@profoundlandish

And your description goes with the problem of mixing up trademarks, which would be the Desert Eagle name, and if we are talking about design patents, which would be ornamentation on the article of manufacture.

You may notice in older video games, back before they had the status of Hollywood movies that modern firearms, while clearly identifiable, often used some variation of their well known name. For example the Desert Eagle was often referred to by its Israeli military designation (which eludes me at the moment)or as the Deagle or some other name that made it clear what it was without using the brand name. This was because those firearm manufacturers were not in a hurry to have digital representations identified with their producs without compensation. A friend who worked for a gaming company at the time explained it thusly -

If you make a movie and buy a Desert Eagle or a licensed prop gun you have a right to photograph it and to call it what it is. This is because it IS a Desert Eagle.

If, on the other hand, you make a perfect digital replica of a Desert Eagle, its still not a Desert Eagle. Its a digital model of a Desert Eagle that you made. So you can’t say it IS a Desert Eagle unless the manufacturer allows you to. On the other hand, you can make it look a whole lot like one, which you couldn’t do with a real firearm.

So, based on that insider understanding (granted many years old now), the patent on the form of a motorcycle is not impinged on by a digital representation of the same apparent shape. This is because digital representations don’t really have a shape. The sticky wicket is if you make a digital representation that appears to be a recognizable item AND use the Trademark names assosicated with said item.

Of course these days its more likely that companies are lining up to pay for product placement rather than be paid for it in video games.

*This advice is not intended as professional legal advice. If you have serious questions, consult a lawyer. Not intended to diagnose, treat or prevent any conditions. The FDA has not approved this advice or tested its effectiveness. Keep out of reach of children. Do not take internally.

You just make shit up.

But I do feel badly because Coco is right, I didn’t mention the possibility of a design patent for the motorcycle. Its only available to new, original and ornamental design for an article of manufacture, must not be useful or functional, but is only available for 14 years. Which of course begs the question, if I make a computerized representation of a design patent, am I infringing on it? What I made would not be an article of manufacture. Egyptian Goddess v. Swisa Inc hinges on whether the accused infringing product looks substantially the same as the design patent protected one. I think it would be hard to confuse a computer generated model with a real life motorcycle.

Software is this whacky area though. The writing of the code is a writing, envisioned by copyright. But the code is useful so coders sometimes try to patent it. And I am fuzzy on the state of software patents right now, mostly because I am not touching patents with a ten foot pole.

Patents have 5 requirements before they are accepted by the PTO, and they must be approved and (patent must be issued) by the patent office (takes a few years or so)before they are effective. There are several types of patents including Bio/plant patents, design patents etc. In the above example, harley davidson would likely obtain a DESIGN patent over the shape of its motorcycle provided its shape meets the reqs.

Trademark is not necessarily a brand name. Trademark is anything that can be associated with a company or individual as having come from that source. Trademarks could be smells (think perfumes) colors (pro football teams) shapes aka trade dress (oakley sunglasses have a distinctive shape indicative of its source). Trademark is governed by the LANHAM act, and they can also be registered with the PTO. Harley davidson’s motorcycle shape is more than likely trade dress. Though keep in mind, trademarks are only infringing if they create a LIKELIHOOD OF CONFUSION amongst the consumer. This is a complex test.

Intellectual property is a complex area of law which is still evolving, in the software area particularly. Software can be copyrighted, trademarked, held as a trade secret, and patented. Each type of protection addresses a different element of software, but there is some overlap. If you want to secure your interests, get an attorney to do it or brush up on it yourself. Getting a cease and desist letter, much less an infringement suit, thrown at you from a large corporation with deep pockets is a mighty large headache.

@ schmo – in order to sue on a copyright infringement claim, you must register. Registry also goes to PROVE that you have, in fact, created the material before the other guy.

**this information is NOT given nor intended as legal advice or opinion. It should not be relied upon in a legal capacity for ANY reason. If you wish to pursue an intellectual property or any legal claim, consult an attorney in your jurisdiction**

freaking adviCe from SL freaks.

PEOPLE DONT BELIEVE ANYTHING YOU READ ON THIS RAG OR IN SL.

A couple minor quibbles with your description of copyright:
1) It applies to far more works than just those that you would consider “artistic”. Software is copyrightable, for example.
2) Registration is not necessary, and often not worth it. Any creative work you make is automatically protected by copyright, including your blog post and even my comment. Obviously you’re not going to file a copyright registration for every blog post. The advantages of registering are that you get to claim statutory damages and attorneys fees instead of having to prove actual damages, and the registration serves as evidence that you were the original creator of the work, if there’s some dispute about that fact.

The laws are obsolete. There is no law about “special use content” such as what we have in Second Life. But with all the crap going on around privacy and WWIV (global cyberwar) going on right now I doubt anyone that matters gives a shit about 70,000 pervs masturbating to a video game enough to redo the laws.