Can You Sell a Second Life Screenshot as NFT Art? Probably, But Beware Second Life's "Gray Interesting Mysteries" Around User IP Rights

UPDATE, May 7: Linden Lab relatively recently updated its TOS to address the issues discussed below -- read this follow-up post.

With hype over NFT digital art still hyping, Second Life users are asking the next inevitable question:

Is it possible for an SL photographer to sell their digital photos as NFTs? Lately, selling NFTs is a hot topic. We see digital art selling at marketplaces like Nifty Gateway for obscene amounts. Obviously, that's rare. Still a number of photographers have come to me lately asking if photos taken in Second Life are saleable as an NFT for a profit -- even a small profit -- on marketplaces like Nifty Gateway or Rarible. The TOS is so confusing. 

The short answer is Yes, but the actual answer is much, much more complicated. That's because Linden Lab the company allows users to retain ownership to anything they make on the Second Life platform, which has led to game companies, book publishers, TV networks, movie studios, even fashion brands, creating and profiting from content that was originally made in SL -- all totally permissible, from Linden Lab's point of view.

However, the very fact that SL users retain the IP rights to anything that they make in the virtual world leads to many "gray interesting mysteries" -- in the words of Fred von Lohmann, who said them when he was staff attorney for the Electric Frontier Foundation:

Regarding copyright infringement potential, Von Lohmann noted, "Second Life in some ways is worse than real life." That's because users retain the underlying intellectual property rights to their SL creations.  And after all, as Fred pointed out, you can walk down the street in real life without worrying that the textures in the sidewalk are copyrighted. "In Second Life these are gray interesting mysteries" around the law, he added.  Something worth considering for people who publish screenshots or machinima extracted from SL. It's been argued that if you run a photo of a Second Life street, you don't really need to get the permission from the creator of every single item in the frame, just as you don't need to do so when you take a photo of a New York City street. However, that assumption has not yet been tested in court.

As Von Lohmann added, most of the Second Life community is unlikely to be aggressively litigious.  But if Second Life continues growing, I believe that sense of good faith won't always hold. 

Fred was talking about legal concerns around making professional machinima in Second Life and not NFTs (this was back in 2009), but the underlying principle applies: If you create a Second Life screenshot, Linden Lab's gives you the right to sell it, including as an NFT.

However, if the screenshot depicts any SL content created by other users, you must technically get their permission to depict it. 

So consider an SL screenshot of a fashion model on a virtual street. Before selling it as an NFT, you must technically get permission from the user who owns the avatar -- and all the content creators who made fashion accessories, avatar textures, even poses depicted on that avatar model.... and all the creators of all the content depicted in the background. (Street signs, buildings, the street itself, etc. etc.)

So what happens if you don't get all those permissions, and sell the image as an NFT anyway? Probably nothing -- unless the NFT becomes profitable. Which is usually when rights holders and their lawyers come calling. And given the fact that top content creators in Second Life make six or even seven figures in US$ sales, you can bet they will.

Don't believe me? Consider the notorious Bunny v. Horsie case, for starters.

Pictured: Afrofuturist artist Nettrice Gaskins who sometimes shows off her NFT-ed neural network art in Second Life.

Comments

[Adeon Writer]

Anyone who cares about the environment should be against not only NFT’s but crypto in its entirety. Determining worth based on the amount of wasted resources used can do nothing good.

[Wagner James Au]

There are NFTs that use a proof-of-stake blockchain that don't have the same environmental issues:

https://nwn.blogs.com/nwn/2021/03/nettrice-gaskins-afrofuturist-nft-tezos-blockchain-tupac-deep-dream-art.html

[Joey1058]

The thought has crossed my mind. Not only images from SL, but from IMVU as well. I would attempt to do my own art, but some of that stuff wouldn't hold up against a kindergartener's refrigerator scribble. As I'm not likely willing to hunt down weeks worth of legal sign-offs, I think I'll pass.

[irihapeti]

Hamlet wrote: "However, if the screenshot depicts any SL content created by other users, you must technically get their permission to depict it."

the Second Life Terms of Service opts us in to granting a license to other users to take and distribute snapshots of our stuff:

"2.5 You also grant Linden Lab and other users of the Service a license to use your Content in snapshots and machinima that is displayed in publicly accessible areas of the Service.

You agree that by uploading, publishing, or submitting any Content to or through the Servers for display in any publicly accessible area of the Service, you hereby grant other users a non-exclusive, worldwide, royalty-free, sublicenseable and transferable license to photograph, capture an image of, film, and record a video of the Content, and to use, reproduce, distribute, prepare derivative works of, display, and perform the resulting photograph, image, film, or video in any current or future media as provided in and subject to the restrictions and requirements of an applicable Product Policy or other policy. The foregoing license is referred to as the "Snapshot and Machinima Content License."

we have to opt out of this auto-opt in: "... subject to the restrictions and requirements of an applicable Product Policy or other policy."

we can opt by publishing an applicable policy notice on our products, our profile or in the covenant of our parcel. The Snapshot and Machinima Policy addresses the parcel covenant notice specifically:

"(a) 1: For Snapshots, check whether the covenant for the land prohibits snapshots. If it does, then you need special permission from the land owner to take the snapshot. If it allows snapshots or doesn’t address them, then you do not need special permission from the land owner as long as you comply with any terms that may be in the covenant."

[Wagner James Au]

Hmm good point, that's a relatively new addition that I missed. But I'm super skeptical if it would stand up in court. I'll do an update though, thanks!