Derivatives are Copyright Infringement

There's a huge amount of grey area actually. If you take a photograph of a building do you then own a copyright on the building itself? Methinks not. As I said before you cannot directly copyright a piece of clothing. Only the textile patterns on the fabric. If you can find a clear statement of copyright law with regards to articles of clothing, be my guest. I've searched. If someone looked at your photograph of a building and even sampled elements from it directly to recreate that building in another medium, it would not be a violation of your copyright on the photo because there are no remnants of your composition. That's not to say that an overbearing clothing conglomerate wouldn't hire an expensive lawyer to try and set new precedent, but I couldn't find anything that would apply. My knowledge is by no means definitive, but it's most definitely not black and white no matter how much you try and paint it that way.

The photo is in copyright. I'm not convinced it becomes an item of clothing in another medium - I think it remains a digital image. Therefore you are making money out of someone's photograph.

What might be more interesting is whether you can publish the photo of the building. There is a book you can get on UK law for photographers which covers these sort of issues (I'm not a good enough photographer to care tbh). Buildings are apparently copyrighted here.

None of this is black and white - and the law varies of course depending on which country you are in.

From my time at Wikipedia I remember that people tried to claim *anything* was fair use. Wikipedia at least was an educational project.

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If someone used one of my photographs to make a texture which they were selling in SL this is how I would see it -

You have taken my texture, amended it slightly (altered brightness, made it seamless etc). You have uploaded it and make money out of it. *However* I release my photographs under Creative Commons CC-BY-SA. This is a copyleft license which is fairly liberal as far as these things go.

Are you in breach of the liberal, artist friendly license I release under? Yes you are. I personally wouldn't care about the SA (share-alike) element if you sold with full permissions. I don't use NC so the commercial aspect wouldn't bother me.

However you provide NO ATTRIBUTION. You pretend it's all your own work. You break the BY section massively.

If someone decided to do this to me what would I do? Well it wouldn't be worth sueing them, and proving that you are the original creator could be difficult. I'd certainly think this person was utter lowlife however.

It is no longer distinguishable as the photograph. It could have been done with any photograph of whatever it documents. If someone takes my picture and then I become famous and make a lot of money from my image, I don't owe a royalty to the guy who took my picture. Do you understand what I'm trying to get at? The photograph in this case is simply a document of something on which there are no clear copyright laws (that I know of). The photo itself is a minor side issue since a photosourced clothing item in SL has no elements of the photographs themselves - no composition, no hired model, no pose... all that's left is what the photograph was of. If there's a copyright issue it's with the clothing item, not the photographs of it, again because it is no longer distinguishable as the photograph.

This is the part where the bricolage chums freak out.

I semi-jest on that, but it reminds me of a contested area in my previous area of expertise, electronic music, where sampling is rampant. Somehow the misconception had gotten around that "It's legal to sample up to 1/5/10 seconds of someone else's song but beyond that it's not", when that is, in fact, quite an untruth. Of course, enforcing that is an untruth as well, when you have certain court cases dealing with obscure samples and the original copyright holders coming out of the woodwork, but has anyone ever been hauled to Judge Judy's favorite place for using the Amen break? (Would take a lot of lawyers to prosecute all of that -- and a large chunk of drum 'n' bass, LOL.)

A lot of it comes down to money. If the prosecuting party thinks they can squeeze you out and rake in the $$$, then it's a lot more likely that will be done, as opposed to a mere legal matter on principle.

But really, for all practical purposes, more contradictions...

Some say the laws are only as good as the people who make them.

Others will argue the laws are only as good as the people who break them.

And there's more after that!

I know, I know, we get on the copyright merry-go-round every few months, but I think it's probably good to re-hash it again for new peeps, even if there are different opinions and no definitive answer.



I do agree with this. There's no question, in my mind at least, that this is infringment. That digital image is under copyright.

However, from everything I've read (not being an Copyright/IP lawyer myself) legally there is a grey area regarding how much a derivative work has to be different, especially given the impact of new media in the last decade. And that grey area is probably the domain of a judge who would interperet the laws currently in place.

Do SL designers photosourcing their clothing need to worry about this? I dunno, I guess it depends on how big SL and virtual worlds become. Avatar customization, be it in Yahoo IM or IMVU or Sims, seems to be catching on and you may start seeing hip brands making use of VWs as a new way to market their products. Will they pursue people who are infringing on their material? Sure they will.

My first 7 or 8 pieces of clothing I put on sale were photosourced. Did I think it was right? Not really -- I felt I took someone else's work and re-purposed it. For me, at least, it comes down to common sense. I'm either starting with a new photoshop document or I'm opening up a photograph that I didn't take and modifying to fit the SL template. Why did I stop doing it? Not out of fear -- especially two years ago . Two reasons really: 1. I wanted to do my own thing, which was personally much more rewarding and 2. If it were my work, I wouldn't want it taken or re-purposed -- at least not without someone asking my permission. Mostly, though, I just wanted to create my own stuff.

Chip, I just read your last post (i've been writing mine all afternoon but keep getting interrupted). It's my understanding that just because the photograph doesn't look like a photograph any longer, doesn't mean you haven't infringed on the photographer or company's copyright. But I do now understand what you and others are saying about derivative works in regards to SL photosourcing. I dunno, maybe I'm wrong, I certainly wouldn't mind being wrong. And I don't want to get on a high horse or imply that people who photosource are bad people or any less creative. That's not true.

Anyway, let's hear it for civilised discussion!

... in the USA.

Oh! Good idea.. I'll get to work on finding that loophole right away ;0

FYI - generally speaking, anything published (whether newspaper, TV, magazine, or Internet) has automatic copyright under US law. This includes art.

Exceptions to this rule are generally limited to a few cases:
- Expressed permission
- Freedom of Information Act (non-classified / non-closed US government documents)
- Fair use: A small part of a work can be quoted as part of a review, criticism, or for comedy
- Fine arts: Warhol's Campbell's soup can, etc.
- Parody: Weird Al (although I still think he gets permission from record companies anyway, according to album liner notes)

I think there's rampant copyright infringement in SL, but the real thought is:
Is anyone really profiting from these?

High-end designers like Neph probably should be held up to these standards; should everyone? Eh...

Very well said, Nicola. As an avid photographer who may one day turn pro (I also wish I could fly, which is about as likely) these are important issues. I've sold one of my images, but even still, I think the US has gone a little overboard with copyright and "intellectual property".

I draw my moral compass on the subject from the Fair Use limitations (17 U.S.C. §107) particularly subsection (4):As has been noted above, this stuff is usually clear as mud, but if my use of someone else's work is likely to have negligable impact on the potential market, then I feel that I have satisfied the intention of the law. Of course, I'm setting myself up as judge on this matter, for which I'm certainly not qualified, but this is about being comfortable with your own actions. This does not mean that I copy willy-nilly, as I don't and I do attribute where possible when I do. For what it is worth, some of my work is available on the net and is largely licensed under a Creative Commons "Attribution-NonCommercial-ShareAlike" with an "If you really want to use this for commercial purposes, ask me" addendum.

There is also the pragmatic consideration of whether it is worth the copyright holder to pursue potential infringement which plays off the fair use limitation noted above. And yes, I know that this may well not apply outside the US, but the Berne Convention seems to have similar intent and more global scope:And I do plea ignorance on the force of WIPO's treaties.

Can you show me the law where this is stated? I obviously missed it!

I highly doubt this is the case. Hiro's explanation sounds quite a bit more reasonable.

-Flip

The U.S. copyright office has a helpful FAQ on the web:

http://www.copyright.gov/help/faq/

When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.

Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright Basics, section “Copyright Registration.”

Why should I register my work if copyright protection is automatic?
Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney's fees in successful litigation. Finally, if registration occurs within 5 years of publication, it is considered prima facie evidence in a court of law. See Circular 1, Copyright Basics, section “Copyright Registration” and Circular 38b, Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA), on non-U.S. works.

Well, Hiro said "published" which is incorrect. Unpublished work is automatically copyrighted as well.

But other than that he was fairly close.

Really, what's happening in photosourcing is copyright infringement.

It really is not a grey area.

What is unlikely, though, if anyone will get caught. It is possible, I suppose, if SL becomes much bigger but for the moment I don't think anyone has to worry about anything except maybe sleeping at night.

Okay, there's a technicality here:

Your unpublished work is copyrighted, however if someone creates a similar work, it is up to you the creator to prove that they were aware of your work / were influenced by your work.

Actually it is the case, Flip. It's both a good and a bad thing, but it is the case.

That said, if there is no RECORD of your copyright, as Cadroe gets at, it becomes an exercise in futility to try do anything about copyright violations.

Heh, actually no.

It is very easy to do something (though hard to get damages) about it.

A DMCA takedown notice is a trivial thing to write and a pretty dangerous thing to refute.

That may enter into the calculation for damages, but it doesn't mitigate infringement.

Using a digital image captured from the web as a source for a 3D texture is pretty clear-cut infringement. As technology continues to improve for encoding ownership information into the image itself, expect the number of suits to increase.

Play it safe: photosource only from your own photos and don't shoot content that's copyrighted in other media. You never know when the vultures working for the recording industry are going to start looking for fresh meat.

But almost impossible to prove if someone decides to fight about it.

True, but if you refute it and they do prove it you could face jail time for perjury.

What is the purpose of this thread?

Would the original poster like to remove all photosourced items in the game?

If so , what would that mean to our SL experience?

Its correctly pointed out most or all of us arent lawyers, and certainly none of us are involved in any litigation of copyright enforcement and Second Life.

City of Heroes is, or at least was, being sued by Marvel Comics becuase it was possible to use their Character creator to duplicate their copyrighted characters. Even though the Customer Service would remove such characters when aware of them.

Of course people should respect intellectual property .. but enforcing internally is impossible .. and I certainly wouldnt want someone shutting down Second Life becuase people are crying foul due to the fact some players are making a couple dollars making items.

I think LL is right saying anything you upload is your Intellectual property and your business and responsibilty.. becuase (hopefully) they are not then responsible for what you bring into the game.

Much like the rest of the internet, where people post copyrighted photos and plagerized sections of text routinely.

It's to introduce a little reality into a community that is a little too fantastic.

Please expand on this explaination. As for myself, I do not understand this statement.

Fantastic in what way? Introduce reality how? Hoping to shut down most business in Second Life? Raising prices on quality goods through the roof?

Trolling out of boredom as far as I can tell.

blaze, you are right to keep this issue top-of-mind. IP law can be quite grey, but it is worth keeping in mind at all times, and worth being conservative in what you choose to use.

For example, if Gucci comes out with a very distinctive fabric, you would be wise not to photosource it to use in your clothes. On the other hand, photosourcing the fabric on a random pair of jeans is probably pretty safe.

I am rusty on these issues -- forgotten too much.

I know that Seinfeld never shows the name of the diner (the one they used is up near Columbia University) when they show the outside because they didn't want to pay royalties. If they show the diner including the sign "Tom's Diner" in a show they would have to pay, however if they show the same diner without the sign, I gather they ducked paying.

Wait... I could be wrong but I am almost positive Seinfeld DOES show the sign. It's "Tom's Restaurant" (by the way, it looks TOTALLY different on the inside in RL than on the show, and they have great grilled cheese with tomato).

Though, even if I am right on this, it doesn't detract for your argument at all. I agree with everything else you said.