Lend me a hand

I knew deep down inside that Rose was my alt!

wow eboni, could you be any harsher? I'd point out that defamation is actionable in all states, and that comments relating to persons employment can be considered slander, or libel per se. Thus if you do not actually know Kati's abilities as an attorney, I would be careful about abosultely disparaging them.

You gloss over many very technical aspects of copyright and trademark in your analysis, as well a a plethora of practical ones. So before you go jumping down the thorats of other people you might want to correct the deficiencies in your own education.

Criminal enforcement of IP rights, depsite FBI warnings, is almost exclusively confined to mass producers of items that compete directly in the marketplace with those of the original (also you don't exatly own a trademark in the same way you own a copyright). As a practical matter, the losses that people worry about are two fold: economic loss in the form of lost sales, and in trade mark, loss of brand identity through confusion.

A copyright analysis is fairly straight forward: If the original fixed work is copyrighted any reproduction of it can be an infringing use. The questions in copyright come up because the concept of "fair use" presents "defenses" to infringement. But in a civil suit the suing part must prove damages. They must show that the infringing use caused damages in the form of lost economic activity. The question then becomes is the possibility of recovery worth the cost of suit? My thought is that in most cases, the sort of infringing uses I have seen in SL do not rise to the level of actaully damaging the original holders (with the exceptions perhaps of streaming video and music). Now if the original holders maintained a presence in Second Life and actively enterd the SL stream of commerce, things would be radically different. But right now, most of the RL originators have not come to play.

With Trademark the analysis is a bit different. There is no fair use concept in trade mark so any use could be infringing. The problem is that trademark really is meant to protect against brand confusion. Thus what the market is as a hugely significant analysis in trademark law is what the market is and what is the potential for confusion between the origianl item, and the infringing copy. In the case of the SL cars I think the market is radically different.

Also, I am not so sure that it could be ruled that transferring $linden for an item would be looked upon as a sale. I know all the arguments about the linden having value and being currency, but the linden $ by itself is not legal tender. I am not sure if this would constititue sales for the purposes of infringment and damages. I am fairly sure that courts have not yet had to arrive at this point, so we are dealing with matters of first impression.

Obviously the best practice is to contact the copyright or trademark holder and obtain permission to use. In general, if you aren't going to profit from it, its pretty easy to get permission: witness all the startrek fan flicks. If you are going to profit (and its questionable if $L for and item is legally profit) then you may need a licesense, and these are harder to obtain. In any case you are likely to to also get a copy of guidlines, some of them strict, for use of the intellectual property.


I think one issue that gets ignored is ingame branding. How does Aimee protect PREEN. That to me is a very very big deal, and if we are going to focus on IP rights, I think the discussion should focus there, and not be so concerend about someone's Starwars poster. Let lucas enforce his IP.

<-------

Yeah, There.com sold Levi's and Nike merchandise inworld. Food for thought . . .

Coke Studios, an avatar-based 3D chat site from The Coca-Cola Company where members decorate their own music studios, create and share music mixes, and apparently can make a RL t-shirt with their avatars' pics on em.
http://www.mycoke.com/index.html?tunnel=cokestudios

Habbo Hotel (the UK version), a similar avatar-based 3D chat site (both built by Sulake Corporation in Finland) has had sponsors and inworld merchandise like Sunny Delight, Revlon (or was it Maybelline . . . I don't recall), licensed posters of best-selling musical artists, an event area sponsored by Warner Bros. (pretty sure it was Warner, but that was a few years ago), etc.
http://www.habbohotel.co.uk/habbo/en/community/

The US version of this site (there are Habbo Hotels all over the world) is much newer, but I see they just had a Pop Tarts-sponsored contest.

Latest press release from Sulake is at http://www.sulake.com/Habbo-4-million.htm, and the headline is "Habbo Hotel reaches a unique audience of 4 million per month."

Neopets (http://www.neopets.com/) has had branded inworld content from corporations as humongous as Disney and McDonald's, not to mention the Neopets merchandise that they've given out with McD Happy Meals.

When they decide it's big enough and stable enough, of course corporations will want to come into SL. Forums are gonna be aflame then, eh?

On a side note and something fun to think about I submit this for you.

UPS, United Parcel Service has trademarked the color brown. Please see the following list.

UPS Trademarks

so none can make another courier service that uses the color brown. Thank god.

Yes. In relation to logistics carriers, they can and have. It's actually quite common. Another example (admittedly NOT gonna come up in SL!) is Owens-Corning's fiberglass insulation has trademarked the color pink. Insofar as no other fiberglass insulation company can use it as the primary color in their marketing.

Some interesting reading:

Trademarks: Sounds, Colors and Scents

Actually that whole section is pretty interesting:

http://www.ladas.com/Trademarks/TMLawIndex.html

im just wondering but does the snapshot on the main secondlife webpage "REPORTED!!!" have any relation to the activities and/or people posted in this topic?

o_O

An just what the heck is the snapshot about anyway if anyone knows o_o

Minasojo Massiel, click this link
http://ryerro.blogspot.com/2005/08/attack-of-suecs-one-is-bad-enough.html

The issue is trademark, not copyright.



At best I believe you could be held liable for trademark infringement if you perhaps sold reproductions of the painting and perhaps used the trademark as a means to promote your product and/or your work did not fall under the "fair use" clause.



The same way people can go faster than the speed limit and not get a ticket.



I believe this would fall under "fair use" (sometimes referred to as "fan art" - though that is a bit limiting). Additionally, one object is unlikely to dilute a brand, therefore I think it's also unlikely to be held to the standard necessary to deem it trademark infringing (and it's a good bet the Enterprise shape is in fact trademarked).



If you're asking about Trademark, it's any representation that is associated with the original product. Toy Hummer knock-offs had no identifiable marks or words or logos associated with them (because obviously the toy companies knew that would be infringement), yet the toys were ruled as infringing on the trademarked shape of the original Hummer. They obviously didn't "copy" it; the toy company created their own version from scratch - but with the apparent intention of using the visual look as a means of associating themselves with the Hummer brand and its reputation and thus increasing sales/profit.



Painting a picture of something that is copyrighted is, afaik, not a violation of any laws whether you sell it or not. However, selling a picture of something that is Trademarked will, under certain conditions I believe, be considered a case of possible infringement.



Again, the issue in these discussions is trademark infringement, not copyright infringement.

In all these cases, I'd venture that these original depictions fall under "fair use". From some background briefing materials:


ref: cyber.law.harvard.edu/events/SignalNoiseBBFINAL.pdf

Therefore I could see that with Campbell's, Superman, and Mickey Mouse this would apply. Warhol is commenting about mass culture, and as such the icons in it are fair game for his critical visual commentary. But Marilyn Monroe is a slightly different case because in addition to being a icon, she's also a public figure.

Additionally, there are likely to be cases where a trademark holder will use "secondary" work that is not shielded by the "fair use" clause to their advantage. Not every corporation deals with infringement in a court of law.



The best way to learn is check out the .gov websites that have the original definitions.

Sad part is Jake she probably can be a lot harsher. After all she doesnt know the difference between copyright infringement and fraud yet thats not stopping her from citing the law.

Jake you and I are both used to encountering defensive jealousy and it doesnt bother me, I know who I am and what my accomplishments are. I feel sorry for those who resent the accomplishments of others and have to demean them in order to elevate themselves.

Edited to add: :Lest I be accused of turning the other cheek in the face of wrong doing and rule violation, her post was reported as a violation of forum guidelines and section 1 of the CS forbidding:

1. Intolerance
Combating intolerance is a cornerstone of Second Life's Community Standards. Actions that marginalize, belittle, or defame individuals or groups inhibit the satisfying exchange of ideas and diminish the Second Life community as whole. The use of derogatory or demeaning language or images in reference to another Resident's race, ethnicity, gender, religion, or sexual orientation is never allowed in Second Life.

Some people must be reported!

I think this is a good post also.

I wonder if SL branding being more apealing - Combined with community peer pressure towards originality, would help more than ARing everyone

Khamon, discussing a topic is one thing, giving legal advice is another.


Edited because I been corrected, your not a teen.

It is true. We should not post legal advice here. In fact, we shouldn't post medical advice either. Then there's advice on technical and social matters. Really, nobody should ever post any kind of advice because the readers have no way of knowing if the poster is qualified in the field or not.

Good call. I'll leave Jarod to hassle LL over trademark issues and concentrate my efforts on publically bashing, what did you call it - laughing, at presumptuous people who post advice in these forums.

Maybe I'll hassle rude posters who aren't even attempting to add anything construcive to the "discussion" as well.

Edited because I've been corrected. I'm not a teen.

Trademark infringment doesn’t mean if you use a trademark that is the same or similar to one that is registered you then automatically violate the law. Under both state and federal law the court will look at certain factors to determine whether infringement exists. This law is VERY well established.

The trademark holder, who is the plaintiff who brings suit, has to prove that “that the defendant's use of a mark has created a likelihood-of-confusion about the origin of the defendant's goods or services.”

There are factors that must be proven to accomplish this. First, plaintiff must show that it has developed a protectable trademark right in a trademark. Then the plaintiff then must show that the defendant is “using a confusingly similar mark in such a way that it creates a likelihood of confusion, mistake and/or deception with the consuming public.”

This confusion created by plaintiffs use of the trademark, actual or similar, must be such that it suggests that the defendant is somehow associated, affiliated, connected, approved, authorized or sponsored by plaintiff.

To determine whether there is a likelihood of confusion 8 factors are examined by the court. They are:

1. The similarity in the overall impression created by the two marks (including the marks' look, phonetic similarities, and underlying meanings);

2. The similarities of the goods and services involved (including an examination of the marketing channels for the goods);

3. The strength of the plaintiff's mark;

4. Any evidence of actual confusion by consumers;

5. The intent of the defendant in adopting its mark;

6. The physical proximity of the goods in the retail marketplace;

7. The degree of care likely to be exercised by the consumer; and

8. The likelihood of expansion of the product lines.

Under US trademark law it is possible for the same, identical mark, or one that is very similar, to be used without any trademark infringement occurring, as long as the goods or services of the parties are sufficiently dissimilar. Most people can tell the difference between a primmy Ford or a SL t shirt with a Playboy bunny, both of which remain in an online game, from the real world items.

If the items made in SL bearing the regustered trademarks belonging to others were to leave SL and enter the real world stream of commerce then confusion rising the level of copyright infringement would more probably exist.

What does this mean? Lets take a primmy ford car created in SL as an example.
Even assuming the exact Ford logo is used by the Sl builder, is this trademark violation? It is if Ford can prove that there is a likelihood of confusion that SL members will think the creator is ”somehow associated, affiliated, connected, approved, authorized or sponsored” by Ford Motor Company.

If you are confused and think that the primmy Ford cars in SL are really associated, authorized, connected or approved by Ford Motor Company you cant be alone in order to establish copyright infringement. There has to be ACTUAL CONFUSION by the general population of SL consumers. I dont think that exists.

But, how would the court determine if SL members are confused? Look at the 8 factors. Each case is determined individually. In an environment where it is apparent that the trademark being used, such as a logo on a primmy car, or on a SL t shirt that remains in world, then it is unlikely there is any confusion that rises to the level of trademark infringement.

Csven - thank you for the information. After your post I did a bit more research and found it interesting that the question regarding Worhol's art violating trademarks has come up before. Here is a response that I found from a law professor:



(Name of Professor Withheld because I'm not sure if I should post it)
but here is a link to the site I found this on: http://www.cni.org/Hforums/cni-copyright/1999-02/0100.html

No, it's really not at all necessary. Your post pretty well illustrated it for me.

Good job twisting my words Khamon.

Yes I do laugh that so many people here think they are legal experts and argue with such passion, like there is no chance they are wrong. I did not add anything of value to this thread because I am not a legal expert, anything I say is just me trying to use some common sense.

I did not publicly bash anyone here, like you are doing to me right now.

The subject really does not deserve all this attention. It is this simple, if you are taking something that was not originaly your idea, you are risking LL asking you to remove the items at some point. If you do not do so you may have legal issues.

Discussion over. Chess anyone?

Thank you. I suspected as much which is why I commented that not all companies immediately rush to court. I'd venture those who controlled the IP were aware of the potential benefits and pitfalls that might go with taking a celebrity to court. They chose to incorporate Warhol (pun intended).

[Edit: I should add that I was careful to say "I'd venture that these original depictions fall under 'fair use'" even though on the surface they appear to be. The difficulty I had with Warhol in this matter is that he made prints - effectively taking his art and commentary on consumer culture to the level of creating his own consumables... in quantity. Tricky issue.]

Pawn to Q3 and I apologize for laughing at you for laughing at us.

I'll play with you but you have to pile drive me first. So far I agree just seems a bunch of legal talk and noone offering solutions.

Stir the ant hill often enough and you will be stung in turn. AR enough and the Lindens might start scratching heads about the person who keeps doing it, and doing it, and doing it. I've learned nothing that while the squeaky wheel might get oiled, but it is often replaced the next day.

So, here's a helpful suggestion to take into consideration and to keep YOU outta trouble as well.

1. Create a procedure by which this is handled. This doesn't include "OMG, violation! AR'd!".
a) Write the violator's name down, the location of their shop and what trademarks/copyrights were violated.
b) IM the person and POLITELY state that you feel that these might be a trademark/copyright violation, and ask if they have contacted the company(ies) in question about permission. Do not accuse them. That leads to you being AR'd in return if you don't word it properly. Example: Excuse me for being annoying, but I have a concern about one of your items. While I really love seeing (insert object/copyright/trademark here), I'm concerned that it might be violating the trademark/copyright laws in the US, because they don't have the little circled c or tm that I'm used to seeing for officially endorsed items. Are these being endorsed by the company in question?
c) Make and keep a copy of all responses, even a lack of one. Most people who are legally using a trademark or copyright will gladly respond in a positive manner, since they won't have anything to lose. Hostile ones should be noted as such. REMEMBER DO NOT SINK TO A HOSTILE LEVEL, no matter what the other person does. It's not worth it to make it personal to you.
d) If they are not "legit", then forward all information to both the Lindens AND the copyright/trademark holders. The Lindens have the power to ask that they stop distributing stuff, but the copyright/trademark holder is ultimately responsible for enforcing their rights!
e) Do nothing more on the matter. You have done what you legally can as a citizen, and there is no point in making more stress for yourself or earning the hatred of others by being a pest and a nag.. and for goodness sake, DON'T POST ABOUT IT IN THE FORUMS!!! That just says that you want pats on the back for being a "good boy," except you'll just be painting a nice big bullseye on your back!

Isn't this the Lindens job? They are the expert on what is a violation and what isn't. And if the person has a license then the linden probably already know.

What do you know about me? Zilch. By your own choice.

coco

That "helpful" suggestion is so much more difficult that just AR'ing, that it's difficult to believe you're serious. Your suggestions actually make matters worse imo by giving the (possible) violator reason to believe that an AR is coming from the person following your suggestions - when in fact that person might decide not to AR after all, and someone else could come along and submit an AR! Besides, the Lindens make the determination of what is "legit" - not the person submitting an AR.

And considering that submitting an AR is trouble-free, how exactly does this keep Jarod "outta trouble"? Please explain.