Copyright issues: usage and manipulation

[ the following post / thread has been written without prejudice and malice. It reflects solely the views and opinions of Fizik Baskerville. ]

Hi, I was asked inworld to help three texture designers about 'usage rules' on stock photos/images.

I thought I would post it here also.


Stock Image Usage:

This is an incredible ‘grey’ area in terms of usage. The bottom line is do you have usage permission from the originator or the managing agent? Usage is based on exactly that ‘usage’ – print, advertising, web etc.. All images are usually assigned to designers under these specific terms:

The following applies to Google Image or Stock Image searches:

Rights-managed

Rights-managed products are licensed on a use-by-use basis. The fee for using the product is calculated from several factors including size, placement, duration of use and geographic distribution. At the time you order a rights-managed product, you will be asked to submit information that will specify the usage rights to be granted.

Royalty-free

"Royalty-free" means that you pay only once for an image, film clip or audio file that can be used for multiple projects over an unlimited period of time. Since royalty-free products are sold on a nonexclusive basis, customers often choose them as a complement to a design, rather than making them the primary focus.

Royalty-free pricing is based solely on the size of the product you need, not the specific use. You don't have to pay any additional royalties on a use-by-use basis. Once you purchase a royalty-free product, you may use it multiple times for multiple projects without paying additional fees. (Pornographic, defamatory, libelous or otherwise unlawful use of any image is, of course, prohibited.)

The big issue here is, you have to own the Royalty Free image license (i.e. you physically own the CD with stock free RF images), it cannot be transferred to you by another person. They hold the Royalty-free license, its not transferable:

Royalty-Free Use Protection

"Use protection" guarantees the customer that Images will make reasonable efforts to avoid re-licensing the same image (or its similars) to any other for the same use, within the same territory, and during the same timeframe, regardless of industry.

Now all the above is horrible. It’s really designed to protect against ‘print’ and ‘advertising’ usage. The Internet (even Second Life) is still muddled and ambiguous.

The point is, Royalty Free doesn't mean public domain.

Image Manipulation: Photoshop it to hell!

The rule of thumb as follows:

Get an image; manipulate it enough to make it unrecognizable from the ‘original’.
Percentage: Use of image degraded (cut&copied) to 10/20% of the original.

In terms of SL, this would mean taking a ‘sample’ or ‘section’ of an image, which you then use for texturing. Also, make sure you don’t use a recognizable part of a brand: Coke logo, Burberry print etc.

This applies to Stock Image or Royalty Free/Rights Managed Photography: film and music is a totally different (nightmare) conversation.

At the end of the day, if you have any doubts or concerns you should consult your lawyer (or/both country legal equivalent web site).

Ok. So if I:

- take a screen shot of a texture that someone else has purchased a license to use

- take a texture from my cache that someone else has purchased a license to use

- am given a texture by someone where they have purchased a license to a set of textures


then Photoshop it until it appears to me to be only 10-20% of the original, I can then use it, sell it for L$, sell it for L$ & trade them for US$, give it to someone else, give someone else an object on which I've put it?

If so, that's very different from what I've understood for years.

Candie

Edited to say:

One more -- say a company or artist sells clothing textures on the internet, and rather than purchase a usage license, you take a pic of their renders from their site, photoshop it to get 20% of the pic -- the clothing -- make clothes in SL, sell them for L$, and then trade the L$ for US$ on GOM?

Good to know Fizik, thank you for the info!

Fizik & Candie -

For me it's about intention - to knowingly copy other company's or people's copyrighted work without permission and with the intentions of digitially masking it for re-sale, re-distribution is IMHO, not honest.

The 10 - 20% of original use maybe be what's done in the industry - but I'd say, hey, that does not mean this is not illegal. and again, IMHO, it is clearly unethical.

wow, very good to know fizik, thanks!

I might be wrong about this but it's my understanding that clothing cannot be copyrighted. Patterns and prints on textiles can be though. Arguably the photos of the clothing on an e-commerce sight can be considered copyrighted, however adapting them to the SL teplates requires substantially reworking the image. Admittedly it's a very grey area.

If someone like GAP saw their products inworld I would imagine they would either not care (it is free advertising after all) or ask/demand that their company name went with their product. Truth is though that if you see a pair of khakis im I bet you would be hard pressed to id them as a particular brand. Certian clothing (old navy tees) are easy to id but most are not so easy. A hoody is a hoody is a hoody, only sold at different stores with a different tag & price.

Considering the events surrounding the opening of our Real Online Store with Licensed Second Life Trade Marked apparel I have spent the better part of the last two days on the phone with Lawyers.

Copyright is a very tenious thing at best considering. For better Information goto www.copyright.gov there is a FAQ there that covers most questions.

Thing about Copyright is this in order to "properly" Sue it is the responcibility of the infringed party to prove fault.

(note to Beryl this is not an assault or attack against you in anyway. With owning a Real World buisness and having a Trademark License that deals with Second Life. I had to find out Information about a situation which was carried out in a professional manor. I do thank you for pointing the possible infringement out to us and out of respect we did remove it as to relieve any possibility of it until we could discern what the real stance on things were.)

The incident tha occured with the "tree" that was in our picture in all rights could not be proven to the point of any damages or us having to pay for the infringement. Because of the following reason.

This information can be researched and refound on the copyright.gov site and the Library of Congress under the Legislation about the DCMA. Or contact a local buisiness lawyer that deals in intelectual property or Copyright.

The Image in question or texture was not registered with the copyright office.

The Image was a derived work meaning the orginal texture was created elsewhere and therfore the copyright could not be claimed.

Proof of infringement lies in the hands of the party that was infringed upon meaning until the matter was resolved the infringed party would bear the burden of all the legal fees submissions and attorney fees.

With the Image not being registered with the copyright office no punitive damages could be awarded. However, Registered Imagery can carry up to a 20k punitive fine per infringement. Also with it not being registered no legal fees could be recouped.

The problem with Copyright and Imagery is this. Unless an Item is "TradeMarked" (not copyrighted) like say Disney or Sea World a person taking a picture can claim "Fair Use" under DMCA meaning if the focus of the Artwork was not on the "infringed" item and if the "infringed" article could be removed or "airbrushed' out of the picture and not detract from the pictures orginal intent then "fair use" applies.

(In most cases if this is the case it is beter to remove it but with fair use applying you would not have to but tis better to be safe than sorry so as advice just remove it.)

(also note as long as no capital gains occured and the Item was pulled due to a possible infringement a lawyer will not pursue it as it could have been a honest mistake and common sense laws apply.)

However a Trademarked Item Such as Disney or SeaWorld those Items cannot appear in any public print unless "Licensed" by one of those entities.

Example: You own a RV Store in your home town you take the family to Disney World and you Take a picture of your family in front of your RV and in the Background there its the Epcot center. You get home and decide that the picture would make a great billboard for your business. Well the min you put that bill board up with epcot in the background and you dont have a license expect Disney to be knocking at your door asking for their 20k oh and multiply that by the number of billboards you have as well. If you Airbrush epcot out of the skyline and use the picture your safe.

Copyright is hard to prove and when a search is done at the Copyright office and the Image in question cannot be found on file expect a lawyer to come back and tell you "I'm sorry but with it not being registered there is no point continuing." Unless it is a Blatent Duplication. What does this mean in this particular case were we to totaly recreate Beryls tree down to the last leaf and then set it out as our own. Beryl would have every right under the sun to pursue copyright as well as 10 other statutes which get lengthy to get into. Basicaly falls under Reverse Engineering not copyright which then falls under Patent.

In Reference to what Fizik said unfortunatly is "True" because of the burden of proof lies in the "infringed's" hands. Most lawyers will not take a case unless certain criteria is met and the biggest one being...Is the Image Registered"? At $20 a pop we would all go broke registering our Textures/Avatars/buildings ect.

The biggest thing I see at this point is Common Respect consideirng 99.9% of the textures in world have been derived from another Image,Texture or work. Common Respect being we get permission from the owners. If permmision cannot be obtained then you cannot publicly produce imagery that can be sold. This is Federal law not Second Life TOS.

Out of Respect for Beryl when she noted that there was a "Possible" infringement we took the Item down as we didnt realise that it was there. With what we know now we will not be putting "that" particular image up out of respect to Beryls implied Copyright. With what we know now we have restructured our venture plans and again will be moving foward with the. We are here to promote community involvement not Community Discention. Its why we created www.slvisions.com in the first place.

This information I have portreyed here I am giving Free rights to pull down and have people bounce it against their lawyers to see if my meager interpretation was suffecient.

In any event it is best to err on the side of caution with any "texture" or Picture taken in the world. If you ever plan to sell the Image make sure your bases are covered.

A lot of the information provide by me and by others here are correct for the most part. I know mine may contain a minor mispelling but the concepts it portreys is as how I understood not percieved the laws I was informed about. This information is passed out in the deepest concern for the community as a whole as it grows.

Thank you for your Time and Listening and Beryl thank you for helping me learn more that will save Pahoa and I grief in the future for that I am eternaly greatful.

Sincerely, Shadow Weaver

Excellent!

n.

I think the real answer here though is: Be reasonable, Be responsible, Be creative. Be Honest.

Mine was less of a question and more of a statement, but that's ok. I was saying what you said.. only you said it in more of a "proper" way.

Im not seeing a question about ethics - was there one?

Anyone?

Merwan wrote:


Fizik & Candie -

For me it's about intention - to knowingly copy other company's or people's copyrighted work without permission and with the intentions of digitially masking it for re-sale, re-distribution is IMHO, not honest.

The 10 - 20% of original use maybe be what's done in the industry - but I'd say, hey, that does not mean this is not illegal. and again, IMHO, it is clearly unethical.

Ahh - nope no question have i.

Fizik, you seemed to have missed my post. Could you address my questions as well as the others? Because as I said, what you're posting here is very very different from my understanding.

Thanks,
Candie

Dear lord, contemplating all this makes my head hurt, honestly. It's a real catch-22 to make clothes for SL that are derived from RL images; those are the ones that seem to sell the best, yet those are also the ones with which (it would seem) one runs the greatest risk of committing copyright infringement unless one take the pics of said clothing items oneself.

Thanks for sharing the knowledge you gained from a lawyer about this, Shadow. All I can say is I have a lot of respect for you and Pahoa for negotiating the minefield of RL marketing of essentially digitally created items. I don't think I'd have the nerve for it.