Intellectual Property: A Tiny Affair

by kris on 28/05/08 at 6:30 am

Who owns the rights to pictures of Tiny avatars?

by Kris Dibou

an example of the disputed illustrations

As I was working on a story for the Herald (regarding a fellow who was writing a children’s book on heart health) including illustrations make from screenshots of Tiny avatars in Second Life, I received this note from Ms. Wynx Whiplash, one of the creators of the Tiny avatars:

  In response to accusations by certain parties; I, Wynx Whiplash, am releasing this statement.  All parties except myself will remain nameless as I do not wish to cause others the harm they seem to wish to cause me.

    Thursday May 8th, 2008, I was contacted by a Second Life resident who claimed to be authoring a pamphlet to educate children on the risks of heart disease and I was informed that images of my work were going to be used.  I was taken aback that I had not been consulted first for the use of the images of my avatars.  The resident told me that he did not require my permission.  I politely begged to differ and was concerned for the reactions of other residents whose work he was also photographing.
    Feeling rather upset that someone felt they could use images of my characters whether I wanted them to or not, I unwisely continued the conversation, trying to be helpful, which is my usual demeanor when speaking to someone via instant message. 
This helpfulness was in answer to his request for free or rented avatars, which alone is a bit shocking since they only cost $1.63 USD.  My mind still racing with the fact that this man just told me he could violate my rights as an artist and wanted a discount to do so, I suggested that if he needed models the Friends of Raglan group (a group I – nor any of my alts – have never been a part of) might help out.  This was a mistake, I should have been more firm that I did not want him to use my images because I did not trust him.  When contacted by my best friend about his message to the group, I told her I did not trust him and had not given full permission yet and that he merely assumed I had but had to log out to prepare to leave town for a funeral for a close relative.
    What happened after that is anyone’s guess since I was not around that afternoon.  I started getting messages from friends and customers telling me that they were being harassed by this author.  More advice flowed in – that I needed to be more clear that I did not want the images used.  So I typed up a polite, clear notecard stating that I did not wish the images used, that there were better, cheaper and legal alternatives and that I would be contacting his publisher to make sure they knew not to use the images.  SL being what it is, I could not get the author’s profile to load Friday morning.  I couldn’t wait – I had to leave for the funeral.  While away, I had no computer access and waited to send the note Sunday night when I returned home. 
    I felt that the note was a mere formality, a polite clarification of how I stood on the matter.  Subsequently, I received a note from the author and although it wasn’t pleasant, it was mostly incredulous that I would not still want an association with him after he harassed my friends and customers.  This I could easily live with.  However, a friend of his who claimed to be his editor at his publishing house sent me an instant message so filled with bile that I could hardly believe my eyes!  I did not respond, I do not respond to bullies.  Yet, here I find myself having to respond one more time to these bullies who have contacted The Second Life Herald to attempt to slander me.  I have been told that this publication does not wish to be part of their harassing behavior and I trust that they will not.
    Let this be a lesson to anyone who has worked hard to be original in Second Life and use it as their creative medium:  you have rights.  You MUST speak up when people try to push you to agree to something you do not want to or feel is not in your best interests.  Do not think you have no recourse, you must protect your creative content and copyrights.  If I had been more firm, perhaps at least my friends would have been spared this drama, even if I had to go to court to protect my intellectual property.  Never be afraid to say No.

Wynx Whiplash

  Now this had me in a fix; here I was, ready to run a story about Riots in Raglan, Tiny attacks, and greed-  armed with a folder full of half-truths supplied to me by the fellow in question.  Half-truths?  Actually half-conversations…you see, the fellow supplied me with only the ‘other side’ of the conversations, filling me in on what he had said and his list of witnesses.  I put out enquiries to the Tiny creators, and was supplied with this (I have removed the names by Wynx’s wishes):

[13:08]  Writer: hello
[13:09]  Writer: i was told u seem to have concerns with my use of tinies for educating kids about heart disease
[13:14]  Tiny: You can’t use someone’s property in a RL publication without explicit permission. You were told no, that you do not have permission to use the tinies in a RL publication.
[13:16]  Tiny: If you wanted some illustrations or something done of them, you could have asked, but you were definitely told ‘no’ on the using them like that thing.
[13:21]  Writer: and who told me this thing
[13:21]  Writer: do u own all small avatars in sl
[13:22]  Writer: in fact a check on slexchnage with your name shows no association at al with small avatars
[13:23]  Writer: Roland Francis, Etheria Parrott, Kyro Kilian, Lalinda Lovell, Beezle Warburton, all make them, in fact accrding to sl wiki: Many residents make and sell Tiny avatars under their own (or no) brand names.
[13:23]  Writer: so why am i to stop taking photos of small vatars because u tell me too, i have the owners permission in each case
[13:23]  Writer: and BTW
[13:24]  Tiny: You want to use Wynx’s creations in your RL publication. To do so without permission is a violation of intellectual property laws. I am Wynx’s business partner and we created the Tinies and put them out in 2004.
[13:24]  Tiny: You do not have Wynx’s permission to publish anything using her avatars.
[13:25]  Writer: i have many patents in the patent office, i am not infringing on your name, i do not need fords permission to take a pic car
[13:25]  Writer: so
[13:25]  Tiny: if you publish something for profit using someone else’s products that is copyright infringement as much as it is intellectual property infringement and I am telling you that if you proceed and publish without express permission, we will be contacting our attorney and filing a lawsuit.
[13:27]  Writer: well do u get the perm of every texture u use for your constructions, hmmmmm
[13:27]  Writer: do not be absurd
[13:27]  Tiny: You obviously do not understand. This conversation will cease right now. You’ve been told NO. and NO means NO. To continue to publish something using someone else’s intellectual property is a violation and it will be pursued.
[13:28]  Writer: u know i am trying to help teach about heart disease to kids, and using sl is a great way of helping those who volunteer to do this social work
[13:28]  Writer: u r just upset because u think u arent getting enough money
[13:29]  Tiny: That’s great but you were told No on using them in a RL publication. this conversation is over. Anything said further will be considered harassment and reported.
[13:29]  Writer: my, my u r testy
[13:29]  Writer: do the small avatars know u prevent them from any profit if they where that av
[13:29]  Writer: perhaps ill tell them
[13:29]  Writer: in fact
[13:30]  Tiny: I am filing an abuse report if you do not cease right now.
[13:31]  Writer: ohh the tinie lawyer scares me
[13:32]  Writer: i have rl patents dude
[13:32]  Writer: i make no claims to your product
[13:32]  Writer: il will now establish my basis for making pics
[13:32]  Writer: and ill get an attrney to depose this conversation
[13:33]  Writer: i do not nor wil i ever knowingly use your small avatars
[13:33]  Writer: i wil go out of my way to be sure of that
[13:33]  Writer: il remind every small avatar of your concerns
[13:34]  Writer: and that u have no interest in helping kids, so i will politely ask others to do so
[13:34]  Writer: so may have al your avatars
[13:34]  Writer: ill check with the shots i have made now and ask the models if they used your product
[13:35]  Writer: if so i wil ldelet that pic
[13:35]  Tiny: I have now filed an abuse report for harassment. I asked you to stop. now Stop.
[13:35]  Writer: but i wil make this open that u refuse to allow this
[13:35]  Writer: find
[13:35]  Writer: and what abuse have i committed
[13:35]  Writer: helping children
[13:36]  Writer: so how many kids have u tried to help lately
[13:36]  Writer: mind if i post these comments on SLNN
[13:36]  Writer: will make a great story
[13:36]  Writer: just back off
[13:36]  Writer: u canhave your money
[13:36]  Writer: i am here to help ppl
[13:37]  Writer: if they ban me
[13:37]  Writer: the worlds loss

Hmmmm…No ego there! 

  So, attitude aside, was Mr. Writer correct in his assertion that he did not ‘need their permission’ to print photos of their creations for profit? Would he need Ford’s permission to use a pic of their cars in his book?  Will Lassie ever find Timmy in the bottom of the old well?  Stay Tuned…

38 Responses to “Intellectual Property: A Tiny Affair”

  1. 1

    May 28th, 2008

    How do you think photographers for journalists earn their money from newspapers?

  2. Ran Garrigus

    May 28th, 2008

    I was thinking of the recent case of Ford stopping publication of a calendar by Mustang enthusiasts, but this was based on trademark, not copyright. I’m sure none of the makers of tinies actually hold trademarks on their products.

    The fellow claims he has the permission of the residents displayed in the photos. If this is true, I’m not sure that Whimsy or any other tiny maker can really stop this. I don’t believe a court would agree that people who buy tiny avatars are restricted from taking images of those avatars and using them as they see fit (whether for profit or not), short of there being some sort of licensing terms to this effect.

    There’s also the supposed educational aspect of the alleged publication, which might also allow a fair use defense on that basis.

    I will say that the person’s attitude stinks, however. Being rude, harrassing people, etc. — not a good approach.

  3. anon

    May 28th, 2008


  4. Barney Boomslang

    May 28th, 2008

    Well, I guess if you wear a tatoo, you have to ask the original artist, too, before you are photographed. And hey, be careful with those Lacoste shirt or Boss trousers – need the ok from the original designers, too …

    Sorry, but actually imagining you have the right to control photographs of other residents because they use an avatar you sold them is bordering on absurd. Mind you, this is not a statement about legalities – I am not a lawyer and the law to me is often bordering on absurd, too. But reading that idea from someone whose avatars actually are based on an AO made by Kage Seraph is quite funny ;)

    Doesn’t change anything about the assy attitude of that person who blathers around about how helpful he/she/it is – guess it’s a fake, because people who have to put forth their greatness with so much aggression usually are just plain liars.

  5. ichabod Antfarm

    May 28th, 2008

    I am curious how Linden Lab feels about images taken from Second Life being used in an RL publication. Was this raised in the conversation? I got tired of reading the bully’s blather about his patents so I skimmed.

  6. Prokofy Neva

    May 28th, 2008

    There’s nothing special about online. It’s like the rest of real life. Here’s the law — it’s simple:

    “The law in the United States of America is pretty simple. You are allowed to photograph anything with the following exceptions:

    • Certain military installations or operations.

    • People who have a reasonable expectation of privacy. That is, people who are some place that’s not easily visible to the general public, e.g., if you shoot through someone’s window with a telephoto lens.

    That’s it.”

    Read more here:

    or Google the term “photography rights” to get a lot more available than what has been provided by either side in this story.

    Is Second Life in some sense a private club, such as to be able to demand and enforce an overall ban on photographing patrons, like casinos do in the US? Well, no. Anyone can get a free account and enter. Did the photographer use a zoom lens to pry into a closed parcel to take the picture of these tinies? No, they were just out in public. Is there something about “making a profit from the photo” that changes the nature of this right? Well, no, it’s a default right, and the restrictions on it aren’t so clear in the SL context such as to rule unequivocally for banning the use of photographs without permission.

    People are ignorant, touchy, and uneducated about these matters and imagine sometimes that their privacy trumps all, or their IP is relevant — it isn’t.

    In this case, you could hardly make IP relevant, as the photographer isn’t trying to sell tinies or sell something related to the skins or the scene, but is publishing a health booklet, even if he gets a fee for his work in this non-profit venture.

    This amount of ignorant and insolent touchiness on the part of SL residents is what makes the place unappealing to people who would like to use it for a wide variety of purposes.

    In short, Wynx has no case. And I’m really skeptical that these people were “harassed” as they imagined.

    I had a similar problem crop up that was worse because two people were taking pictures of buildings I had commissioned and paid for, and which were protected IP of the builders in sims in the SL Public Land Preserve. They took these pictures and sold a calendar using these pictures, and none of the proceeds were given to the land preserve, and none of the photos credited the work of the builders. That really seemed exploitative and churlish. But these are public buildings, anyone can fly up to them, and it’s like saying that I as the contractor or architect should get proceeds from somebody photographing the Empire State Building.

    Are people somehow special and different than buildings, and bathed in bulletproof privacy? No, not when they’re in public, and they are in public in SL.

    What is a “reasonable expectation of privacy”? Well, some would argue that if you have not put up ban lines and have not closed your island, you can’t expect privacy. People are going to differ about this heatedly — but the important thing to understand about it is that there is no law set in stone about what the reasonable expectation is in a virtual world, the TOS does not really help you here.

    Keep on bitching about this, and here’s what is likely to happen: Linden Lab will start claiming that all screenshots taken within its property should be marked as coming from Second Life (TM).

  7. Somatika

    May 28th, 2008

    The guy seams rather mean.

    he can take and use any photo of anything he wants, as long as there is no trademark in it. although if it was a painting or some form of art, it would be infringing on your copyright. of course this really brings up what is trademark with pixels? Someone could argue that everything in Second Life is art, it is after all nothing like real world counterparts.

    Fair use of thumb would be he has every right to use those avatars in a photo.


  8. Artemis Fate

    May 28th, 2008

    For a “Writer” he certainly has trouble spelling small common words like “you” and “are”, apparently his shift key is broken as well, since there is absolutely no capitalization to be seen. Not that I usually go after bad spelling, punctuation, and capitalization like that, but anyone claiming to be a professional writer shouldn’t be typing like a drunk 10 year old with Parkinson’s disease.

    But douche-baggery aside, as proven above, he pretty much has the right to take pictures of whatever he wants and use them for whatever purpose. Only trademarked items are protected from that, which is why you occasionally see brands blurred out on shirts on news shows and such, but I doubt Tinies have a trademark and it’s not apparent in that picture.

  9. Darien Caldwell

    May 28th, 2008

    Yes, not cool to harass people in that manner. But if Taking screenshots in SL were illegal, I think the ability to do it would have been removed by now. Not that it would do any good mind you.

  10. Brendan Cale

    May 28th, 2008

    Barney Boomslang and Prokofy are both right, Wynx has no case and has no idea what she’s talking about. Otherwise this would mean in real life that if I was wearing a (Insert Brand Here) Tee-shirt and I was in the backround of a New York Times Publication of a picture in the City, just someone in the backround, that (Insert Brand Here) could sue for copyright infringement (and of course they can’t). Since the Writer brought the objects, he has the right to photograph them in that way, though he did wrongly by attacking her. She’s still a fool for thinking if she had any kind of case against him.

  11. Georgette Whitfield

    May 28th, 2008

    Yes, regardless of the Writer’s sucky attitude, it seems they do have the legal right to do this. According to UK copyright law anyway, which provides exception for:
    “Drawing, taking a photograph or making a film of buildings or sculptures and works of artistic craftsmanship in a public place or in premises open to the public.”

  12. Sophia

    May 28th, 2008

    I agree with ichabod Antfarm. Gee it would put us all in a rather difficult position if we were not allowed to continue to take screen shots of our adventures in SL. I love taking snapshots and films in SL and would be so well out of there if that was the case.

    If you didnt want your tiny avatars to be photographed you should have kept them to yourself. I dont know the details of your distribution on your creations. Yes the guy may have been a jerk. But was it after or before the rejection and you knowing he was creating a publication? Also were you made aware that it was right off that it was for a publication for heart disease for children? Thats important. I also glanced over the article forgive me.

    I go around filming and taking photos in SL all the time and it would be a great let down to me and I would say screw it if i couldnt do it freely and get the heck out of SL. If you create something in SL and distribute it all over SL by either selling it or giving it away well thats opened it up to the population and all the exposure it will get which means the potential of people taking photos of your work.

    Im sorry for you trouble but you should have thought about that when you created the tiny AV’s and what your purpose was in creating them. Were they private? You should have kept them under wraps. If people bought them or they were free they walked around in them all over sl. Did you make any profit from selling the tiny AV’S? Well if you did you used the tools of SL didnt you. Well then thier trademark would fall under that i would think. Which im hopeing not because that would also be shooting themselves in the foot.

    It would realy stifle a major population aspect of SL and the enjoyment of all creators and participants in there if we couldnt take photos or film in SL to show others our experience with out feeling a lawsuit pending because of copyright / trademark issues. There would be no purpose for me and many others to continue using the site. It just ruins it all.

    I feel you have no basis on a lawsuit. im sorry. However if he had contacted you the creator in the first place to say “hey would you mind if i used your avatars in a publication im doing for heart disease for children ect…? that would have been my aprouch i guess. “I’ll give you some credit would you mind” that would have been more appropriate i think as far as being a profesional. What I think is he took an easy route out in his work by finding out about SL and knowing he could find some creatures and great images in there that would fit his illustrative purposes and needs for free. Not thinking like a real proffesional which i dought he really is and is just an ordinary guy trying to do something good but is not educated in the area of media edicate I guess.

    I would let it go and let him do his good deed and well if you dont want your products photographed take them in. Which may be a shame. Sl is what it is… a big melting pot of wonderfull colorful characters and images and a paradise most times for the creative heart. Let it go and relax and take note of this that your work was worthy of someones eye to capture to help promote heart disease awarness to children. I think that is most important and you did something very unexpected and good for the cause and if i ever see a copy of the work I’ll remember you. I love the tiny Av’s so relax and take some pride in your work. Make friends and forget his words he obvioulsy doesnt get it in SL. But I can see the passion you have in your work and that also speaks volumes so chill and be proud of your work and that someone took notice and so many people will learn from your work.


  13. Shep Korvin

    May 28th, 2008

    Stop… whoah… wait a minute. Pictures made in SL are _not_ photographs. They’re digital renders of 3d models, 3rd party textures, and all sorts of copyrighted gubbins. Real world photographic laws do NOT apply to any pictures created by the SL client.

    I seem to remember a year or two ago, a certain SL land baron managed to get a somewhat compromising SL “photo” retracted from some high-profile internet news sites, by using this very loophole – the fact that her avatar’s skin was an exclusive copyrighted property, and that any images created featuring her avatar were therefore a derived copyright work. Some big news outlets – with smart legal departments – capitulated to this argument.

  14. Sophia again lol

    May 28th, 2008

    Gee I think our comments are getting messed up to who says what. sophia said what lol
    Georgette Whitfield wrote. Hmm this has happened before. Its ok. But after my post someone wrote “stop..Whoa …..” that wasnt me…but they r also right..
    Just making letting you know


  15. Sophia

    May 28th, 2008

    I retract that statment lol…to a degree. Who ever said this. not sure if they meant it as an infringement case….what was the out come?

    “I seem to remember a year or two ago, a certain SL land baron managed to get a somewhat compromising SL “photo” retracted from some high-profile internet news sites, by using this very loophole – the fact that her avatar’s skin was an exclusive copyrighted property, and that any images created featuring her avatar were therefore a derived copyright work. Some big news outlets – with smart legal departments – capitulated to this argument.”

    Not knowing the total issue and outcome. I would say they came to a mutual agreement and there was no legal basis on which was etched in stone and if Im correct by what Im reading there the photo was retracted. It was probably out of a mutual agreement not a legal law. If this was the case then all of the sites on the internet that allow you to take snapshots of thier environments would be in violation of some law. Which in the big picture scheme of things would throw a match in the pile and set it to flame and it would be no more. It would be rediculous to restrict taking images or films in any of these environments with the fear of legal ramifications. Just a total loss. If you dont want your work shown or photographed keep it in if your want it private and for your own use. Thats simple enough.


  16. Jessica Holyoke

    May 28th, 2008

    Intellectual Property (IP) includes Trademarks, Copyrights and Patents. Trademarks are identifiers of goods or services. Copyrights are expression of an idea, either through typically audio or visual means or both. Patents are either design patents, plant patents or some useful invention. There is some overlap such as Superman being both (c) and TM DC Comics.

    The trick about virtual worlds legally is behavior versus content. In the behavior column, Wynx does not have a shot. If virtual worlds are behavioral, it is like RL and the avatar is a person who can sign a waiver to have their picture taken.

    If its content, that’s where it becomes complicated. For instance, if I purchase a CD, I can sell that one copy. I can’t reproduce that CD or authorize all the potential uses of the music, like using the music for a soundtrack, just because I own that particular CD. With a human avatar, the question of who created the avatar is a little closer to the User. For example, I have hair, skin, shape, eyes and clothes from different sources. With a tiny avatar, it is more likely that the avatar is assembled either wholly from one creator, at least in the creator’s original vision. I would say a tiny avatar is closer to the original creator’s work than anything assembled by anyone else.

    Now in addition to all of that, Writer was using the photographs to make his own work. He wasn’t just taking photographs for his personal use. If its behavior, then Wynx doesn’t have a shot and the writer did everything correctly. If its content, then Wynx can absolutely say no to the use of those images. Its his copyright protected work which is either reproduced, had a derivative work made, or publically displayed.

    The illustrations aren’t being used because of its content. It wasn’t said that the tinies were at a heart disease event or function. If they weren’t, then just because the pamphlet has some educational use, doesn’t excuse the infringment. Its like if I synched My Chemical Romance to a film about Chemistry for high school students. its not enough that the film is educational that I get to do that.

  17. Anonymous

    May 28th, 2008

    Oh, so the argument is that only photographs and not screen captures are allowed in public areas. This sounds like a silly legal distinction to me, because all I have to get around the copyright issue then is to take a camera and snap a photo of my monitor. I believe that the regular civil and legal rights that individuals enjoy in the physical realm should be expected to be extended and exist within the virtual places that exist on the net as well. You know, little things like freedom of expression, a free press, reasonable privacy and property rights, stuff like that. If someone purchases an avatar and accessories and roams a publicly accessible virtual simulation without explicitly limiting their use in a contract agreement, it should be fair use to reproduce and distribute their likenesses and their environment’s likeness as the item purchaser or sim user sees fit. Its one thing to protect a creator’s right to market and sell their wares or a land owners right to manage sim access, its another to make consumers of those wares or visitors to virtual lands slaves to the creator’s or land owner’s every desire and whim as to how items are used after they are purchased or what forms of behavior are exceptable during a publicly accessable sim visit. If one sells or opens access to the public then they should be forced to balance their own desires with that of the public good and reasonable needs of other individuals. When this is not the case, it should be made so by law.

  18. Bennie

    May 29th, 2008

    Try and make a digital or RL calendar with Ferrari cars, either RL cars photographed or virtual renderings. See what Ferrari and their legal departement have to say…

    The trademark VS copyright is not an issue, as a copyright is (sofar still, about to change) automatic, and needs no special registration of whatever kind.
    If you have any kind of idea and you put that into any kind of medium, eg, make a drawing of anything you think up, or use Maya to make a 3d model, or whatever medium, you automatically have a legal copyright which can be used as evidence in a court. However, there must be proof of the date of creation in such a case, but this can already be obtained by mailing yourself a copy of the work and keeping the envelope sealed; the postage stamp is already legal proof of date.

    Taking photographs of anything you want is legal as Prok pointed out, but this is about the creation of photographs. Publishing these photographs for a profit however, is an entirely other case.

    This is a tricky case, and I’m curious to the outcome if this is ever handled by LL themselves or the RL court.

  19. Sophia

    May 29th, 2008

    Well this all seems a bit strange considering since SL’s conception people have been taking snapshots and using them all over the internet on thier sites…but it will be interesting to see how this is handled if at all…If this goes before all the financial fraud thats been going on in SL then I’ll blow my dooms day horn. This is minor from whats going on in other areas of SL where people are literally walking away from SL with thousands of RL cash from SL and screwing the residents of SL in RL. They may have been stupid in the first place to invest or trust the individuals in the first place but there r major frauds going on in SL and LL’s hasnt even addressed that issue really. Even after meeting with congress and pretty much after been asked the question about fraud and money laundering. not to thier knowledge there isnt any. how many people have complained to them? And this is not like the case of the sex bed. These tiny people roam SL ..look cute and make people laugh and others take snapshots of them. What about them? You dont know what they do with them after. I dont know. I dont see this as a travesty. Loosing thousands of dollars to a con artist in here is much more of a concern. I havent lost it. Im just an observer. I learned. Id like to see the authorities focus on those crums rather than worry about tiny AV snapshots used that may or may not look like Beatrix Potters characters. (forgive the spelling) but like I mentioned before. Take it as a compliment that someone liked your creations and dont blow it out of proportion.

  20. Alazarin

    May 29th, 2008

    As I see it both Wynx and Writer are wrong but in very different ways:

    1) I *THINK* that legally Wynx cannot stop Writer from using images of Tinies in a publication and / or promotional work so long as they’re not for profit. I could well be 100% wrong here and that’s something I’m prepared to accept.

    2) Writer is an unprofessional bully and does not come across as someone employed by a heart disease foundation. A professional would:

    A] Approach Wynx as a representative of the RL company / charity he claims to represent with full verifiable RL contact info.

    B] Offer Wynx a reasonable payment for use of her avatars.

    C] Discuss with Wynx and any avatars employed as actors / models his plans.

    D] Pay the avatars’ players’ adequate recompense for their role as models / actors in the promotional work.

    It would seem that Wynx was right in being circumspect about Writer who is most likely an opportunistic fake or someone with a hidden agenda. And If it is possible to block Writer from using her Tinies in a promotional work then I feel Wynx should pursue it.

  21. Ran Garrigus

    May 29th, 2008


    As the case I mentioned earlier, I’d guess Ferrari actually has a lot of trademarks on their cars and logos, and so that’s where you’d fall afoul.

    As to copyright, I would perhaps compare this to the fact that according to U.S. law, architects hold the copyright on their architectural designs . . . _but_ the law also makes clear that this does not mean that they can control images taken of a realized building if it is in a public place. Public display of something does reduce the privileges you have to some degree.

    Now, a photograph of a painting might be considered a “slavish reproduction” (the phrase is coming up from some case or other I read about recently), and in this case it’s copying and you need to secure reproduction rights. But is a snapshot of a tiny AV count as that? I don’t know. If someone sends me a snapshot, I don’t have a tiny AV. I’ve a picture of a tiny AV. It’s a rather different beast.

    It’s tricky. I think there may be a legal case in there after all — a WIPO page I found concerning photographing works under copyright is suggestive. It would really depend a lot on if a court sticks to the idea that this is all just computer renderings and computer art (in which case there’s certainly a case to be made), or if a tiny AV is no different than a halloween costume or a business suit (in which case I believe Whimsy and other designers would have much less control over displays of their avs).


    Actually, the fact that it may be non-profit/educational does not necessarily allow something to be used without the creator’s permission. Doubtless a court would take it into consideration, especially if trying to decide if a use is a fair use.

    But being non-commercial/educational does not make it automatically fair use.

    Wikipedia’s article on fair use provides some more information. In the end, a court would look at various factors to determine if the use was a fair one that did not require permission.

  22. sweetie stransky

    May 29th, 2008

    Come on we are speaking of SL. This man is really a nice person. I personally know him and he does like to help people in RL and tries to in SL. Yes, he does have a book out there of other things and it is interesting.

    If I wrote a book and used my computer to type it up do I have to email the maker of the computer for permission in sending this to publish?

    There is a misunderstanding in that topic.

    SL has helped many people stand up tall or short and do their thing, what ever that is. If a book helps children on heart disease why not?

    Thanks for reading my opinion

  23. Restless Writer

    May 30th, 2008

    He was a jerk-true. He could have asked in a nicer way if you and your customers wanted to help out with his educational book. And he could have taken your answer of “no” better. You certainly got the right to say, “no.” But yah got to got to look at the bright side of all of this. Look at all the free advertising you’re now getting because of this issue! :D I’m sure your sales are benefiting from this article at least. ;)

  24. Mysterio

    May 30th, 2008

    I think this is stupid and judgemental, especially when mr. writer is using the images to promote real life issues to the young people of this world, so what if he’s using your avatar, its not different form the press.

  25. lol

    May 31st, 2008

    the tiny maker chick is the jerk ,freaking fascist trying to say ppl cant take pictures of anything get a life

  26. Brendan Cale

    Jun 1st, 2008

    More Importantly, could Wynx sue the Herald for using the picture?

  27. Cocoanut Koala

    Jun 1st, 2008

    I think Wynx has a case.

    I don’t think “writer” has written anything, the post above notwithstanding; nor ever will write anything.

    What “writer” is proposing to do is illustrate his booklet with someone else’s charming work.

    A word to the potential publisher (assuming it’s not self-published) should be sufficient to stop this, I would think.


  28. Lykurgus

    Jun 3rd, 2008

    In the eyes of the law, there are no virtual worlds as such – and since they are populated by real people, whose interactions are just as real, don’t expect that to change. This also means that if SL achieves a distinct legal status (in the sense that “public place”* enjoys one), it will probably be as a glorified conference call (if its not already). So that doesn’t come into it.

    According to the Berne Convention (which is God, in any IP matter), copyright is in force from the word go – no ifs, ands or buts. The Interwebs problem is covered by the WIPO Treaty – which classifies essentially all SL content as either Literary or Creative works. Auto-Copyright for everybody, asserted by simple proof of origin (unless you’re handing out full-perms for free). More on this shortly.

    As for the Patents that Writer claims to have filed by the oodle – he’s full of s***! I once tried doing this with a virtual object, just to see if I could – they told me to p*** off. Physical objects only.

    Back to copyright…
    He can’t just scream “Fair Dealing” (or fair use, as the US calls it), unless it’s one of three strictly-interpreted categories:-
    -Research and Study
    -Review and Critique
    -News Reporting and Professional Advice
    … and unless confined to “representative samples” (say, one chapter if its a book), still won’t fly.
    You’ll note, that I did not say “charity”. A court can’t reasonably accept such an excuse, because if they did, every man and his dog would try that one on, and get away with it even if you prove material harm (ie. lost earnings).

    As for privacy…
    If a published image of any sort depicts you or possesions of yours, and you object to it, the image must be pulled, or the offending item edited out. Privacy laws still apply if you’re in a country that has them, and I trust that every user in Writers snapshot has handed him a release. If not, they can insist on being edited out, or slap an action on him if he tells them to get stuffed.

    So the problem isn’t getting cease-and-desist orders (that’s easy), it’s getting compensation. That kind of case gets protracted easily, so no lawyer handles a claim for compo on IP breaches without a lavish advance on his fee – A$70,000 isn’t unusual (hence the music industrys penchant for picking on 12yo boys and little old ladies).

    Unless Writer is physically located in a country that has no or weak privacy provisions, or did not sign the Berne Convention. In either case, he can do as he damn well pleases.

    Hey, did I say it wasn’t an ass?
    Though he would not have been, if he didn’t KNOW he was guilty as sin.

    *SL cannot be deemed a public place – you need an account, logged in through a client, to an otherwise closed system. Not a place.

  29. fword utorid

    Jun 4th, 2008

    ok. here’s the duh.

    if you make a product, you own the copyright.

    if bob takes a photo of the product, bob owns the copyright on the photo.

    why are you worried about bob?


  30. Wynx is wrong

    Jun 5th, 2008

    You are mostly missing the point. The work is the picture, or the screenshot. That has a group pose, props, location found, and the work executed. That clearly has artistic merit, and qualifies as a copyright work. The avs are not central to the work – a key point. Pressing the snapshot button is no different to pressing the shutter button on a digital camera. Shep is wrong on that point. That also makes Profile pics copyright, and thus the scripts that copy it and publicly display them in clubs etc are infringing the copyright of the profile pic owner.

    SL is a public place, it’s free to sign up and access. Times Square NYC is a public place right? But I live in Europe. I have to get on a plane to access it, but it doesn’t make it any less public.

    The pic is a totally separate work, even if the avatars themselves were protected, which is dubious to start with, the textures maybe, the entire av not so clear. The successful Eros copyright infringement cases were about the textures used, not the SexGen beds themselves.

    Clearly the avs were purchased, so they are not Wynx’s possessions, and the only permission is model releases required, not the av maker’s permission. Wynx is wrong on this. There would be a caveat if it was used for marketing a product or endorsement, but it isn’t, or if trademarks applied perhaps, but unlikely in this case. It’s like wearing clothes in RL. If that were applied almost zero photos could be used in RL, and clearly they are all the time without the permission of clothing or jewellery makers.

    So it’s incidental to the point of the pic (nuts and popcorn), the av copyright is not directly copied, and as such it’s also not a derivative work, but a wholly new work owned by the picture taker.

    Best of luck in the court case, but I’m pretty sure Wynx will lose.

    As an aside: Education fair use really means the actual process of teaching, eg a teacher copying texts for classwork. It does not apply to non profits or campaigns, and even educationally, there are strict limits. Schools have to buy textbooks after all lol. News is specifically allowed, but whether the Herald actually qualifies as a newspaper, since most of the stuff here is complete fiction, is open to a high level of doubt.

  31. Jessica Holyoke

    Jun 5th, 2008

    Here’s a great way to look at this.

    Let’s say that someone, Steve, decided to make the exact same avatar as those Wynx makes. The reproduction is so close that you can’t tell the difference between the two. But let’s say that the textures came from the same open source. (Wynx and Steve got the Textures from Textures R Us or something, just to take out texture theft.)

    If you believe that Steve should not be allowed to copy the original avatars, then all the other rights of copyright kick in and Wynx can block publication.

    If you believe that Steve can copy the original avatars, then the photographs are ok to publish.

  32. Cynthia

    Jun 5th, 2008

    In actuallity, what it probably most fitting are photographs of people. if you take pictures of people in different places and get signed releases from them to publish them, you don’t need permission from the maker of each article of clothing they’re wearing and each piece of jewlery and the company that made the bench they are in front of. Now ,if the clothing was the focus of the pictures, maybe I might.

    If I take pictures of a bunch of people with their cars at drive-ins and (with their signed consent) publish a calendar I”m likely fine. Ferrari probably cant come after me (well, they always can but might not have legal grounds since I’m not presenting my work as an official Ferrari publication nor is Ferrari even a focus for the publication). The pictures are mine and my copyright to do with as I will as the photographer. If I, like those people with the Mustangs tried to do, take pictures of my cars and go to publish a Mustang themed calendar (probably would have wanted to have Mustang in the name of it also which Ford could worry would indicate use of their branding) I’m likely to run afoul of Ford. There is a clear difference there.

  33. Lykurgus

    Jun 10th, 2008

    Actually, Wynxiswrong, go back and read what I said about “public place”. Until SecondLife allows literally ANYBODY to come in – even if they don’t have an account – it is not deemed truly “public”. The existence (or non-existence) of fees is superfluous.
    But this pales next to the other major difference between it and Times Square…

    Times Square is a PLACE.

    Read that again. I’ll wait.

    SecondLife is a login-sealed network, based on the conference-call model, made to look and feel like a place.
    So Shep’s right – the image may be moving, it may be responding to your commands, but you’re STILL capturing an image of an image. If Shep was wrong, we’d already have hundreds of court decisions to say so.

    Jessica, to use your example…
    The origin or status of the textures won’t come into it, unless their author knows about it and decides to involve himself. Then he could have them both done.
    Since he’s chosen (in your scenario) to waive his rights, Wynx’s avatar would be deemed the original. Which means Auto-Copyright immediately.
    What Steve does is the more brazen infringement colloquially known as “piracy” (ie. it’s not even derivative – it’s faithful duplication). She could stop him from distributing the avvie or piccies thereof (or even using it, if it’s a sale item of hers). And if he sold it, she could claim a piece of the action.

    But as Cynthia pointed out just now, IP law all comes back to consent. If persons, or possessions thereof, or intellectual property thereof, are in the image, you need releases in order to publish. Or edit those parts out.
    Ferrari can NOT touch you Cynthia; unless the units you snapped are yet to be sold or disposed. Either way, ask the driver.
    Now, if the owners of the depicted characters have issued a release, those can be used in any fashion.

    How much of an avvie is protected or not, is neither here nor there. It’s wether ANY such content is shown, and wether the holder lets you publish.

    But the rights holder of a depicted item (Wynx) has already objected. Therefore, Writer can’t legally use those images that feature it – and certainly not to sell something; even a charity. I’ve seen no end of one-man-band “charities” get themselves in trouble by using that word as some kind of carte-blanche.

    Wynx, if you still feel the same way about it, pursue the cease-and-desist order, or the equivalent. I’ve never seen such a case fail – and it’ll be contempt of court if he continues. As for compensation… if Sony or Polygram can’t pull that off, neither can you.

    *Now, before anybody starts dropping loads in their undercrackers over the prospect of SecondLife Herald having to pull content left and right, STOP WORRYING. This falls under the “News Reporting” heading – you don’t need a license, and veracity of content isn’t one of the criteria.

  34. Johnny Jericho

    Jun 11th, 2008

    for using the name of Kyro Kilian without permission you must pay w-hat 500L going towards the mowhawk tax.

  35. Lykurgus

    Jun 12th, 2008

    Is “Kyro Kilian” trademarked? You know, that poofy little TM thing? S***, that means you and I have to hand biccies over too…
    (/me prays the application was held up)

  36. Jessica Holyoke

    Jun 12th, 2008


    My reference was to an unpublished article regarding two houses. Both of which are built in a mediterrean style but one of them built on the land of a prominent renter of land, the other not. The renter of land was claiming copyright infringement over the arrangement of the prims as well as the underlying textures. The builder of the second house happened to rent on the land of the prominent renter and was banned from his rentals because of alleged copyright infringement.

    Its just that in other forums, not necessarily this one, the prominent renter claimed that certain buildings can be used for a calendar without the builder’s permission because the building was in a public place. Essentially the claim being from the prominent renter, there is a copyright in the building but only some of the rights of copyright attach.

  37. Lykurgus

    Jun 12th, 2008

    I hope I’m not about to risk identifying* the renter…
    but I do know that a prim build would nearly always have to be a perfect duplicate to be claimable. And that if the textures aren’t freebies, there’s a rights-holder somewhere.

    But that “public place” isn’t a direct exemption – RL architecture (but not plans), art galleries and so on are released or waived by the owners expressly for public dissemination. SL equivalents usually aren’t.

    Although none of this rules out the effect of any covenants or lease conditions that renters variously impose or omit to impose.

    (yes, I know – lame post – it’s 3am – ‘night all)

    *no, I don’t know the renter or the story

  38. Codeine and heroin.

    Sep 14th, 2009


    Extract codeine from fioricet. Liquid codeine how to make. Codeine. Sell codeine.

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