SL Mesh Wireframes Avatars Probably Can't Be Copyrighted, Says RL Lawyer (Comment of the Week, UPDATED)

UPDATE, 7/4: Agenda just made some clarifying comments here which you should also read, and I've corrected inaccuracies in my post title/text to reflect them.

A real life lawyer who lectures and practices in Second Life as Agenda Faromet (and sometimes posts in comments here as "Vaki") made a really good point in NWN comments last week (also summarizing this blog post she wrote): Mesh avatars wireframes and mesh body parts developed for Second Life avatars can probably not be copyrighted. This has, as she notes, "implications for those [SL] creators who are investing significant time and money into making mesh body parts, and hoping to be able to protect them." However, she argues, they probably can't. Here's why:

"Short version: the one good case we have on copyright in wireframes found that the specific ones in question weren't copyrightable, because all they did was reproduce, in wireframe, something that already existed.

"Mesh bodies are reproducing something that already exists: the SL avatar mesh. Even if they aren't actually using the avatar mesh itself as a guideline, or looking at the actual SL avatar mesh, they're derivatives of the avatar mesh. With a derivative work, a creator can only have a copyright in his or her own independent creation, so -— assuming Linden Lab is permitting all uses of its avatar mesh —- a body creator could not get a copyright in the entire body, but only in the things that are different from the avatar mesh.

"To clarify," she goes on:

"Let's say I go to the museum with my sketchpad and colored pencils, and I sit down and sketch The Birth of Venus. I do a beautiful job, I get it exactly right, and it's a glorious picture. That sketch is entirely my work. I did it myself. But I can't get a copyright on it, because it's a derivative of another work. If I've added something to it -— maybe I've made Venus look like a Swimsuit Illustrated model —- I could claim the things I've changed. But I can't claim the things that are derivative. (Of course, this is just under US law. Other countries have different legal analyses.)

"This question -— what is and isn't derivative -— is an awfully difficult one to settle out, and would only really be sorted out in court. So right now it's all hypothetical, and just sort of entertaining to toss around. But it does have implications for those creators who are investing significant time and money into making mesh body parts, and hoping to be able to protect them.

"...[B]elieve me, I'm a big believer in copyright minimalism, so I'd love for people to be able to create more derivative works far more easily. Unfortunately, that's not how the case law on derivative works goes."

There's much more conversation around this comment thread here, and on her blog.

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Image from Vaki's Flickr stream.

Comments

[Dale Innis]

Well, yeah... It would be exactly the novel / original / nonderivative parts they'd be expecting to copyright. So "can't be copyrighted" is kinda strong...

[Dale Innis]

Well, yeah... It would be exactly the novel / original / nonderivative parts they'd be expecting to copyright. So "can't be copyrighted" is kinda strong...

[Zauber Paracelsus]

I think I can offer some clarity (or at least some more information). The default avatar mesh is available for download at http://static-secondlife-com.s3.amazonaws.com/downloads/avatar/avatar_mesh.zip

The following is a copy of the LICENSE.txt file included with the download archive:

COPYRIGHT AND PERMISSION NOTICE

Second Life(TM) Avatar Content Creation Aids. Copyright (C) 2005 Linden Research, Inc.

Linden Research, Inc. ("Linden Lab") licenses the Second Life Avatar Content Creation Aids and other works in the files distributed with this Notice under the Creative Commons Attribution 3.0 Unported (CC BY 3.0)
License, available at http://creativecommons.org/licenses/by/3.0/legalcode. For the license summary, see http://creativecommons.org/licenses/by/3.0/.

If you distribute any copies or adaptations of the Second Life Avatar Content Creation Aids or any other works in these files, you must include this Notice and clearly identify any changes made to the original works. Include this Notice and information where copyright notices are usually included, for example, after your own copyright
notice acknowledging your use of the Second Life Avatar Content Creation Aids, in a text file distributed with your program, in your application's About window, or on a credits page for your work.

[Pierre Ceriano]

As a retired lawyer myself I understand the argument rightly advanced.

But it allows content rippers to argue their stuff is derivative from LL avatar...

So what to do to balance this ?

[Tesla Miles]

That's interesting, does it mean that all skins made for the SL avatar cannot be copyrighted, as they are all based on the UV map layout created by Linden Labs therefore a derivative work...

Also what happens if you make an applier for another creator's mesh... technically, you cannot copyright your work as it is also a derivative work. The creator of the mesh for which you made the applier would own the rights to your work?

[Landaree]

I'm not sure I understand the hypothetical example of a sketch of the Birth of Venus as a valid comparison to designing a mesh body *without* using the default SL avatar as base or guideline; the sketch would still be using either the overall imagery of that painting or, at the very minimum, the idea -which would be copyrighted, thus the intellectual property breach. By inference, would this lawyer stating that Linden Labs has copyrighted the very idea of a human body?

[leliel]

This argument sounds incredibly weak to me, and rather childish. The SL avatar itself is just a wireframe copy of something that already exists (humans). You can extend this argument to all character models in every game ever made. For that matter the vast majority of content in games are just wireframe copies of real world objects. Is this person trying to put forth the argument that almost no content in any game ever made is copyrightable?

If you want to get even more absurd you can replace the word wireframe with paint and now guess what? Like I said, weak and childish.

[Adeon Writer]

The author is misinformed and is speaking about SL shapes, not rigged mesh.

Their opinion should be disregarded as confused and uninformed.

[Yoshiko]

The guy that wrote this is a lawyer? Remind me not to hire him. Mesh is created outside of second life from scratch and are not derivative works unless they actuality began with the base avatar mesh from sl. for the authors argument to be true anything that could be uploaded into sl wouldn’t be copyrightable which is very much preposterous.

[Serene Jewell]

Maybe people should start using the Make Human avatar. It is 100% open source and it is getting much better with each version.

[Serene Jewell]

Sorry, forgot the link. http://www.makehuman.org

[irihapeti]

is pretty weird

a IP lawyer goes: here is the legal case in which the ruling is this

another lawyer then comments: yes thats the ruling

then everyone else not a lawyer, jurist or judge goes: pffft!! what they know

[Vaki]

Ugh. Sorry. I didn't realize this had been posted. I'd've popped in here and commented. My comments make a whole lot more sense in context — the excerpt quoted is a little confusing.

Let me recap.

First: I wasn't talking about avatars. Your avatar is way more than just the wireframe. Your avatar comprises your shape, your skin, your AO, your clothing...and that's not at all what I was talking about. I'm not even talking about just the shape, which you can edit with sliders. I'm talking about mesh wireframe. The mesh wireframe parts that make up or replace body parts, for instance.

Note that I'm not referring to all mesh items, because most mesh items in SL are more than just the wireframe, or they are not an adaptation of an already-existing item.

Second: I wasn't saying that mesh body parts infringe the Linden Lab avatar. I went into a lot of detail about that over here.

Third: man, I can't recap everything from the other thread. It was a long thread. I'm sorry Hamlet quoted the example of sketching the Birth of Venus if it was confusing, but yes, it's true, even if you create an item all by yourself, outside of SL, without using any actual pieces of the SL avatar, but your goal is to adapt, modify, and improve the SL avatar, it's a derivative work. You can — as I explained over there — even make a derivative work entirely accidentally, without meaning to use any other work.

Fourth: Not a guy. That's why Hamlet refers to me as "she." Yes, I'm a lawyer. And yes, understanding derivative works is really, really hard. I certainly understand your frustration with the point I was making, but before you dismiss it entirely...I'm trying to help, not trying to troll.

Side note to @Pierre Ceriano: I totally agree, and that's a problem...but it's a problem we see a lot in other areas of technology like app development, too, just as it's a problem we see in fashion design. I think there are some good and innovative solutions out there.

[Hamlet Au]

Thanks Vaki, and sorry for misinterpreting -- I've updated the post and pointed this clarifying comment of yours.

[Darien Caldwell]

Sorry but the wireframe is fully copyrightable, as it's as unique as a fingerprint. How you arrange the vertices, and how the vertices are connected by edges can be done a limitless number of ways.

Just as how the words on a page come from a standard vocabularly, but can be arranged on a page in limitles ways. (it's called a book, and guess what, it's copyrightable).

It's the same thing. So if you're saying a mesh can't be copyrighted, then you're saying a book can't be copyrighted either.