From: Tarina Sewell
My question is this, are these legal to sell on SL if you do not have permission? Or is it a copyright infraction?
This question comes up a lot. The answer is it's not legal to use someone else's brand name or distribute someone else's material without permission from the copyright/trademark holder. You can't sell it, give it away, or otherwise distribute it.
To use somebody else's logo and/or brand name without the permission of the owner is trademark infringement. To use somebody else's material (picture, printed text, etc.) without permission is copyright infringement. Both are illegal in most countries, and considered immoral in most cultures.
From: Tarina Sewell
And how do you know if they do have permission to sell it?
You can never really know for certain, but generally, if a RL brand has an official presence in SL, they make a big deal of it. CBS, NBC, Nissan, Pontiac, Ben & Jerry's, Herman Miller, and many other companies have their own official in-world content. It's pretty easy to find any of them if you look. But of course, that doesn't mean people don't still rip off their IP anyway.
If Suzie Q. Avatar is selling supposed Gucci bags right next to supposed Armani suits and supposed Victroria's Secret lingerie, all in her own little shop at some random mall somewhere on the grid, it's a pretty safe bet that Suzie is using all those names without permission. However, if you find yourself on Victoria's Secret Island, with a dedicated, high quality build, branded every which way with that name, and with links to their website and RL catalog all over the place, then you can be reasonably certain you're dealing with the real company (not that Vicoria's Secret Island actually exists).
That said, it's NOT illegal to produce knockoffs. A knockoff is an imitation of the overall design of an item that does not copy the real brand name. Under copyright law in most countries, the design of any garment is considered to be functional, not artistic, and since copyright has nothing to do with function, it cannot protect clothing design. The same is true for furniture, luggage, and many other items. This is why in RL, you can buy that real Versace dress for $3000 at Nieman Marcus, or you can head to the other end of the mall and find some no-name dress at a no-name department store that looks just like it for $300.
However, the patterns printed on fabrics, and in many cases, the actual thread-weave of the fabrics themselves, are copyrighted. So, while you can copy the basic design of a dress, you can't copy whatever print might be on it without permission. You either buy the same fabric if it's available, and you make your dress out of that, or you use something completely different. You don't try to copy the fabric from the original yourself. That would be illegal.
As for photosourced, or even hand-painted, immitations in SL, that's a subject that is debated all the time. A catalog photo of a dress is of course the copyrighted property of whatever company puts out the catalog. To redistribute that photo without permission is copyright infringement. But to take the photo, alter it so significantly as to make it fit on the SL clothing templates, and turn it into 3D virtual dress, well, it's really hard to say if that's infringement or not. At what point do the alterations become significant enough as to no longer be a copy or even a derivative work, and to become a new original? That is highly debatable. It's a subject lawyers, legislators, and just about everyone else, will continue to argue over for many years.
Whatever the case though, you don't label it as being the real brand if it's yours. That is trademark infringement, and there's no gray area there.
From: Tarina Sewell
And are these infractions -if they are- even enforced?
They are enforced by the courts, and to a limited extent, by Linden Lab. But the onus is on the copyright/trademark holder to get the process started. LL won't generally police the grid proactively. There's just no practical way they could do that. It's not their job.
LL is an online service provider, and like all such providers in the US, they are compelled to comply with the Digital Millennium Copyright Act (DMCA). It's not their role ever to make any judgments about who is the rightful originator/owner of a copyrighted item, so don't ever expect them to do that. Such things are for courts to determine, not private companies. The role of a service provider is simply to remove allegedly infringing material from the service upon receipt of a properly submitted DMCA takedown notice.
So, if you believe your own copyrighted work has been copied and is being distributed in SL without your permission, file a DMCA takedown notice (properly) and submit it to LL right away. They will remove the alleged copies. The accused infringer can always file a counter notice though, which would result in the stuff being put back up. After that, your recourse is to go to court.
If LL never receives such notice, then it's not their place to go looking for stuff to take down. Their job is just to run the service, not to make judgments about copyright.
In other words, all the same copyright and trademark laws apply in SL that apply in the real world. SL is a service used by real people, and real people are governed by real laws, always.
From: Tarina Sewell
I know if I listed something on ebay from a top designer, I better have the recipt or proof it is what I say it is or they pull it.. So since real money is involved in Sl too I wonder about this.. usually I dont have to worry about that since I sell vintage jewelry, but occasionally I come across some items ebay considers are potential counterfits.
I'd be really surprised if eBay would just pull your ad down because you don't have a receipt. How would they know whether you do or you don't?
As a service provider, just like LL, they're required pull down anything that infringes copyright upon receipt of a proper DMCA takedown notice. However, for someone to claim an item is something it's not doesn't necessarily constitute copyright infringement. That's why eBay has a rating system, so that people can make some sort of a judgment about how honest a seller is, based on the reported experiences of other customers who have dealt with said seller. That has nothing to do with copyright.
If you put up an ad that said "Harry Potter and the Deathly Hallows by Tarina Sewell", and you tried to pass of J.K. Rowling's book as your own, that would be copyright infringement, and they would pull your ad. However, if you stuck a bunch of blank paper inside a Harry Potter book jacket, and said "here's my old copy of this book that I don't want anymore, so you I'm selling it", that wouldn't be copyright infringement; that would be fraud. eBay of course will not tolerate fraud, but they usually have no way of knowing about it until after the fact. It would then be up to the buyer to report the fraud, after which eBay (and the buyer) might or might not take appropriate action against you.
