Advice on copying, DMCA, etc...

So.. yeah.

Today, I found out that someone has released a...

No, let me start from the start.

My partner and I are the creators of the Lost Ferals, quadruped animal avatars.
Each of these have about a grajillion animations in them (ok, more like around 100, but it sure feels like a grajillion), all of which use the base animation I come up with that forces the humanoid AV into a quadruped.
Not the easiest work in the world, but it's fun.

So today, I found out that someone else has released a wolf, remarkably similar to ours.
My first reaction was to be flattered that someone thought so highly of our stuff, they'd try to do something similar.
But, after purchasing? Well, remember I did say "REMARKABLY similar"...

At first, I thought that our product had been copybotted or something, but I looked closer and it appears that these guys have actually just recreated our animations from scratch, using ours as reference. This is my guess, as each animation, and there are MANY, as I said, is JUST different enough that they're not identical. The "Rolling on your back" animation has different movement in the hands, the sit is slightly different, the walk and run are timed slightly different, etc...

This is OBVIOUSLY a rip off of our product, but it seems that they've made every part themselves from scratch (If anyone would like to see, drop me a line in-world for a comparison).

Anything we can do? Is it ARable? Worth DMCA-ing?

We're at a loss here and... well, I'm getting pretty close to losing my temper.
It's frustrating that someone can do this and get away with it.

Anyway...

any help is much appreciated.

Ah now i get it- i idn't understand when u were talking about it in-world. I don't think you can do anythng- I am no expert of course. But if they basically rebuilt it from scratch then all they did was - build it - I don't think you have a case- again- I am no expert but it doesn't seem that way to me.

I'm getting that impression, Amaranthim, the more I research.

Ugh.

Such bullshit.

Isn't this like when that guy did a copy of Whinge's chibi fox, except he didn't spend nearly as much time copying it and didn't clone the animations? I'm not talking about the copybotted one, but the lookalike that's still for sale in-world.

People are always copying things, sometimes at a high level where the idea's borrowed (like Uchi's cat eyes, it seems like everyone's using something similar now) and sometimes with something that's close enough that you have to look twice to tell the difference.

You guys have such variety in your work that you don't have much to worry about.

Thanks, Argent.

I'm just pissed (and completely confused) that someone would put THAT much work into making something, then just copy stuff almost exactly. It doesn't make sense to me.

Anyway... thanks for the kind words.

A blatant copy even recreated by hand can still be copyright infringement, the real test includes "substantially similar" rather than "verbatim". The other part would be to make a convincing argument that they didn't reinvent the idea independently, that it's clear they had exposure to your work.

Sid and Marty Krofft were able to successfully go after McDonald's because the McDonaldland characters were ripoffs of H.R. Pufnstuf characters (it helped their cause that the ad agency for McDonald's approached the Kroffts before going their own way). The characters were not, however, identical.

This kind of infringement does take more work to prove, so you would likely need to go the expensive route if you wanted to press the issue. It's not going to be an AR thing, but a DMCA notice might be appropriate. For this one, you really would want to check with a land shark and not do it yourself.

I totally understand you and I am full of HATE against those who don't have any skills to create anything on their own and need to use any tools. I do understand you and your situation and I do believe that there is a lot of hate inside you. There must be even more hate inside you but you need to behave and control here because you run a business. But believe me- nobody blames you if you open your mouth and shout it out.

It has become so easy to copy AND control everything and everybody. Most people still don't know about viewers like Cryo and VLife and other hacked ways, that is one of the reason why I started two Threads. And there are still many people or users who think this world is a save place but in fact Linden Labs and Linden Labs servers are under control by other people.

I'm going to assume that this is a translation problem *smile* and you're saying that I must be angry or frustrated. I hope so anyway. *grin*

And yes, we're taking a look at all our options. We don't want to hurt anyone or stop them from having a similar product, but come ON... there's gotta be SOME differences, no? SOME originality. There is none in this rip off.

Not having seen the products in question... If your original works are highly stylized, and they copied your style, you might have a case. If your works are in the more general "make a realistic quadruped animal avatar" line, you probably don't. Because you can't copyright an idea, only the expression of an idea. So if your avatars are of a more realistic kind, then no, that is an idea and they have merely used the same idea. And I can see why; it does sound like a good idea. If, on the other hand, your avatars have a very distinct style and they have copied that, then you have something to protect. The scripts for animating a quadruped? If they created those from scratch, they can't be protected. After all, you got the idea from a bunch of animals. : )

Oh, they were all members of the Lost Ferals group (I think) and I know they own at least one of our Wolves. So exposure is covered. And I think anyone looking at them would see that they are SUBSTANTIALLY similar. In both meanings of the word! *grin*


That's our second step. Our first will be to try it socially, letting them know we're aware of it and that we are looking at various ways to deal with it.

Thank goodness I know a couple of lawyers that are willing to look at stuff like that for the price of a beer!

What they've copied, in part, is the animations. It is blatantly obvious when you see them that they've copied movements, poses, etc.

Again, not the files, but they've quite obviously based their animations VERY closely on mine.

Its the same in real world where many ideas are copied and modified. Almost every successful creation in both worlds SL+RL has been copied. The line between illegal and legal is very thin and has been always the reason for trouble and it will remain so.

I don't think its legal if you steal a part of the original and make a new creation out of it.

OMG!
In fact they have to worry about their variety!!

You probabl have an expensive court case ahead of you, if you are interested in persuing this. My guess would be plan to spend 25,000$US up front at the very least. Possibly tremendously more expensive than that when all is said and done.

A DMCA notice will just result in them responding that they did not copy your work, it just happens to be similar. The content will remain on SL. The purpose of the DMCA "take down" provision is to protect Linden Lab, by letting them not get in the middle of your fight. It is not to protect you. Your recourse is to go to a court.

(Actually, after you file DMCA, LL does the takedown, the other party responds with a put-back, then LL will put the content back up within 10-14 days. You can prevent this by having your lawyer file a lawsuit against the infringer and request for an injunction with a federal court and notify LL that this has happened. At this point, you are open to a counter-suit by the other party and had best be prepared for a serious fight. The other party will seek to prevent the injunction and will probably get the content put back up. And they will also sue you for legal costs and real damages to sales, reputation, etc. That's all preliminary: you still have a copyright infringement case on your hands. I hope you have great lawyers who specialize in this area.)

The cost of legal actions is why there are not a lot of lawsuits over SL products. People are not prepared to play with the big boys in the real world, with all it's real world costs, for things that are only a worth, in total, a few thousand dollars at most.

All that being said, you could try just filing a DMCA takedown notice and maybe the other guy will totally back down without any fight at all. Especially if they know they are wrong and liable to lose a legal battle. I would make sure your lawyer writes the infringer a nasty letter explaining how expensive it's all going to be. Writing a letter probably cost 100$US. I don't know how much it costs for your lawyer to force Linden Lab to reveal to you the identity of the infringer to whom you will send the letter.

I feel strongly that people have rights to their creative works, and they should enforce them whenever they need to.

By the way guys i have to fill a DMCA takedown on all of you, and then drag your asses into court because i own a precedent IP on the "wolf" , "ferret" , "human" and "humanoid with animal features" concepts.

Sooo... get ready with your wallets, Intellectual property violation is a serious crime.


Joke aside, there is a difference between copybotting and creating derivative work guys...

Copybot is a technology for exactly duplicating someone's work: the result can be a copyright infringement. It is possible to copy things through other means.

A "derivative work" is where someone starts with a copyrighted work and modifies it, so that it's not exactly the same. But it is partly an actual copy of the original, and you can prove that this is so. (If you can't prove that, then it's not an infringement at all -- it's just something that happens to be similar.)

A derivative work is an infringement, unless (written) permission has been obtained from the author of the work from which it is derived.

However, ideas cannot be copyrighted at all. The phrase "derivative work" does not apply here. Anyone is free to make any kind of wolf or robot or whatever, because you cannot copyright the idea of something. Copyrights only attach to particular expressions of (some) particular things.

By the way, "copyright" is not a single thing. There are a variety of rights, and there are a variety of things to which those rights can be attached. However, most things in Second Life (such as textures, avatars, writings in notecards, plays, and of course objects made of prims, and scripts) can have copyrights attached. It's not entirely clear to me exactly which rights attach to all the things -- some of the things might be covered in more than one way! Another thing to know: Copyright is automatic. The moment you create something in SL, it is copyrighted. No "copyright notice" is required. However, copyright notices in the proper form and timely registration with the government will make your legal case stronger and easier to prosecute.

Finally, please don't confuse Copyright with Patent or with Trademark. Those are other cans of worms, entirely different.

http://en.wikipedia.org/wiki/Fair_use#Common_misunderstandings

Your point is?

my point is if it is'nt an exact copy it might not be a clear cut case of copyright infrightment.

There is such a thing as a "look and feel" argument, but in this case it could be a hard fight.

Famous applications: Apple Corporation and anyone trying to make anything similar to their products.

They fight tooth and nail, have lost frequently but have also won a significant number of cases.

http://en.wikipedia.org/wiki/Apple_Inc._litigation

* * * * *

From what you present here, it sounds like your look and feel was copied to a degree that is significant. But I doubt there is much of anything that you can realistically do about it, other than name and shame.

Back when I was creating content, I remember seeing people literally try to build duplicates of my items *in my own store* ~ I fully share your frustration.

thanks for all the input, folks. I really appreciate it.

I've pretty much resigned myself to the fact that there's probably very little we can do with regards to this, but we're still going to try. There's got to be some sort of protection against this sort of thing.People shouldn't profit by outright copying someone else's products.

My struggle, I guess, is "Are animations just ideas, or are they protectable? How much does it have to be different for it to be ok?"

I dunno. Just frustrated. It don't seem right.

Long ago one of the family decided to make a fishing setup with a different arrangement than the "Famous" one thats still in world. He was concerned that his would be subject to DMCA takedown and lawsuits so he talked to a linden. The linden really didnt want to give a straight answer but when pressed hard enough said the "Famous" one couldnt copywrite fishing. Myb ro built his but never put it for sale. It was substantially different in mechanics, fish, and function but he decided NOT to risk it with making it publicly for sale.

Just so it's clear. It's not the fact that he's created a quadruped wolf that is the issue. Heck, we're cool with him copying some of the ideas for features and stuff.
It's the fact that it appears that he's copied many, if not most, of our animations and made small changes to them.


(Breaking news. Just got a notecard from a concerned party (Full disclosure: this person is in the Lost Ferals group, but I've never met them before this...) saying that he claims he DIDN'T use our product for reference. This was not as a result of a direct question. He just said it, out of the blue, apparently.
This boggles my mind, as the folding done to the body to make it work was never done before, not like this, and suddenly the exact same idea pops into his head, out of nowhere, a year after he bought one of ours? Seriously?

Sorry... I'm babbling. I stop now.)

So, yeah...

It's not that he's making a similar product, it's just HOW similar it is.

There is only so many ways to fold a human body in an animal shape, you can't really claim only you have the right to do it...

Sorry to poke in again, but I just read the link to Wiki's article on Fair Use and, quite frankly, this instance is, as far as I can see, in no way fair use. It breaks almost every one of the the points...

It's derivative, not transformative.
The copied stuff is intrinsic to the product.
and, seeing as it's pretty much the exact same product, the use of copied stuff certainly does infringe on "the copyright owner's ability to exploit [their] original work".

I guess, as I said before, the questions are: "Are animations and BVH files protectable works?" and "How similar does it have to be?"