Second Life's Terms of Service Allow Users to Sell Screenshots of Others' SL Creations (I.E., In Theory, As An NFT) - But Would It Hold Up in Court?

Important comment/update to last week's post, when I cautioned against creating NFT from Second Life images. When the EFF lawyer I quoted referred to the "dark interesting mysteries" around IP ownership of user-created content in SL, Linden Lab had not addressed derivative works in its Terms of Service. Since then (in 2017, it looks like), the company has:

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.  

Reader irihapeti noted this clause, which effectively requires content creators to opt out from people using their content in an SL screenshot for commercial or other purposes:

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 out 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."

So on paper, this looks like wording that would, say, cover creating screenshot images, minting them as NFTs, and selling those NFTs -- without first having to get permissions from every single content creator whose 3D work is featured in a given screenshot.

That said, many SL content creators do explicitly prohibit snapshots on their land/in their store.

More key, I don't know how well this clause in the TOS would stand up in court. And if you created a profitable NFT which featured the works of wealthy SL creators who can afford a good lawyer, would you really want to find out there?

Comments

[Annie Heartsong]

Indeed. Keeps this in mind. Even tho I operate a studio within the Second Life grid where I take snapshots (or screenshots) of myself for the marketplace, I do try to be careful in what I wear, poses, etc, because different creators have different terms for using those things. I also try and do the screenshots in my own creations as well, like the rooms I create in the fun house, etc. Bookmarks this post for future reference. :-)

[pixels sideways]

The LL/SL platform TOS everyone agrees to clearly states anyone can use publicly displayed content in SL in any media outside pf SL. Content creators can't override this with disclaimers. That would be like creating hate content targeting a protected group that violates LL/SL TOS but thinking if you put your own disclaimer on it, that makes the platform's TOS inapplicable.

What you can't do with publicly displayed content is violate it's creation copyright - by specifically coping or copybotting original content them claiming it is yours and selling it as such.

Derivative works featuring copyrighted/trade marked content is tricky. I researched this many years ago based on the Mattel/Barbie lawsuits surrounding an artist's use of the trademarked Barbie dolls that were used in an artist's work in which Mattel found was offensive and damaging to their brand. In a recent case, the artist's right to use Barbie dolls in his work prevailed.
https://www.aclu.org/press-releases/judge-says-no-mattels-effort-stop-artists-photographic-critiques-barbie

[irihapeti]

@pixel sideways

you're talking about derivative works which fall under fair use. Which is not the same thing as taking snapshots

and.. if our derivative work is derived from a snapshot which the SL land owner/content creator has precluded us from taking then we have no license to publish/distribute our work

the policy notice is the same as a NO PHOTOS posted notice found in privately-owned concert venues/museums/art galleries/etc open to the public. Second Life is a privately-owned venue open to the public

that a privately-owned venue may be open to the public doesn't make it a public venue, it remains a private venue. Photos, taken inside private venues which have a posted notice, can be taken from us, as can any work that we may derive from them

ps. just add that is always best to get a formal legal opinion before getting into anything like Photography as NFT