SecondLife

Copyright, Trademarks, Slander, Oh My!

The laws regarding copyright protection, trademarking and slandering (defamation) can be quite confusing if you do not take the time to educate yourself on the matters. You do not need to be a lawyer to gain a good understanding on how the laws work to protect yourself and others against false claims and obvious intrusions on property.

With that, keep in mind that this article applies to United States (U.S) persons and website servers based in the U.S. such as Yahoo!/Flickr, Google, YouTube and many more. Due to the servers being stationed in the U.S., they too, along with their users, must follow under U.S. law even though their users may be international. While most international laws are similar, they each have subtle differences on how they protect their people.


Trademark ™ ® ℠

A symbol, word, or words legally registered or established by use as representing a company or product. – Definition

First off, keep in mind that trademarks are different from copyright. Trademarks are the brand name or logo defining the ownership of the product while copyright is of the finished product created by the person. People’s names can also be trademarked as their names define their products. This is usually the case of illustrious celebrities whose names are easily recognizable. In Second Life®, the same concept in trademarking SL names can be applied for ‘famous’ internet icons such as Frolic Mills from the Best of SecondLife (BoSL) or models such as Anna Saphire, Mimmi Boa and more.

A trademark, trade mark, or trade-mark is a recognizable sign, design or expression which identifies products or services of a particular source from those of others. The trademark owner can be an individual, business organization, or any legal entity. A trademark may be located on a package, a label, a voucher or on the product itself.Wikipedia

Unregistered Trademarks are recognized but do not benefit from the protection afforded to trade marks through registration. In the U.S., neither federal nor state registration is required to obtain rights in a trademark and they still have rights under common law.

Registered Trademarks ® are registered with a national trademark office. In some countries, like the U.S., it is illegal to use the registered trademark symbol when it is not officially registered.

Service Marks ℠ differ from the other trademarks in that the mark is used on the service advertising rather than the packaging. A service mark can also be a definitive sound signifying that service, such as MGM’s use of the lion’s roar. It too does not need to be registered though registration provides more security, benefits and the added use of the Registered Trademark symbol.


Copyright ©

The exclusive legal right, given to an originator or an assignee to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same. – Definition

When one completes their own work, they immediately have copyright of the said work regardless if it was officially registered. The most common way to infringe on the original artist’s rights is to take all or pieces of another’s work and pass it off as your own. This is generally done with digital artwork such as photos or copybotting in-world. Even if the pieces have been edited, the basic fact that they were used from another person’s work is considered copyright infringement.

Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed.Wikipedia

Some of the most ridiculous excuses I have heard thus far have ranged from taking pity on someone’s mental state, that there is no obvious copyright symbol or signature on the artwork, that the artwork is not listed for sale and is downloadable so obviously the artist wants people to use it. (The latter about the artist is sarcasm.) First off, a person’s mental state does not excuse them from breaking any law in either the physical or digital realm. Secondly, there is absolutely no requirement for any artist to put a copyright symbol or signature on their work for it to be protected. By law, it is copyrighted to the original artist the moment they create. And lastly, art is meant to be shared whether it be in a physical or digital form and most artists want their viewers to see every detail of work they have put into it. That inherently requires the availability of a larger file, downloadable or not. Giving “credit” to the original material does not excuse anyone from using copyrighted material either!

But wait! So and so used the same idea as me! They are infringing my rights!

There is a difference between using the same idea and copying a unique idea. If a blogger used machinima to show off a brand’s creations on the brand’s sim, then they have no jurisdiction on that idea if another blogger chooses to do the same with different shots, different clothing styles, different music, etc. The ideas are the same in the aspect of using the same brand, same sim and machinima as a medium but they are not infringing each other’s copyright to their individual videos. If a person had copied the same exact shots, same clothing style or same music as another, then you would run into issues of obvious copying. But other than that, bloggers are free to use the same sims as one another in their own personal style. If that were not the case, then no one would be able to use the same sim twice for any shoots. Case in point, Absinthe vs Thalia; where both parties shot a section of a public sim and while Thalia claims copyright, there was no copyright made on the particular shot in question. Both had done their own work on the same piece with different lens effects. The only similarity is the subject and similar camera angle. (Similar being the key word since they are not the exact same.)

Copyright law recognizes the right of an author based on whether the work actually is an original creation, rather than based on whether it is unique; two authors may own copyright on two substantially identical works, if it is determined that the duplication was coincidental, and neither was copied from the other.Wikipedia

It can be difficult to determine if the person deliberately copied another rather than coincidentally but in the case of two bloggers using the same sim and brand clothing, there is little to show that it was a deliberate act against each other but deliberate to promote the clothing brand. In this case, there would still be no infringement.

But I saw so-and-so copy off a real life designer’s style!

In the fashion design aspect, copyright gets even trickier. The structural design of a utilitarian piece of clothing cannot be copyrighted; such as a type of skirt, dress, blouse, belt, shirt, etc. Utilitarian being that it keeps a person warm, protects them from the elements and provides a socially acceptable form of decency. When the design is shaped to be more of a sculpture than an outfit, then the structure of it is copyrighted. This is seen most often in avant garde and extreme haute couture designs where the outfit is not made for usual wear but more in an artistic form.

Currently, fashion may only be protected by copyright to the extent that its shape is non-utilitarian enough to qualify as a creative “sculpture,” or to the extent that a design, pattern, or image on the clothing qualifies as “pictorial” or “graphic.” – Wikipedia

But do not be too mistaken that any utilitarian design is free to be copied. Those that are seen to have invented a new and original design, such as the US military’s combat uniforms, can be copyrighted.

Utility patents and design patents are also potentially available if a clothing design is a “new and non-obvious” and provides some sort of novel function. Generally for normal, standard clothing items (shirts, dresses, hats, socks), design patents will be inapplicable.NewMediaRights

For SL designers, the customized mesh, sculpture and textures for fashion designs are not considered utilitarian but artwork in a digital data form and therefore with copyright in the digital form. This does not restrict original designers from remaking designs from real life or even other SL designers as long as they do not use a stolen base element; ie. textures, mesh, sculptures, etc. If the remade design is created on their own without the use of stolen material from the original design, then it is not a copy but a replica. The best example can be the plethora of original mesh bodies available in SL. Though they can be very similar with alpha utilities, clothing and tattoo layers, each one was built individually rather than based off of a ripped product.

When a designer buys a template, they are purchasing the right to use the design under the template creator’s terms of use; which are generally no resale as “full perm”. Most template creators highly encourage modifying their products to ensure uniqueness amongst those that purchase them. Once the work is modified, the template purchaser owns the modifications done to the work and the work itself due to purchasing the right to use. If the modified work is then stolen, it is up to the template purchaser to submit the DMCA notice. If the template itself was stolen with or without modifications, then the template creator needs to submit the DMCA.

Copybotters who steal the customized mesh, sculpture and textures cannot claim copyright, no matter how much they modify the original product, due to the fact that pieces or all of the base element was stolen. This is more common with texture theft such as skins, artwork and fabric textures.


Slander (Defamation)

The action or crime of making a false spoken statement damaging to a person’s reputation. To make false and damaging statements about (someone). – Definition

When it comes to speaking out against another person, there is always that one person or group that cries out “slander!” even if the speaker told only the truth. By definition, slander is when the speaker makes false claims against a person to harm the reputation of an individual, business, product, group, government, religion, or nation. If no one was allowed to publicly speak out against someone’s actions then we would live in a dictatorship. It is when the speaker provides false information that it becomes slander. Also of note, slander is considered spoken defamation, rather than written.

In many legal systems, adverse public statements about legal citizens presented as fact must be proven false to be defamatory or slanderous/libellous.Wikipedia

The differences between defamation and opinion is quite simple in how it is said and/or written. Making declarative statements that are false is considered defamation. They can be changed to an opinionated statement by simply adding, “I believe”, “In my opinion”, “I think”, or any others in the same nature where the person saying or writing the statement owns the statement. Many people do not own their statements and would rather make them declarative, even if they are false. This can be part of a subconscious desire of not wanting to associate with a false statement.

This is why we are able to read the news, vent our frustrations (albeit in a truthful manner) and the overall use of Freedom of Speech. If we could not, we would live in a pseudo Utopian society rotting at the core from the lack of truth.

I would not want myself or my friends to naively conduct business with a shady person while their misdoings were dealt with in private for the sake of peace. Is it drama? That is for you to decide on as an opinion but as long as there is a relevant reason to exposing misdoings that have the potential to affect a large amount of people, it should be well known for the sake of others. That is where you draw the line between what is considered drama and information necessary for others to know.


International Links

Here are some helpful links to understanding different international laws. Most of them are generally the same when it comes to protecting the original artist but their subtle differences can make them confusing if you have to deal with an international suit against you.


Author’s Note

There are those who believe that because I have used Wikipedia as a resource that my statements are invalid. The Wikipedia articles on the laws are true, full to the extent and are the easiest for international readers to translate and understand. I have spent much of my time researching outside of Wikipedia to make this article as easy to understand as possible for those new to the laws and have found that Wikipedia is the best resource to direct others to for further reading.

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5 thoughts on “Copyright, Trademarks, Slander, Oh My!

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