US Copyright law & machinima

We were discussing whether it was necessary to get film rights from content providers in SL if we use them in our machinima.

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To stay on the safe side, I try to get permissions from all the content creators in works I am associated with. We use a form on a notecard and send it to to creator if we are interested in using their location or work. Usually the answer is yes and then send a return notecard giving permission.

Many machinimists don't bother though and it made me wonder if there was any info on it.

Following up on the mention of the Philly Future Salon in the previous thread I found the following links that address this murky area:


A really fun Youtube film on Copywrite made by one of the folks at the Philly meet, Peter.

http://www.youtube.com/watch?v=CJn_jC4FNDo

Not as fun but full of the academic info again via Peter (warning - academic so you'll have to do some searching):

http://cyberlaw.stanford.edu/search/node/cyber+law

And more on point:

http://dekcuf.blogspot.com/2008/05/machinima-copyright-and-schools.html

As for me, I'm still going to play it safe and get permissions from content creators. I think this is best practice. For people hoping to make a career in SL machinima, I think it will be a good thing to learn to do before hitting the big time.

I have a feeling that if it ever became an issue, you would be proved right to get all the permissions. We all know how in RL all film makers, be they even just for a commercial, or student film are very careful to get all permissions.

think there is little doubt that that same ethic should be taken through to SL aswell.

From a personal standpoint, have to say I agree with you, I would be rather annoyed to see my stuff been used in any film without permission, not that it's likely I ever would deny it, but mainly cause they couldn't be bothered to do me the courtesy of asking.

I try and be very careful in this area. Getting in touch with the builders of your prims is not a hard job. Another important issue to note is music use. I buy music licences from a custom music supplier. It's just covering your tracks and just generally showing some courtesy I think.

I'd like to see a post from someone who actually knows the intellectual property rights laws and issues here, because I've seen posts limiting the need for movie makers to get sign-offs.

For example, if someone in RL is filming in a public location and there's a coke machine in the background, they do NOT need a copyright release from Coca Cola Company. (Quite the contrary: Coca Cola generally pays film-makers for product placements, for big Hollywood productions anyway.)

I'm confident that there are guidelines concerning fair-use or similar clauses that allow you to make films without having to track down the owner of every texture in every building in every set in machinima. But I can't back this up with any real knowledge of this area of IP law, thus my request for an answer from someone who actually does know.

Of course, laws vary from country to country. Fortunately, however, there was a big effort to harmonize IP laws internationally in the 80's and 90's, and as a result, things are surprisingly consistent -- more so than most aspects of business law. The US grudgingly made a number of adjustments in patent and copyright laws to conform to European conventions, and no doubt, vice-versa.

Note that getting in touch with the builders isn't sufficient: you'd have to get in touch with the creators of all the textures used. Copyrights cover the textures, not the builds.

Good luck finding them all! You can't even find the creator of a texture by looking at the prims. "Inspect" shows creators of prims and prim contents, but IIRC, not textures.

Woot, that "Fair(y) Use Tale" is brilliant! Thanks so much for posting it. Gotta send that to my dad, who was a patent attorney.

Watch that carefully, and you'll see that textures in buildings in machinima sets meets all the criteria for Fair Use, but without being in any of the categories (teaching, satire, criticism, reporting). So, I don't know how it really works out, and would be very interested in an opinion from someone with authority on the subject!

I don't know if there is a standard yet for machinima. I use the one I use when I work on RL TV or Film. I would get perms from the owner of a location but not for the textures. I figure the textures are covered by the original license which implies that they will be seen when used. They are not to be resold.

I get perms for any objects that are very noticeable, locations, builds and skin and hair used. And of course for all music. That's about it. And since I don't do all the buying, much is missed. As well, I'm not sure what arena freebies would be in so I don't get perms for them figuring that the creator has pretty well let his baby out into the world to fare on its own.

The rule of thumb is that whether it is very noticeable or not; whether it can obviously be attributed to a certain company or artist.

If I had a character in a Victorian SL machinima who was a Jack the Ripper type, I would not call him Desmond because a lot of SL residents would make an association to Desmond Chang. Its a matter of avoiding a claim that someone could make that the film references them in some way. In order to get film distributed, one of the insurances needed is called Errors and Omissions which is solely for protecting a film against claims of this kind.

My experience is that for the RL shows I work on, great care is taken to avoid having a recognizable trademark or logo included without permissions. The Art Dept will often make signs to cover things like that in external locations. Makes sense that they don't want to have their logo in something that causes harm to their companies reputation. Also now product placement brings in big money for a production so film makers don't want to give it away for free.

(In my years in RL film I have worked in getting clearances so I have some knowledge of how it works there. I have also worked with product placement in films.)

But machinima is new and the situation has been very open but since the Pragmatists are the new SL wave, I figure that won't last.

Copyright protects expression. Some items are not purely expressive; they have functional use as well. Typically, you are not going to run afoul of copyright problems if you are using an item in the function for which it was intended to be used.

For example, Second Life clothing textures may be protected by copyright. However, Second Life clothing isn't created and sold so that purchasers can stare at the textures; it is created and sold so that Second Life avatars can appear to be wearing clothes. So your machinima showing Second Life avatars wearing clothes probably does not infringe upon the copyrights of the clothing texture creators.

Now, I wish I could give you a link that talks about copyright an items with functional- not purely expressive- use. I don't know where I might have read about the issue, and whether I'm remembering it well; but wherever it was, I didn't save the links.

Getting permissions is probably a good practice though, whether or not they are legally required. Someone taking action against you is a headache you want to avoid, whether they can ultimately succeed in the action or not. I have a feeling very few content creators are going to turn you down.

You are right Amity, content creators are great about giving perms and it adds to the fun of doing the machinima because of their enthusiasm.

Its early days yet so really it is just a best practices at this point since there is not much money involved. I do believe in the future of SL machinima and in the future it might be a very well paid craft. Once machinima makes any money, people will want a piece of it.

So its best to be prepared.

I have also applied to Trade Mark my avatar name since it is an extension of my RL film corp and when Lively started, I was made very aware that someone could use my avatar name in another virtual world. I understand that Aimee Webber successfully Trade Marked her avatar name so it will be interesting to see how my application goes...

I honestly don't think so if it's in a 'public' space. If I make a movie and show the empire state building, do I have to get permission to show the building in the film? I don't think so, but I'm just guessing. Still, the idea of dropping a form asking permission is not a bad idea, as most people don't mind having something of theirs shown off on film. (or digital video in this case ).


http://www.secondscripter.com

As SL is a multinational platform, potentially copyright laws differ from nation to nation. Some are not even enforceable in some countries, as copyright theft is rife.

On that basis, if a movie is made spanning a variety of places and objects used in SL, it maybe doubtful you can either: Gain permissions for every item, possibly on the basis that either the original owner no longer exists, has capped IM's and does not receive your request, doesn't care to reply, LL has lost the information to the original creator etc. Imagine crafting a movie, only to find out that you do not have permissions from one creator, which has a central item such as a pair of shoes on an actor after the event? What do you do to safeguard that? Do you spend many hours/days/months securing permissions before you make the movie?

Maybe it is time to develop a spearhead, encouraging creators to post their name and contact details in a central place, that give certain levels of copyright. This would perhaps be in their interests, as people will be encouraged to use their goods, knowing they are safe from copyright.
What maybe easier, would be to encourage those that do NOT give permissions, as I believe they will be smaller numbers. Although less effective.

I have noticed some creators include a 'Terms Of Use' notecard in with their goods.

In RL, as a rule of thumb - If it's copyrightable, get clearances to use it.

Some areas of SL seem a little grey to me;
eg. In RL I don't need my hairdressers permission to be filmed with my own hair.
In SL my hair is created and could be subject to copyright - do I really need clearances to use it for the purpose for which it was intended and paid for, ie. to be worn as my avatars hair?

Definitely get clearances to use things like music or any identifiable artworks.
Get permission to use any lands etc (and it's only polite and proper to do so)

If anyone is awkward or difficult to get clearances/permissions from, just do what any producer would and use something else.

I agree Ziggy: shouldn't need to get permission for every texture that appears, just featured ones and music. Even for music it depends. For example, if you walk by a bar and hear a bit of some tune being played in the bar just as you pass, it's not a violation.

IMHO, of course, and I'm not an IP attorney. My father is, though; we've discussed these issues, and I've also spent a fair amount of time studying the info at http://copyright.gov. So, my opinion is at best well-informed, and not nearly authoratative.

Hey, I'm willing to take your Dad as more informed than the rest of us. Sounds like a good guideline.

I would say, in SL, unless it IS your own hair, I.E. created by you, then the same rule of thum would apply to it as any other item you are wearing that was created by someone else.

no, in RL you wouldn't get permission from your hairdresser, and in SL the same would be true I think. All a hairdresser does is modify something you created, modify in this sense meaning a style, but it is still your own creation. I wouldn't think you would need to get permission from someone who say modified a building you created in SL. As much as they may have modified it, it would still be your creation. in SL skin would be another one, especially if it is easily recognisable skin.

a good example of that would be eloh's skins she released a PSD's, she doesn't mind how you modify, change or anything else, other that an honourable mention that the original creation was hers

I can forsee a situation whereby SL Machinimaist are going to have to hire someone to go over their movies with a fine tooth comb, to seek permissions from almost every element used. Then the credits will become like RL, for the vast majority of machinima produced, this will become longer than the movie content itself.

... the real issue here is that there is no interpretation for law as far as use of every texture and prim in a machinima goes. The truth won't be known until someone goes to court and that court issues an opinion on the subject as part of its ruling, and I'm sure many of us aren't willing to do that.

Because of that, the rule of thumb should be to ask when you can, if you're making something that isn't supposed to make you money. That way, if someone comes around asking you to C&D, you remove the offending object and go on about your business, or stop distributing the movie file and blame the genie-bottle effect if the movie still circulates.

Seeking damages over a free Second Life movie would be ludicrous.

If you're making a commercial project, then you ought to put an entertainment lawyer in your budget as a matter of principle.

Depends on what your interpretation of 'making money' entails, if you mean a couple of thousand L$, well we are talking 4-6 USD? I'm sure an 'Entertainment Laywer' would not work for those values.. so a mute point.

When we do work for RL companies, then we expediate every means in our power to discharge any copyright conflicts. This usually means we make everything for sets, and even clothing, animations, scripts, music etc etc... we also work closely with known creators/designers in SL that are paid well for their work, or we do a deal based on sharing creditation in the movie. All our actors for RL work, are all under release contracts, and again are paid formally with invoices and transaction trails through our accountant. We are also part of the InSL scheme, which is included in the credits to very strict formulas. All this is costed within the contract.

This for me, is what is real and what is not.

From that document:

I read that bit Lear, about incidental inclusion. I think I'd still be a bit dubious about music, however I'll look into it more. Obviously your dad will be well informed.
I'll contact some bodies about the use of music per se in machinima, how things stand with regard to publishing and mechanicals .

What interests me is the use of sl created content, such as skins and hair - where the copyright exists to prevent the theft of such, but their use in machinima is very unlikely to be central to the film.

I'm glad I came across this interesting thread (Thx to Bettina Tizzy's blog). I am a documentary producer/director in RL and I also dabble in machinima. However, coming from a factual background, I have a slightly different take on this.

We have a concept in the UK called "fair dealing" which applies to news and factual TV. Its my understanding (I'm a producer not a lawyer) that his acknowledges the impossibility of always getting full permissions when covering breaking news stories or shooting documentary scenes for factual content, and it also allows for the use of clips of music or film for review and or comment.

It is clear to me that it is best practice to seek permissions before making a machinima that features a particular build. But if it's something controversial or interesting, should we be allowed to blog about it regardless?

That said, in the real world.... when we shoot a documentary, getting a release form signed by every person, every shop owner and so on in every shot in, say a street scene, is impossible. The two worlds are not so different in many ways. Most of Second Life is a kind of public space and in that respect it could be argued that by simply putting your avatar or any creation in a publicly accessible sim makes it liable to be recorded by others.

In RL, too, everything is designed by someone and the copyright is protected by law, but that does not mean that if I'm filming a street, I need to get the copyright clearance to use the image of each car that passes from the respective car manufacturers. Similarly, it would be impractical to examine the shoes on each person walking down the street and then send off letters to Nike, Adidas, Jimmy Choo, etc...

One difference I suppose is that in RL it's pretty clear that you are filming, people can see where the camera is pointing and avoid it if they want, or even approach you and insist that they don't want their image used for anything, whereas in SL, the filming can take place by stealth.

If I am going to feature a particular avatar that I would always ask them if that's ok, just out of courtesy, but I would argue strongly against any legal requirement to do so, particularly for incidental appearances.

An associated legal point from a UK perspective... if you view something on your computer in the UK then you are deemed to have recorded it, regardless of whether or not you made a screen capture. Hence prosecutions under obscenity laws connected with online images are usually framed as "making indecent images", even if the images are recovered from cache files on your computer.

I am involved in the making of a film in RL and SL, for distribution to broadcasters and theatres. It is a genre-bending concept but much of it will be shot in a documentary style, as actuality. Under those circumstances, we can't predict who or what exactly will come into the frame and as such we will just have to see what happens.

In terms of music the rules here are very clear and you have to clear music, incidental or not, before use. Often different prices apply depending on whether the music is used as background, featured, or theme music.

Some far sighted labels, such as Magna Tune allow licensing online and it is often free for non-profit productions. But it would be unfair to expect to add value to a product you're going to sell by using music for nothing.

I agree, for the most part there is always the 'incendetal' not deliberate inclusion in a movie, on the principal of just being in shot/view, as opposed to a deliberate act.

If you extend those principals to something perhaps not of association to the point of copyright, if you attend a contest in SL, say 'best in blue' and you win, should you not disclose the creators of the outfit components you are wearing, or indeed, should the creators not get the prize, assuming you did not create the full outfit yourself?

If we make a deliberate commercial or advertisement for a client, is it not fair therefore, that we focus on the clients goods as being central to that media? Or should we always include the platform Second Life(tm), perhaps the software used for capture, the editing programme, you could extend that to the Internet provider giving you the ability to connect and capture the media in the first place. This may all sound a bit far fetched, or even stupid, but I have to ask where the line is drawn. If there is abiguity surrounding what is, and what isn't 'legal', how is a simple layman supposed to cope, when they think they have considered every possible angle only to be 'caught out' by some sharp eyed knowledgeable person, who spots something that was innocently overlooked. You may suggest that machinimasist employ the expertise to make sure that doesn't happen, but I wonder how many would take up that task for a percentage of the profits measuring in a couple of thousand linden dollars. Is the alternative that all media created within any VR platform be subject to a minimum cost of a couple of thousand USD, to cover the 'legal' costs?

If items/people are deliberately included within the main theme of the media, then yes of course, permissions sought be sought. Can anyone truly imagine that a major court case would revolve around a commercial made in SL for a SL individual/company for the total contract sum of around $100 USD, would happen to gain damages, when in reality, the vast majority of cases, a simple IM could resolve the issue amicably? I believe the vast majority of machinimist in SL are more than happy to include aknowledgement in the credits. Whether the client would want them to share in their credits, maybe another matter. That would open another can of worms.

I'm no expert on UK law. But it sounds like what you describe as "fair dealing" in the UK is analogous to "fair use" in the U.S.

As stated by the Copyright Office FAQ, "Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports."

http://www.copyright.gov/help/faq/faq-fairuse.html#howmuch

And just to highlight some of the things that others have said on this thread, the Copyright Office's flyer on Fair Use notes that, "The distinction between 'fair use' and infringement may be unclear and not easily defined," and concludes with the advice, "The safest course is always to get permission from the copyright owner before using copyrighted material."

http://www.copyright.gov/fls/fl102.html

Very intersting Treat ,
It woud be posibly similar to real Filmrights too as mentiond bevor.
For Europe ther is a general rule that shooting in public for Documentary is legal .
As long ther are more than 10 Persons / Avatars around it can be count as public.
So if Linden allow filming and screen capture and the landowner too ther shoold be no need
for extra permissions for filming or taking picture ther.

Exeptions are if the landowner decline in ther land Covernant any Filming or Photos from ther Sim , second exeption woud be a comercial use of the Mashinima / Film like in real life too or for a real live Brand .Than it could come easyly to a real cort case if some ceator feels cheated.

I dont like the over regulation at all it destroy the creativity and only supports big Brands and Companys not the average SL creator.
All the Discussion on IP rights Copyrights get bustet all over the SL Forums. Just wounder if after all get cleared out DAZ and similar Content Companys will bunch in and than you can forget the User generated content at all .
But this is a other sory ...

For me a open Question would be whats rights count more 3D Copyrights or Filmrights
as its a Software Game but also a Filmmedia and public conent . At least the next 10 Years the lawyer have to fill all the gaps and grey zones in rights for virtual words in general .