Tuesday, April 28, 2009

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New World Newsfeed: Legal Advice For Machinima Makers

NewTeeVee: How To Make Machinima Without Getting Sued Blind

I just posted an advice guideline for machinimators who want to protect their work from copyright infringement notices and other legal worries, based on conversations gleaned at a recent Stanford Law conference on the topic. Much of it applies more directly to machinima made in games like World of Warcraft or Halo, but a few points are just as applicable to Second Life machinima: specifically, "Don’t Assume 'Fair Use' Will Protect You", "Unauthorized Music Is a Huge Red Flag", and "Don’t Panic". To that advice, SL machinimators must also consider EFF lawyer Fred Von Lohmann's observation: Second Life copyright issues are "In some ways worse" than real life. Since every Resident retains IP rights to their creations, you probably want written permission from the creators and owners of every avatar, build, and location prominently featured in your machinima. Or you can consider creating an SL "backlot" where you and your collaborators own the IP to all those aspects. (I believe ILL Clan Studios and other professional machinimators to do this.) Anyway, read it all here.


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Arcadia Codesmith

My understanding, and I'm not a lawyer, is that filmmaking is a transformative use in almost all cases other than copying another film or appropriating a soundtrack, especially if usage is clearly incidental.

Would it apply to the virtual world? I think you could build a strong defense on it.

But maybe we're looking at it from the wrong angle. Perhaps the machinima makers ought to be soliciting product placement deals instead...


Unfortunately, all film is not necessarily transformative. However, incidental use may be so minimal that it is non-infringing. Which is better, from your lawyer's point of view, than having a 'defense' like fair use. (There's a religious debate among copyright lawyers about whether fair use is 'just a defense', a privilege, or a right, but regardless, if you get sued, nothing is a get-out-of-jail free card.) And whether a use is "transformative" goes to the question of fair use, but the two are not the same thing.

Ann Otoole

I have never been turned down when I have asked for permission to use a music track for non commercial purposes with attribution. Of course I would never bother a band like Metallica with such a request either. As for filming in Second Life you are better off filming on your own region using builds, clothing, and prim attachments that you know you are licensed to use.

Basically you can behave like an adult and cover your ass from the legal perspective or behave like a child and risk your real life future livelihood in the name of "information wants to be free". Your choice.

I just don't understand why people are so afraid to ask permission to use stuff. Most of the people you would be asking are actually human and are also artists and remember what it is like to be starving and penniless for art's sake.

Youtube made it easy. They just nerf the audio to 1/4 volume. If you want good music signal strength you will use audio swap and grab a pre licensed track anyway.

Arcadia Codesmith

I believe strongly in copyright protection for creators. If somebody is selling another person's work as their own, the thief needs to be punished.

The thing is, if I sell a photo or stock footage of the Experience Music Project building in Seattle, I'm not representing the building as my work. I'm not selling the building or a copy of the building; I'm selling my picture which is an artistic creation utilizing the building as subject matter.

The principle is recognized in US copyright law, and there is a specific exemption granted for pictoral representations of copyrighted architecture.

So if I sell (or give away) a music video of an artist performing an original piece in a Second Life club, I'm not making any claim of authorship to her avatar, the venue backdrop, the avatars in the audience, or anything other than my virtual filmmaking vision.

The only signoff I clearly must have is that of the musician, as the focus of the piece is her and her music. I'd get permission from the venue owner as a matter of courtesy, not because there's any legal liability. But I'm not going to get a release from the builder of the venue, and I'm not going to track down the original photographer of the texture used to create the T-shirt worn by screaming fan #34.

Part of respecting copyright is respecting the fair use provisions built into the law, and fighting back when copyright holders try to assert unreasonable control beyond what the law provides. That won't be an easy fight, but it's the right thing to do.

(And "film in your own region" sounds like superb advice. Call me when the Lindens start handing out free regions to film in. Really, could that have been any more "let them eat cake"?)


Another point to consider is that foreign copyright laws are often more restrictive than their US counterparts. Just because you and SL are based in the US may not protect you.

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