. As a writer covering these spaces (who regularly finds it helpful to illustrate articles with pictures) I must acknowledge my instinct, and desire, that screenshots of public spaces in virtual worlds, particularly newsworthy screenshots, not be subject to DMCA takedown claims. Happily, this is not an instinct in a vacuum; though untested, the law probably supports this position. That’s good news for virtual shutterbugs.
In terms of legal analysis, there are at least two ways to look at this. One is the same way we look at copyrights on buildings. Here’s a thumbnail of this analysis from the Picture Archive Council of America.
The Copyright Act specifically provides that the owner of the copyright to a building that is located in, or visible from, a public place, cannot prevent third parties from taking or distributing photographs of the building.
The building analogy isn’t a perfect fit, and there are obviously some new issues raised in relation to virtual worlds (e.g. the nature of “public” versus “private” areas in a virtual world where the viewpoint camera is mobile and can be largely disconnected from the user, as it is in Second Life). That said, it seems intuitive — and if one must argue for an extension of the law, that’s not a bad place to start. The same public policy concerns that justify the building exception could be said to apply in a virtual space as well.
On the other hand, another way to analyze this is that every single thing in a virtual world — from flowers to benches to garbage cans to buildings — is “public art.” In the real world, people wishing to print pictures of otherwise copyrighted public art must, generally, seek the permission of the artist. That offers stronger protection for creators than the building analogy, obviously, but it’s a bit of a stretch, and seems to fly in the face of logic to call every single object in a virtual space protected art.
Perhaps most importantly, “fair use” provides a huge exception here under either analysis.
Photographers do not have to seek permission to publish photographs if the use falls under the definition of fair use. I would argue that taking pictures of ad farms and putting them on Flickr (or for that matter, taking pictures of Second Life builds and running them with news articles) amounts to use for “criticism, comment, [and] news reporting,” and thus is “fair use.” So even under the “public art” analogy above, most people’s use of screenshots from virtual worlds would be protected. Notably, selling a coffee table book of famous Second Life art installations would arguably not be protected — and maybe it shouldn’t be. This question forms the basis for some of the most interesting current arguments about copyright law.
The trademark issue raised at New World Notes is arguably even easier to resolve in favor of virtual photographers — a fairly low percentage of Second Life builds are “indicators of a source of commerce,” which is the foundation of a trademark claim. And as noted at NWN, when a trademark appears in coverage about that trademark or news related to the industry in which the business behind that trademark participates, that use is protected (e.g. a story about botulism poisoning at a fast food restaurant can obviously feature the logo of the restaurant where it happened in an accompanying photograph).
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