Friday, March 09, 2012

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Iris Rants: 3 Reasons I Support Virtual Cosplay (Despite Complaints About Copyright Infringement)

SL Cosplay

Iris Ophelia's ongoing review of virtual world and MMO fashion

When I shared my Second Life avatar inspired by Mass Effect's lead character yesterday I briefly touched on some of the concerns over copyright infringement that come with cosplaying in Second Life (or any other virtual world). I've been meaning to write about this issue in detail for some time, and this seems like a good window to finally do so. Ever since I joined SL I've loved dressing Iris up as different characters that inspire me. Sometimes that involves buying recreations of costumes like Shepard's, and sometimes it's just a matter of patching together different pieces to recreate it on my own as I did with the cast of AMC's Mad Men.

Am I a hypocrite for being against content theft, but supporting what's technically copyright and IP infringement in the form of cosplay? I don't think so, and here's why:

Cosplay is Celebration

Cosplay has a long history that mirrors the rise of fan culture in general, alongside fan fiction and fan art. Fans doing these activities aren't claiming the character as their own, but sharing their enthusiasm for them. The motivation is to share an appreciation for the original work with other people, either who have or haven't yet been exposed to it. It's free advertising, and more importantly it builds incredibly devoted communities around the original work. Yes, many cosplay fans make and sell their costumes (in RL and SL), but...

Cosplay is not Counterfeiting

"Is it the same if a fan of Chanel or the NFL makes their own 'celebratory' merchandise?" I hear you asking. Unlike cosplay, counterfeit brand items are almost always in direct competition with official brand products. These items are trying to masquerade as the real deal to get money from naive consumers. Official cosplay items are relatively rare, and most often are molded or cast accessories that are hard for cosplayers to accurately replicate on their own anyway. It's almost like the companies want to help cosplayers.

Companies Love (and Encourage) Cosplay Because It Benefits Them

Most companies producing the media that cosplayers are basing their work on love cosplay. They sponsor conventions and events that will be packed with cosplayers and costume contests, and it's common for companies to host their own contests to hype a new release. In fact, when I did my avatar of Felicia Day's Tallis from Dragon Age II, BioWare (who also produces Mass Effect) was in the process of running an official Tallis cosplay and fanart contest. Why support people who are infringing on your copyright? As I mentioned earlier, things like cosplay help foster devoted communities, raise awareness of the game/movie/etc, and they don't take money out of the company's pocket by offering it as an alternative to the official product. No one wearing a RL fan-made N7 costume instead of playing Mass Effect, nor are they doing so in SL with Arbalest's N7 armor.

FemShep Wheel

While cosplay is a form of infringement, it is incredibly rare for companies to take action against it. They would gain little, especially compared to the damage done to their own communities (and customer base) as a result. There are some exceptions to this where legal action is common and fair: When a fan item is in direct competition with an official product, or when it uses resources taken directly from the original like art. In SL this takes the form of people ripping textures and models directly from a game and selling them in SL as their own fan work (or worse, as their own designs), which is absolutely content theft and something I refuse to support. When I cosplay in SL, I look hard and close at what I'm buying to avoid supporting fans who don't put real effort into their recreations. I've been comfortable with Arbalest for several fan costumes because their texture work is made up of simple patterns and shading as well as in-world effects like shiny prims. I don't mean that it looks bad, but it isn't identical to BioWare's own texturing style, and shows that they are putting honest effort to recreate from scratch.

There is a tremendous difference between cosplay (both real and virtual) and copyright violation. Though they may seem legally alike, they're very distinct in the eyes of the fans and the companies that support cosplay.

Mixed_reality_iris2010 Iris Ophelia (Janine Hawkins IRL) has been featured in the New York Times and has spoken about SL-based design at the Fashion Institute of Technology in Manhattan and with pop culture/fashion maven Johanna Blakley.

 

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shockwave yareach

If there could only be some sort of Fan License, where the fans could ask for permission to sell stuff in SL only so long as it doesn't sell for more than 2US dollars. Permission could be granted for the "small potatoes" operations which then at no cost to the company advertise for them. I would love to see a limited permission license to allow fans to make stuff of $fandom legally so long as big money isn't involved. And the company as part of the license then has the right to either pull the license, demand a cut of the action, or raise permitted dollar figure. So even if someone were to create the most successful recreation of Galactica ever concieved, the creators of the show could ask for part of the profits rather than simply shutting it all down.

Karma Avedon

My rule on this issue is pretty simple. If you are creating something based on a likeness for your own enjoyment, then not only are you NOT infringing on the original, but actually promoting it. Once you create something based on another's work for profit, then you cross a line.
Another great post Iris!

Melponeme_k

The only reason why the companies don't come down on COS play is because it would be loads of bad publicity. The only thing saving those folks from the ban hammer is the fact that they are not selling their pirated wares.

As far as public fan licensing. That is hilarious. Why would a multi million dollar company making multi millions on their IP want their IP watered down with millions of fan license products?

Please, I'm not a multi millionaire company and I really have no sympathy for them, but law is law and their IP is their IP.

Tateru Nino

"If there could only be some sort of Fan License, where the fans could ask for permission to sell stuff in SL"

You *can* ask, and some people *do* this and get license for their stuff - and some people don't get it. Most don't ask.

Clare

I think your arguments is a bit dangerous and just a lame attempt to calm your consciousness.
Everything in SL is cosplay, a Shepard armor or a Lady Gaga outfit or a McQueen shoe. All we cannot afford in RL and we are huge fans of it and like to dress up like that in SL. And where do you draw the line then between "inspired" and "copied". The always reoccurring argument "put a lot of time and effort to make it" is just too vague. Check out the '3D MESHiah' Shepard armors on the marketplace. Is that still within or outside your definition of acceptable copyright infringement? (and by the paste he puts out his 'creations' they are most likely ripped from other platforms, but maybe i am wrong and he is a "good fan guy").
The Henry Miller Company and others were driven out of SL because LL didn't enforce their IP rights, and you would probably still say "but all the furniture designers were just making 'fan art' of design classics".
As Melponeme said above "but law is law and their IP is their IP". Full stop. If you want it, make it yourself. But don't open the door for everyone to calm their consciousness to wear McQueen rips.

Tateru Nino

I find the "celebration" notion to be particularly short-sighted, and I've written articles on that angle before - but I'll summarise.

Every now and again a blog pops up that copies my articles verbatim and - when challenged - doesn't see an issue with the idea, initially. It's a celebration of my work, and if only lots of people copied it for free to their own blogs so that others could see it, I would become a huge success!

Likewise a certain German print-media publisher who operated in SL for a while simply copied some of my work outright.

It was an honour, I was told, for one so lowly to have my work celebrated by such a big, rich and successful publisher, under someone else's byline... and if I didn't like it, tough; I was too tiny to concern them.

So, in both cases, people copied my intellectual property and said it was a "celebration" so, it shouldn't bother me and should be good for me.

What I see you arguing is that copying the intellectual property (trademarked character designs) of others is good for them because it's a celebration of the IP-owner's work.

Yes, there's some shades of difference - but isn't it the IP owner's right to make the call? That's why they're called intellectual property *rights* and not intellectual property *guidelines*.

Adromaw

@Melponeme_k, Actually if you think about it companies could make a lot of money out of the cosplay culture if they could convince them to purchase license at a suitably economic cost. It would be a source of revenue that they don't typically get as it stands. Having that come to pass now isn't as easy as said though.

@Tateru, Sucks you had to endure Plagiarism under that weak guise.

@Karma, the people Iris purchased the goods from, if they are not copyright holders (that status would need to be identified), then would have by your words crossed that line, making Iris's costumes illegitimate in your eyes.

Stone Semyorka

Iris, I agree in general with your points and applaud your courage in expressing them.

So many other people offer uninformed opinions here about things, which makes me sad for the larger group of lurking readers who assume incorrectly those commenters know what they are talking about.

Ann Otoole InSL

To Stone's point I think the responsible thing to do is Hamlet get a real life IP Law Firm to provide a real life accurate summary of what real life law is concerning this topic. Hey Hamlet you should have enough connections and mojo to get a real attorney to provide an article. How about it? Let's get this answered once and for all from someone that actually does know what they are talking about. I would hate for people to read this article and then make potentially regrettable and costly decisions based on what they read on NWN one day.

Hamlet Au

I have talked to a lot of lawyers about this, and the off-the-record response is basically, "Don't make money off their IP and don't do anything that makes the IP look bad (i.e. use the characters to spout racial slurs or whatever), and the company will probably look the other way." Thing is, they can't say that on record, because they're lawyers. However, at a Stanford law conference I talked with lawyers for Blizzard, EA, and Microsoft, and they went out of their way to say they support fan-made content, and don't like to pursue it with legal action. The other issue is the doctrine of fair use, which would probably apply to much or most types of cosplay and other fan content, as parody or editorial commentary. There's very little legal precedent around these issues, because they rarely go to court, which is probably a good thing for the rights holders, because they might not like the outcome. Even if they won, they'd just be winning a case that alienates their paying customers, and opens a Pandora's Box. Fan-made riffs on game/movie/TV IP are a massive, massive, massive phenomenon online, and Second Life-related stuff is actually a very small iteration of it. Go check out the Deviant Art site, for example, it's rife with it, and it has many tens of millions more viewers than SL.

Bottom line: If you think you understand all the legal and practical subtleties of the cosplay/fan content issue, you're probably wrong. And if you think most media companies by and large want to take legal action against cosplay/fan content, or even want you to ask their explicit permission to engage in it, you're *definitely* wrong. Despite all this, random Internet users who clearly don't fully understand the issues involved, still presume to police the IP rights of multi-billion dollar media corporations. Basically, they're engaging in corporate lawyer cosplay.

Ann Otoole InSL

In the end it is up to the IP owner to deal with it in SL. Taser did. Some other game companies have long long ago.

Bottom line for me is if not my IP then, while I may not appreciate it, there is nothing I can do about it. I have not seen any game rip content expose'd in name&shame threads on forums being removed despite claims made of IP owners being notified. And if someone ripped me off the legal costs would be way more than the content is worth. I've been ripped by a really big company before. If I hired a lawyer they would simply keep filing motions until I went bankrupt. So whatever. I recall Stroker spent something like $25k to get a $500 settlement.

The next debate would logically be about name&shame activities by non IP owners.

Ezra

@Hamlet

Agree totally. Well said.

I think its important Second Life users entrenched in the issue like Iris share their stance on the matter because ultimately it might influence Linden Lab's future stances on what we can create. We're already due Rod's mentioned "creators program", we already see indicators of it on Marketplace already. We can guess what the terms might be like through the mesh-enabling quiz, so its good to have a counterweight to strict interpretations of IP law.

It isn't a black and white issue. Like Hamlet said, there's a lot of internet-based communities that deal with this. DeviantArt, all the chat and forum roleplay communities, fanfiction.net, etc. Iris points out how the matter is even more complicated given Second Life is more visual and technically similar in its machinations when it comes to certain IPs like Mass Effect.

I don't think it helps if we try and shutdown any opinion in the debate as naive. There should be room for visual fandom in Second Life. It'd be an oddity of a creative community on the internet if there wasn't.

Adromaw

Actually there is a very simple and easy black and white solution that would take cut the name&shame game at the pass.

A virtual sales mechanic that forces L$0 dollar sales under a Fan Content flag with a provided statuary declaration. Those that would decide to not use that can stay in the naive "it'll never happen to me" drink driving game.

Fact remains as things are people are making money or its equivalent in SL. Whether any of you want to conveniently gloss over that or not. While TRU was more under direct stock distribution, it's a small leap to reproduction when recreating something.

So cutting off the name&shame argument by providing the tools to stay in that "off the record" zone might help those savvy to actually not play Russian roulette.

You don't know which company is going to no longer turn a blind eye to virtual markets other than the ones that already took action so far.

Surely the safest course of action would be to keep fan-made content as fan-made and out of the income business zone as the off-the-record suggestion stated.

If you really like that content it would serve better to find ways to limit its chance of removal, no matter how remote, to ensure you'll still be able to use it.

Deviant Art, now that it has been mentioned. While has the fan-made-content in stock, also has the name and shame game.

A user once posted an icon to a unit belonging to the Command and Conquer RTS (an Orca to be specific) boldly claimed the source of the upload without providing its due attribution and claimed it wasn't an infraction. Likely it was a bait post to test some sort of theory, the test was tested and so the content was reported. The deviation was removed under 24 hours.

You won't always be able to tell exactly who is going to take action at what point along the line. If it happens to be the service provider, the company that owns the branding (because you made a significant amount of money or did something politically "bad" with the image) or if it's yet again another threat of a governmental bill trying to pass.

Basically, just try and cover fan-content's ass out there will you? There are certain key words in Hamlet's comment response that specifically don't rule out action on specific situations even if the broad spectrum sit in the unofficial "it doesn't exist" line.

Tateru Nino

This is why we can't have nice things.

Imagine, for a moment, that I have spent the last few months working on a secret, creative project to bring licensed Mass Effect universe merchandise and other such things to Second Life, and was just weeks away from the launch.

But wait. There are copies and derivatives floating around in Second Life already. That would leave the rights-holder (Bioware) with essentially two options.

One would be to write-off the project thus far and just pull the plug. The other would be to take action, assert their rights against knockoffs being sold and traded, and essentially have the lawful holder of the intellectual property rights become the villain of the piece - which would also practically end up resulting in the plug being pulled from the resulting stench.

That's a lose-lose situation for Bioware, or any rights-holder.

Many of us here, and I'm including you, Hamlet, and Iris, are making our living precisely because those property rights exist. That our livelihoods ride on the bundles of rights that come with our copyrights and trademarks, and that we get to make the sole determination as to whether our work can be copied or derived (with allowances for fair-use, of course).

Our work lives or dies by those rights. Instead, what I'm hearing is that it's okay to violate those rights if it's - you know - fun or cool or really popular.

That doesn't seem right to me.

Ananda Sandgrain

@Tateru

Is that actually what just happened to you? Because otherwise I can't quite see why you would be equating fraud and direct copying with someone creating a new sculpture or costume of their own and selling it. I see no place where Arbalest is claiming to represent Bioware's trademarks, nor anyplace where they are claiming to have originated the Mass Effect style. It's a new piece of work that might arguably be called derivative and Arbalest might have trouble enforcing copyright on it because of that, but this is a long, long way across the gray divide of creativity into new work.

Pretending that any artistic work is wholly original will always be problematic. This is a more honest declaration of where ideas were taken from than most, so I don't have much problem with it.

Finally, coercion of IP under law would appear to be the source of your livelihood, but it isn't true. Your livelihood actually depends on the social convention of other people recognizing the value of your writing, going to read it at your site or contracting you to put your words on their site, and then you getting paid by advertisers because of your attention value. The law doesn't have nearly as much to do with it as the social convention of people choosing to reward value with money.

Laetizia Coronet

The other day I went shopping for some sunglasses on Marketplace. Just type "Wayfarers" and you will get a million results all advertised as such. Some even as Ray-Ban Wayfarer. Wayfarer is of course a registered trademark. Ray-Ban is as well, needless to say.

You could argue that that's fan art, too. And that you need to somehow include the trademarked name in order for your rip-off to show up when someone searches for wayfarers.

I believe it was Philip who once said that "they want Porsches and Ferraris just like they see in the movies" - or words to that effect. There's your problem. I could in theory design a fantastic sports car for use in SL but people will buy the car that looks like one they always dreamed of in real life. I could make a fantastic looking space warrior suit but people will want to be the Storm Troopers seen in certain Lucasfilm flicks.

There's your problem. Cosplay? Fan art? Meh. Lack of imagination more like it. Allowing the market to be awash with copied RL goodies, whether they be free "fan art" or not, kills SL creativity.

Once we had the Greenies, remember those? They were the closest thing to a hype I've ever seen inside SL. We need more of that, and less RL "cosplay" copying.

Tateru Nino

@Ananda When a Second Life user's content is copied or derived from and then sold or given away, Second Life users call that "stealing" (although it is more properly a rights infringement, which I maintain is more serious than actual theft).

When they take action against the offending party, Second Life users consider them justified or righteous.

When LucasFilm's or Bioware's or Paramount's or Taser International's or the Herbert Foundation's work is copied or derived from, and then sold or given away in Second Life, we call that... what? Fan work? Celebration? Homage?

When they take action against Second Life users, we call them greedy, or evil, or spoilsports, or just crazy.

The double-standard here has a particular stench.

Emma Geraln

Do you want to live in the world where you can't make a fancy dress costume? Or dress up as a Klingon, stick a Cornish pasty on your head and go to a convention?

If companies have a problem (ie it's in their financial Interest) they'll act; otherwise lighten up! its a bit of fun :D

Tateru Nino

@Emma I don't mind that at all - and indeed, you will find that much of that comes under the personal-use portions of fair-use exemptions. But that isn't really what's happening here.

Ananda Sandgrain

Oh, to respond to the notion that it's "stealing" when it's SL and not when it's RL, I don't see that this is really a double standard at work. It again has to do with the question of whether someone is directly copying the actual data or just the ideas.

Someone who makes and sells a digital duplicate of someone else's hairstyle in SL, for example. This is the sort of behavior that gets everyone angry. But if someone sees a hairstyle and decides to make their own that is very similar, well, that's much more a grey area, and I think for most people they few this sort of imitation and transformation from one medium to another as being a bit different from machine-copying, whether done in SL or elsewhere.

It's not a double standard, just a disagreement about where the line is crossed into infringement. All creative works are basically derivative, it's just some are more obviously based on prior work than others.

Saffia Widdershins

The law should apply equally to all, and we should support the law applying equally to all as a vital bastion of democracy (that's why it's called the rule of law). Which means that everyone's IP rights should receive the same protection, whether they are (grit your teeth if you must) multi-million-dollar corporations with a franchise on some much-loved films, or a mom-and-pop virtual store selling some rather lovely dresses that spring wholly from their imagination. And it doesn't matter if some large corporations encourage copying or appear to condone it by their behaviour (or wash their hands of playing whack-the-mole).

You might want to argue these are bad laws or confusing laws. The former happen (look at the things you could be hanged for in 18th century England!) and the latter make law a lucrative profession. But the law shouldn't be ignored by its citizens because it is inconvenient or spoils their fun.

The law can be defied - by criminals and also - occasionally - by people of high conscience. One thinks of the Quakers who have gone to prison rather than pay taxes that support the defence industry. Or even Randle and Pottle (http://www.guardian.co.uk/news/2000/oct/03/guardianobituaries.richardnortontaylor).

But is that the way here? Isn't the way here to campaign for changes in the law? Because the law can become outdated and unable to keep up with modern developments. One of the problems with IP rights is that they are constantly changing. At one point there was not even thought of identifying individual artists with a work (ok - this is definitely some time ago). But in the sixteenth century, the existence of the Stationer's Company and the fact that so many of Shakespeare's plays were registered with it suggests that even then people were fighting to defend their intellectual property from those who would rip them off. And, of course, his fights over the blythe disregard of copyright in the United States soured Charles Dickens relations with the US for many years.

I'm perfectly sure that the people who produced copies of Shakespeare's plays, or variations on them, plays based on Dickens' novels or their own continuations of the plots (I seem to recall that Dombey and Daughter was one that particularly irked Dickens - and was HUGELY popular) were all sincere admirers of their works (and perhaps not averse to making a little money on the side).

I'm with Tat on this one.

Tateru Nino

And I am with Saffia. If the argument is that the law shouldn't be the way that it is, or that IP rights should be something than they are, or that popular culture needs better accomodation than the law allows, then YES! Absolutely campaign to have it changed. It is your right to do so, and I shall wave flags and cheer.

(In fact, the US Copyright office has been taking submissions for months about how to better handle small creators, and individuals who may not have the resources to pursue claims in courts. Almost every SL creator should consider contributing to that process)

Just don't tell a creator that you only care about their rights when it is convenient. As Ananda said, these rights are largely a social convention - and thus it behooves us to support them, even when the shadow of the spectre of law is not imminent upon us.

Saffia Widdershins

Actually, so have the British government - and so, I suspect, many other governnments beside .

I've been involved with the British one on a low level - one aspect has been looking at how to deal with copyright in Virtual Learning Environments (VLEs). Currently, one is allowed to use, say, an illustration from a textbook as a slide in a lecture. But we now have the situation where those lectured might be filmed and published on the web ... what happens to the copyright then?

Rhetorical question. I could tell you, but I would hugely derail the discussion - the point is that many governments ARE looking at this at the moment, and we can all be pebbles in the landslide.

Ezra

I see no value in attacking what Iris posted based off a supposed situation where someone is operating some kind of a Mass Effect Wholesale Blowout Warehouse!

Of course if someone sets up such a thing and just blatantly cashes in off IP infringement that'd be a no-no. But attacking Iris' thoughts based off that scenario, which to my knowledge doesn't actually exist, speaks nothing to the idea of virtual cosplay and roleplay, things actually very prevalent in Second Life.

There's huge conventions every week of the year across the US where IP holders mingle with cosplayers who either infringed on their copyrighted designs by creating the ocstumes themselves, or purchased from a person who did. Conventions seem to have nailed how to handle this; cosplaying Shepard is fine, but no dealer/merchant would ever be allowed to setup shop selling N7 armor right there at the convention without EA/BioWare approval.

Tat, as far as "we can't have nice things", that makes sense written and read, but how is it at all reality? You think everyone showing up at BlizzCon costumed is wearing Blizzard only merchandising? Do those that show up at BlizzCon wearing IP infringing costuming leave without purchasing anything from Blizzard because of the practice? Does Blizzard abstain from visiting conventions where cosplayers are already infringing on their IP?

I think the discussion should be about how Second Life should operate given the clear analogs it has to physical and other internet-based communities. Pointing out IP infringement is IP infringement is obvious, no medal for that. The hard thinking is in figuring out why fandom in Second Life should be considered as acceptable as every other medium inclusive of some IP infringement companies find tolerable and even desirable.

Tateru Nino

@Ezra Iris is - as near as I can tell - specifically talking about commercial cosplay. That is, she mentioned that she buys them, and someone profits from that.

They may not be digital copies, but that still leaves the protection on derived works.

If I made myself an offline baseball cap, or a tee-shirt, and put (say) a Chicago Cubs team logo on it. That'd be fine. If I started giving those away or selling them, I'd have a small army of lawyers on my doorstep in no time at all.

Or you could make (or have someone make for you) a costume so that you could dress up as Terrell Davis of the Denver Broncos (the NFL have the commercial rights to his name and likeness) - but whether you paid for the costume, or whether you made it yourself, it's for personal, non-commercial use and that's a fair-use exemption.

Set up a stall and start selling it - or selling pictures of the fellow, and it's lawyer time again - you've just stepped on a right reserved solely for the rights-holder. As a costumer, you can probably sell one as a bespoke item for personal use, and profit from it. Beyond that, things get sticky.

I don't believe Iris commissioned her cosplay items (Iris? If you did, say so, because then we're talking about something else), in which case the seller has infringed on the right of reproduction and there appears to be no fair-use exemption.

Fogwoman Gray

The "debate" about fair use and whether what an individual is making and possibly selling is infringing is pretty silly.
It doesn't actually matter what YOU think is fair. It only matters if you are willing to put your time and money on the line by doing something sketchy that at best may get you a "cease and desist" and at worst may end you up being made an example of in court.
There are laws protecting holders of trademarks. Trademark holders are required to protect their tradmarks from infringement or they will lose those trademarks. They may totally agree with your rationale and justification for why you are a special snowflake who should be exempt from those laws. But you have given them no choice but to come after you in order to preserve THEIR rights.
And you can post all day long about "celebrations" and "fan art" and "free publicity" but at the end of that day can you afford to be sued?
Making your case here means squat. You had best get legal advice on making your case in court BEFORE you are served.

Ezra

Even though there's no incident here, this whole debate isn't without precedent. Pretty much my entire opinion on the matter is framed by what Tateru wrote on her blog during the Battlestar Galactica deal:

http://dwellonit.taterunino.net/2010/11/25/battlestar-galactica-content-axed-in-second-life/

"Some argue that fan-based use of media themes and properties like this is good advertising, a homage, and increases interest and sales in books, DVDs and other media-related properties. They’re right, too.

Others argue that it constitutes unlawful infringement of the copyright- and trademark-holder’s rights. They’re also right.

Somewhere in between the two, there’s probably a gray area of some fair-use middle ground too."

Half a year later Universal agreed with this "gray area"

http://nwn.blogs.com/nwn/2011/02/fan-made-battlestar-galactica-content-allowed-in-second-life.html

"Users may continue to create and interact with each other as BSG fans... you may re-create BSG items under the fair use act. Owners of any re-created items sold and or purchased will be approached by the company's lawyers and handled accordingly."


I believe that whole debacle illustrated exactly how this isn't a black or white issue, and how companies just might be able to see the gray areas if we do ourselves. It doesn't help at all if we're telling each other to get a lawyer when what we need instead is brass in Linden Lab's balls to dare try and promote and explain Second Life as a place partially of fandom where companies' IPs are taken care of much the same was as conventions take care of IPs, i.e. attack the profiteering but leave the "celebration" be.

I like Iris' cosplay analogy a lot because I think that's something companies like Universal can understand. If one of the Final Fantasy sims for example were attacked by Square-Enix tomorrow, an analogy like Iris' would help. Labeling the users that hang in those sims as lawyer-needing IP infringers wouldn't very much.

Tateru Nino

@Ezra Indeed, and it would have been so much simpler and less disruptive if people had simply *asked* Universal first. In fact, they might have even gotten a better arrangement if they had.

Ann Otoole InSL

Wow lots of comments. I guess we can see why really big name fashion designers incorporate their trademarks into their designs. Trademark law is not nebulous.

Hamlet Au

Asking a rights holder for permission to make and enjoy fan-made content comes with its own risks that are generally unfair to the fans. Even in the case of Universal and fan-made SL Battlestar Galactica content, the studio took quite awhile to respond. And the BSG fans were very lucky they got any response at all. They were even more lucky (and in very rare company) that they got a relatively generous response. It's more typical that the rights holder simply asserts all its rights and answers "Absolutely not", even refusing fair use variations. (It's no surprise that large corporations and folks like the EFF have very very different views of what constitutes fair use, and the doctrine is still in the air -- again, there's very little usable legal precedent around this.) And I believe in the case of the BSG fans, Universal still maintained and asserted the right to pull the plug/sue the SLers at any time. So I'm not even sure how better off they were by asking.

Look at it from the company's point of view: If they explicitly allow some fans to engage in some fan-made infringements, they're establishing a precedent that could come and bite them in the ass later. Plus, they have to devote hours and hours of billable lawyer fees going through the fan request, establishing that it's reasonable, carving out an exception, etc. etc. That costs them thousands of dollars, often with a dubious return on their expenses.

Again, when it comes to fan-made content, all this is why companies generally prefer to look the other way. Directly asking them forces them to stop looking the other way. And generally speaking, neither side benefits when they have to stop looking the other way.

Tateru Nino

@Hamlet So, it's better to infringe on their rights and just hope they don't do anything about it?

Actually, I'd pay money to see someone try to argue this line of defence (or the celebration/homage/fanwork defence) in front of a judge. That would be a heck of a show.

Jim Tarber

I think the answer here is pretty simple, and very close to Hamlet's first comment.

Creating an avatar that is your best approximation to an IP-protected character is not much different than wearing one as a costume at Halloween or Mardi Gras or other costume events. Virtual words are year-round costume events. I'm not going to get sued for being Spiderman at Halloween.

The difference comes in when you start making money off the name of the character. My armchair lawyering here says the creator (or their designated IP holder) is legally entitled to be the one to make money off their creation. The other case where they might jump in is if you use your creation to hurt the reputation of that character. If you create The Amazing Spiderperv who looks a bit too much like Spiderman but is constantly flashing his junk at senior citizens and children, you might expect a call from their lawyers, especially if it starts making money, or gains a wider audience.

I would expect that creating an avatar in Second Life or other virtual worlds for your own use or as a freebie (that fairly accurately reflects that character) is not going to be a problem. However, if you start *selling* them, especially under the name of the original character, then they might be forced to take action to stop it or set a precedent that they won't enforce it against others making profits from their characters.

Pussycat Catnap

Cosplay occupies the same cultural space as parody.

Fanfic is generally protected as parody, and I suspect if a company were stupid enough to sue its own cosplayers, the fans there would prevail on a legal analogy to parody.

And in fact, every fan who makes their own 'cheese-head' before going to a football game in the USA is in effect a cosplayer - this isn't just a Japanese imported tradition. White people have been doing it too (which always seems to somehow make things sound more legit to whites...).

Though it would be hard to imagine a company committing a more stupid act - unless they were run by some of the same folks as run LLs... ;)

Most 'game' companies do in fact sponsor fan art and cosplay contests and events. Its near free viral marketing. Look to many MMO websites and there's usually a fan-art section somewhere.

Selling cosplay merchandise is another matter - and hits into questionable areas. Many cosplayers for games do sell arts and crafts. But go try and sell Halloween costumes of your favorite cartoon characters...
- are the game crafts just an area not yet litigated with unknowing fans, or would it survive a lawsuit?

Tateru Nino

Fanfic is routinely closed down by lawyers - it never gets to a judge. Most buckle after a cease-and-desist, and those that don't settle as soon as a lawsuit is filed.

Parody is a tricky thing with trademarks. It's only *actually* parody once a Judge declares that in the final judgement, or if the would-be plaintiff's lawyers think they stand no chance opposing it in court. Until then it is only *potentially* parody.

Iris Ophelia

@Clare I actually specifically addressed the issue of ripped game assets in this post and in my original FemShep post, so my stance ought to be abundantly clear.

As for the Battlestar Galactica debacle, what often gets over looks is that a BSG MMO was being launched, and the fact that there was already a BSG experience available online for free meant that it was crossing into the realm of competition. Some people WOULD choose BSG in SL over BSG's official environment, so I expect that their decision to act and to take it as far as they did was heavily related to that.

And regarding fan fiction, there are indeed many lawsuits, but a vast majority are from western authors who are trying to avoid the situation that Ursula K. Le Guin (I think it was, or possibly Anne Rice?) got into when a newly released book of hers mirrored series fanfic that had been shared online and she was accused of plagiarizing from it. A lot of authors discourage their fans from writing fan fiction because of this concern for possible coincidental overlaps, and I would argue that fanfic based on written works can still be a kind of competition for the original as well. Of course, then there's the issue of fanfiction based on real people, but that's another story altogether...

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