The legal rights to your 'Second Life' avatar

A Second Life land developer has convinced YouTube to pull down an off-color video of her virtual self being harassed during an interview, raising novel questions about the legal rights of virtual-world participants.

Last month, Anshe Chung Studios demanded that YouTube delete the recording, citing the Digital Millenium Copyright Act, which generally requires Web sites to remove material that infringes on copyright laws. The controversy stemmed from video taken during an interview with Anshe Chung, the virtual world's biggest land owner, conducted by CNET News.com in its Second Life bureau last month.

During the interview--which took place in a digital theater in front of dozens of audience members' avatars--a group intent on sabotaging the event attacked it with 15 minutes of animated penises and photographs of Anshe Chung's real-life owner, Ailin Graef, digitally altered to make her look like she was holding a giant penis.

Afterward, a video of the attack was posted on YouTube. When Anshe Chung Studios filed a complaint with the popular video service claiming that Graef's copyrights had been infringed because images of her avatar were used without her permission, YouTube promptly removed the video.

Anshe Chung Studios has also, in a private e-mail, alerted The Sydney Morning Herald, which ran a December 21 story, along with a screenshot, on the attack, that it should take down the photograph because the newspaper, too, was hosting an infringing image.

"I have to point out to you that you, most likely by accident, posted an image that contains artwork copyrighted by my wife Ailin Graef and by Anshe Chung Studios, Ltd. and without obtaining our permission to do so," Guntram Graef wrote to Sydney Morning Herald reporter Stephen Hutcheon in the January 5 e-mail.

"The source of the image, a video posted on YouTube, has already been removed. We can not authorize the use of this image and the replication of the artwork and textures of the Anshe Chung avatar in this context."

While it's true that Second Life users own the content they create, a legal expert and others in the online news business, as well as the virtual world's publisher, Linden Lab, argue that the use of images or video from the "griefing" attack are almost certainly protected by fair use doctrine.

Fair use and creativity
"Copyright law is applicable to works created in Second Life. Copyright law includes fair use and it includes provisions regarding infringement," Linden Lab wrote to CNET News.com in a statement Friday. "Anyone may assert copyright claims, and anyone may assert fair use claims. Linden Lab generally doesn't take a position on disputes to which we are not a party. However, it would be correct to point out that the laws of fair use are consistent with the culture of creativity and collaboration that forms a large part of Second Life."

YouTube did not immediately respond to a request for comment, and Guntram Graef would not respond on the record to a request for comment for this story.

While the video had been removed from YouTube, which is owned by Google, another version of it was currently being hosted on Google's other video service, Google Video.

To Jason Schultz, an attorney with the Electronic Frontier Foundation, the issues surrounding the DMCA complaint are pretty cut and dried.

"Since the general theory (in Second Life) is that you own what you create, she completely owns the copyright in her avatar," said Schultz. "But that said, she absolutely has no rights under fair use to stop people from taking screenshots or screen captures of her avatar in Second Life."

Schultz also drew a comparison between this situation and a real-life hypothetical.

"The analogy I would draw is if there was a car accident in downtown New York," he said, "and the driver happened to be wearing an Armani suit, and there was a photographer who took photos and published them. That photographer couldn't be sued by Armani. News is news. And fair use gives news reporters and others the right to report what they see and hear, even if it includes your copyrighted work."

Of course, fair use doctrine, regardless of how well established it might be, has not been fully tested when it comes to a virtual world like Second Life. But to some observers, the issues surrounding the doctrine are the same, regardless of whether the medium is real life or a digital environment.

Ailin Graef "can control tracts of land in Second Life all she wants," said Xeni Jardin, a co-editor of the tech culture blog Boing Boing, which published a story with an image on the griefing attack last month. "But she can't control the rest of the Internet where I and other journalists like to live and speak freely. And we intend to continue to do that."

Jardin said Boing Boing had received an e-mail last month from Guntram Graef demanding that the site remove the image associated with its story because, Graef contended at the time, the image perpetuated "cyber-rape."

Boing Boing has also been sent a DMCA takedown notice by a man named Michael Crook, who claims his image from a Fox News interview was illegitimately appropriated. Jardin said Boing Boing has no intention of taking down either the Crook image or the Anshe Chung image.

However, Boing Boing and The Sydney Morning Herald both say they are consulting lawyers in this case.

"It's concerning to me that it seems like there's been a rash of incidents like this," Jardin said. "More and more people who want to stop information from flowing are realizing that they can use the DMCA in an abusive way that it wasn't intended for, to stop free speech."

[mh20932]

Should it really be called 'second life'?

...when none of its users have a 'first life'?

[thatxbxtchxnicoll]

Bad analogy, and the stance is wrong.

The Armani analogy used in this story is wrong. It's not the same.
What was done was done intentionally, and done to defame the
character, and was done by using the characters image. It shouldn't
matter if the person did it with a screen shot or with the persons
real picture, defamation is defamation.

Fair use does not cover defamation, harassment, or griefing.

[schubb]

Actually still wrong

There is very little difference between this and a political cartoon. Also as this was a "public"(in as much as it could be public) forum it can be recorded unless it was specifically expressed as a no recording venue.

It is no different than recordings of hecklers at any other public venue.

[gggg sssss]

parody

parody is fair use - even if you dont like teh parody. Second life = get a life

[cjovalle]

Then they shouldn't have used the DMCA.

Fair use covers lots of things. News of defamation, harassment, or griefing may certainly be covered by fair use, including the use of images.

Furthermore, if this were a defamation and not copyright issue, then they shouldn't have used the Digital Millennium Copyright Act notice and takedown method, which is explicitly related to copyright infringement. Of course, they are claiming copyright infringement, in my opinion wrongly.

[Booperkit]

Any publicity...

I think there will be a time in the not too distant future when these folks complaining about the 'unfair' use of their ummm....copyright-protected avatars...*cough* will be googling themselves to relive their 15 minutes of 'fame'. Hollywood celebs make regular fools of themselves over complaining about silly paparazi pics shown without their consent - these people in secondlife are in the limelight right now in a very small way for a very limited number of people - i suggest they enjoy it. I myself had a request from someone who saw her avatar's picture on snapzilla and wanted it removed. It was taken nearly a year ago (obviously she had been doing a search for pics of herself in the first place)and she didnt appear to like it as it had a pic of her a newbie wearing a *gasp* free skirt - whereas now she is all grown up and much better at dressing up her little avatar doll. Yes reality check. Avatars are dolls not the real us. It was suppose to be fun people.

[thatxbxtchxnicoll]

By your stance...

Someone stealing artwork off of someone else's siteis also in the
right.

Here's a little example for you. A couple years ago, I had a
section on my website that showcased my paintings and
drawings. In there, it also had a drawing that my daughter (who
is 5 now) did for me. Not too long ago I was browsing myspace,
and I saw my daughters picture being used on someone else's
page, saying "look what my daughter drew for me." I did not go
looking for the picture, it's the last thing I would have thought
anyone would steal, but it's still wrong, because that person that
is posting it is lying about where it came from. Why should it
matter what the source of the copyright is? If you own
something, you wouldn't want someone else taking it away and
using it for themselves without asking you.

Another case in point. I'm a webdesigner, and I have a portfolio
showing work that I have done. Is it fair use when all these
people steal my images and coding?

[HandGlad2]

DMCA abuse

"More and more people who want to stop information from flowing are realizing that they can use the DMCA in an abusive way that it wasn't intended for, to stop free speech."

...Which is exactly what people and organizations who lobbied against the creation of this ill-conceived law predicted would happen if it passed.

[tocam27]

But then...

...if that is the case, isn't it a matter of time that this law will be declared unconstitutional because it will infringe upon constitutionally protected speech?

If the DMCA were never used abusively then I don't think too many people would have an issue with it, however abusing any law to circumvent our constitution will eventually get that law declared, well, unconstitutional on those grounds. So let's hope people keep abusing the DMCA so we can have the law invalidated!

And this Anshe Chung needs to get a real life, or at the very least get laid. What the hell is wrong with these people? I suppose the socially inept ones will keep logging on to get their jollies in a make belief world, lord knows they can't make it in the real one...

[highimpact]

How on Earth is this "High Impact"?

Yet another story about yet another virtual tempest in the teapot of Second Life. Not exactly "high impact."

And I think the issue being covered here is about "right of publicity" with respect to avatars in virtual worlds, not "copyright" per se.

That might be an interesting topic for an article... But how about more than one example? I'm sure this isn't the only such dispute over one's avatar-related right of publicity (or even right to "privacy" - whatever *that* is).

As it is, this article should be moved to the Second Life Picayune tab.

[Jerry Dawson]

Missed the story....

So the woman in question has ammassed a fortune in 'real estate' in SL.... the question is, if you don't have to sleep or eat or work, why do you need to own property in SL? Never mind the question of who ownes an avatar created according to the rules of the game...

[ghostofitpast]

The history, not the incident

The "high impact" comes not from the specific incident being reported but from where that incident is situated in a broader view of history. In this case the subject of historical study happens to be the emergence of governance in different gatherings of individuals, whether they are the Children of Israel wandering around in the desert after being released from their bondage in Egypt, the Founding Fathers of the United States, the enlightenment philosophers behind the French Revolution, the early settlers of Deadwood, or even the "wizards" of LambdaMOO. The scope of that impact is still best captured by Marx in the opening sentences of his EIGHTEENTH BRUMAIRE OF LOUIS BONAPARTE: "Hegel observes somewhere [although no one today is quite sure where!] that all great incidents and individuals of world history occur, as it were, twice. He forget to add: the first time as tragedy, the second as farce." Alas, even Marx could not conceive of a society so unaware of history that there could be more than one iteration, with the farcical gradually degenerating into the mere trivial.

Nothing that matters in this episode is in any way new. All that matters is that we are hauling out the same story again and affording it less reflection than any of our predecessors did. The case of cyber-rape in LambdaMOO seems to have engendered more serious reflection and deliberation than any successors in environments with richer media; and the result was a more sober appreciation of the need for governance in virtual worlds. As that appreciation became a distant and faded memory, the Marxian iterations progressed beyond farce (which at least has literary merit) to the mindless chatter of the blogosphere whose denizens continue to be better at generating new content than at reflecting on the content that is already out there. The "high impact" comes from the continuing perpetuation of egocentric oblivion that lies at the core of the world the Internet has made!

[Prokofy Neva]

Chill on the Media

It's definitely abuse of the DMCA to use it in this manner. The victim could reasonably make a case for libel or even property damages (virtual properties can be damaged, too, it's a DNS attack) and pursue that legal angle, but it's an misuse of DMCA to invoke "copyright" on fair-use materials. It's an unnecessary chill on the media.

Here's the editorial the Second Life Herald has:
http://www.secondlifeherald.com/slh/2007/01/greeterdan_wimp.html

[unknown unknown]

Way to draw even more attention to it

Had they not been in such a rush repeal the freedom of the press, this probably would have died pretty quick. Now they're bring even more attention to it, thus prolonging it's life and just asking for it to be posted in more places. It's impossible to completely remove something from the internet, just any celebrity with sex tape.

[Len Bullard]

This is Free Publicity for SL and Anshe

Tell me you aren't so naive as to take this story seriously. This is a Hollywood catfight: faux.

It is one of the oldest gimmicks in the marketer's trick book for getting publicity from the press: set up two divas, get them to make a public display, then reap the benefits of free publicity. In this case, it simply uses repeat postings to push the PageRank of the names involved to the top of the search rankings.

There are no legal issues here. This is CNetAsTabloid.

Cheesy but predictable.

[Vegaman_Dan]

Embarassing

Personally, I would think that her actions are even more embarassing than the incident itself. She's too full of herself and I'll be glad when she realizes that she can't take her million dollars out of the game without first paying Uncle Sam 40%+ in taxes, or if / when SL's servers hiccup and she loses it all.

I lost all my money online and Linden Labs says that since it's virtual money and not real, I have no recourse. Sorry, all your money is gone, you can't do anything about it. I hope our millionaire runs into that situation as well. If she tries to sue for the money, then it will have a real life value and she'll have to report it as taxable income- along with having to have a business license, federal tax ID, etc. Failure to do that will quickly eat up any and all profit she has made.

SL is growing too fast and catering to corporate customers. It will soon suffer collapse from its own weight with no internal support.

[inachu]

She is very pretty

Would love to date her.

[baswwe]

Where is the video or picture of the event?

I wanna see!!