Mesh and IP Rights Question

[Twiddle]

Okay since LL is obviously making it a point with that silly little IP tutorial to make people worry about copyright and DMCA with mesh (and at least for me, confuse me more) I suppose I should ask a few questions and hope that I don't make any mistakes that get me into trouble.

Obviously there are a ton of things in SL that probably do violiate copyright that LL isn't really concerned with enforcing.  Just search nearly any popular video game and you'll find avis for the characters and more (and lets not get started with things like star wars, I mean the droid phones had to pay Lucas Arts just to use the word "Droid" on their products).

Now personally I don't want to rely on LLs lazyness, especially since eventually they might get their act together (not likely but yea).  So what exactly is the best way to walk around this line, is there a legal way to do something that is "inspired by" something but not actually infringing on copyright?  Can you legally say it's insipired by x? or do you just have to leave people to figure that out?  Where exactly are the lines drawn on this?

For example say I wanted to make a mesh version of the master's sword from Legend of Zelda, obviously if I make something that looks exactly like it I'm infringing upon copyright, but if I make some changes to say the shape of the quillons and the pommel and alter the tri-force emblem on the blade then is that okay?  and if it is can I still sell it as "inspired by the master sword from legend of zelda"? or is just mentioning it's based on copyrighted material something that could warrant action from LL?

As I said earlier really the IP quiz thing only caused more confusion on this issue for me so I'd really appreciate someone making it clear. 

[Freecilla Kuhn]

If it is a copy it is a violation.

If it is similar but altered it is original since all things created by anyone are similar to something else but altered. No one actually has an original idea, their ideas are always based on something else or various things combined. There is no exact right or wrong but saying it is inspired by this or that does not violate anything... copying does.

There are various comic book companies that make super heroes and they are all based on the exact same idea but they are all still original. They all have powers, a flashy suit, super villains, the same story lines but they never say this hero is based on that hero. So if you want to make a sword, make a sword and don't bother saying it is based on any other sword, after all the zelda sword doesn't state what they based their sword on so you don't have to either. Zelda did not create the idea of a sword nor do they have ownership on the idea of a sword, no one does.

As for LL they don't have to enforce anything, they are not the police, they are just being responsible so they can say they warned us and they did and that's fair. They will pull copyright materials if it is copied from one of their users which again they do not have to but it is very wise and very appreciated by all of it's users.

It's about as black and white as right and wrong are. There is no need to see what you can get away with when you can see what YOU can make. All things old in life and secondlife will be new again through inspiration*, imagination, innovation, procreation and cookies.

* inspiration from others or their creations or nature.

[Amethyst Jetaime]

FIrst there are both trademark and copyright issues here, all covered by the Digital Millennium Copyright Act, which you agreed to as part of the TOS.  This applies to all content creation, not just mesh.

You can't market things as 'inspired by <specific game, movie etc.>' without violating trademark and/or copyright laws unless you obtain permission from the owner of the IP rights.  You may use a trademarked name or title in discussing the work or item factually, for comparisons of the characteristics of one product vs.. another, or giving an opinion- such for a review - but anytime you use the name of a trademarked or copyrighted work for financial gain in the way you describe then you are in violation. You can say "inspired by a popular fantasy game" or other general description.

You can't copyright ideas.  Therefore you  can make a jeweled sword that is medieval or alien in design,  However, you cannot make them "substantially" similar to a trademarked or copyrighted item.    I.E.: You can't make a sword just like one in  a movie and only make a few minor changes to it.  Basically, if someone sees the sword and they think of the original, you are probably in violation.  Of course that word "substantially" is open for interpretation by a court of law if there is court case to determine if a violation took place.

You are right to be cautious about complying with copyright laws.  Its not just Linden Lab's enforcement or lack of enforcement you need to be concerned about.  Anyone could see it and report it to the IP owner and you could find yourself in legal hot water as a result. Even if your cleared you will have to spend a lot of money for lawyers etc.  Why take this risk for a few linden?

I'm not a lawyer.  The above is information that I believe to be fairly accurate based on my experience dealing with these issues in RL and SL. You should consult a lawyer if you have any doubts or research it yourself.

Here are a few links you may want to take a look at:

The Official policy of Linden Lab

http://wiki.secondlife.com/wiki/Linden_Lab_Official:Intellectual_Property

About DMCA Violation Notices

http://secondlife.com/corporate/dmca.php

The official summary of the US Gov't of the DMCA

http://www.copyright.gov/legislation/dmca.pdf

[Kwakkelde Kwak]

This is not black and white at all, the copyright that is. You mentioned logo's and names, those aren't copyrighted, but are trademarks and those are well protected. This means you cannot use them at all. You can't use them in your objects, you can't use them in your advertisement in a "inspired by...." kind of way.

For shapes however it's another matter. I'm not very sure myself on this, since some "shapes" like artwork do have copyright. Other objects like furniture or shoes or cars do not... Unless the creator can claim it's art. Then there's something else. Recently there was a Louis Vuitton lawsuit against an artist who used one of their bags in a painting. The judge ruled in favour of the artist in the end because of her freedom of expression and her interest should count higher than the IP infringement counts for LV...in this particular case. As I said, not black and white at all, just make sure you don't mention the original name at all and you should be fine. If you want to be 100% sure you can use something, there's only one thing you can do and that is getting permission from the original creator (who probably isn't all that original).

Chosen Few reacted on a similair question in another thread...

[Tara Chester]

Instead of worrying about all this upfront, it's much better to try to be creative and make your original stuff, and worry about it being similar, a copy, or inspired by somebody else's work later.

[Kwakkelde Kwak]

I'm sorry Tara, but that sounds like "Let's close our eyes, floor the accellerator and worry about hitting someone or driving off a cliff later". I like my designs to be original, my own, most are, some aren't. If I am building an industrial site and it needs cars, I am not going to design my own truck. That's just not going to cut it. In such a case I rather use an existing one (without using any trademarks).

[Innula Zenovka]

The problem is that you're asking, in effect, for legal advice -- which I don't think anyone here is qualified to give -- about whether an item that's not yet been made might infringe Nintendo's IP rights if you go ahead an make it.    And you're asking for advice about two separate things -- one, "is the design of my sword so similar to that the original that it infringes Nintendo's copyright?"  and, two, "can I use the phrase 'Legend of Zelda' in my marketing without infringing Nintendo's trademarks?".

To my mind, though, those aren't the questions you should be asking at this stage.   Since, if you go ahead and make this item, it'll be Nintendo who file the DMCA takedown request with LL, if one is filed, and since it'll be Nintendo with whom you'll have to fight it out in the courts if you resist their takedown application (and if they go after you for damages, of course), the question I'd be asking is "What's Nintendo's attitude to my doing this?"   And I'd be asking it of Nintendo themselves.

Having just read the Wikipedia article about Nintendo's attitude to protecting their IP rights,  I have to say that I doubt your proposal will meet with their approval, but better to ask now, and be told, "forget about it" than not to ask and find Nintendo's legal team on your case some way down the line.

[Kwakkelde Kwak]

I'm not a lawyer or legal expert by any means, but I think you have covered most of the matter. You are forgetting one aspect though: CAN Nintendo claim copyright on the sword? With a lot of items this doesn't seem to be the case. Asking Nintendo will not provide you with a very satisfying answer I think. But keeping your fingers crossed and hoping Nintendo isn't going to sew is also not a very nice thing to look forward to....difficult..difficult. This is why I asked in another thread if there are some gamedesigners around who know these things and have dealt with them already.

[Innula Zenovka]

I guess the pragmatic answer to "can Nintendo claim copyright of the sword?" is that they can certainly claim it, and it's up to a court if they uphold the claim, should the maker decide to dispute it, that is.   And Nintendo are certainly in a better financial position to make such claims in court than is any private individual.

On the other hand, there's a limited number of ways to make a broadsword, I guess, and any broadsword is going to look not unlike any other one,  so the important question is "is this a broadsword that looks pretty similar to the Nintendo one but not suspicously so, or is it a copy of the Nintendo one with a couple of minor bits changed?"

To my mind, actually saying "this is inspired by the master's sword in Legend of Zelda" is asking for trouble, and best avoided unless it's absolutely necessary to draw attention to the fact.   

[Kwakkelde Kwak]

Okok, that's my lack of knowledge of the English language...but there have to be precedents no doubt. Ofcourse they can claim it, they can claim Canada if they want to...

The difference between furniture and other RL items and a sword which isn't a sword, but a bunch of bits and bytes is obvious, making the situation even harder to judge upon. I don't thin I'd ever try to rebuild a digital item, but I would rebuild RL items....

From http://www.bitlaw.com/copyright/unprotected.html 

Copyright protection is generally not available to articles which have a utilitarian function. Examples of these types of "useful articles" would include lamps, bathroom sinks, clothing, and computer monitors. Under the Copyright Act, the only copyright protection available to these items is for "features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article."

 

Generally....sigh:)

[Innula Zenovka]

As I understand it, whether an item infringes on someone's copyright is a factual question, not a legal one.

That is, the court is being shown two items and being asked to decide  whether one is to all intents and purposes an unauthorised copy of something someone else has made, with a couple of minor details changed -- or an original work that happens to look not unlike someone else's original work, because, after all, any one broadsword is going to look similar to any other broadsword anyway.    The court might use precedents in assisting them to how to interpret the law relating to this, but ultimately the court's looking at two items and trying to decide whether one's a rip-off of the other or not.

And since one of the items hasn't yet been made, it all seems a bit hypothetical.    

But I still think it's ultimately a pragmatic question.   Nintendo has pots of money and a legal department that is, it would seem, very vigorous in protecting Nintendo's IP rights.    And, for what it's worth, I would think that, whatever the rights and wrongs of it, if someone at Nintendo were to see an item and think "he's ripped off our sword" rather than "hmm.. that looks rather like our sword, but I can see it's not", then there's only going to be one practial outcome.

[Kwakkelde Kwak]

---

Innula Zenovka wrote:

As I understand it, whether an item infringes on someone's copyright is a factual question, not a legal one.

---

Now that's my whole point. Since this is clearly not the case. If you make something, you can copyright it, you can copyright anything. All this means is you have said you have made it and you own the rights and it is recorded. Nothing more than this. Now you can have recorded it, but that doesn't mean that according to law, you actually HAVE those rights.

Utilitarian objects may be copied, no changes, no nothing. The original creator may have a piece of paper that says he has the rights exclusively, but any court of law will tell him "too bad".

The creator may have a case if the "utilitarian" object is also a piece of art, or something similair. That can't be copied without permission.

A virtual sword cannot be described as utilitarian in any way, so my best guess is Nintendo can copyright it, they probably have those rights even. Anyway, I wouldn't build that sword if you are planning on selling it or showing it on a public sim...

You are allowed to build it and look at it yourself:)

All this is my interpretation ofcourse, but it makes a lot of sense to me...

 

[Twiddle]

Okay, first, thank you to everyone who responded.  As conflicting as some of the answers have been there is some useful information.

For the record I was just using the sword as an example, one I figured at least some of the community would be familiar with, not something I intend to make.

I do realize technically this is a question of legality and really only someone versed in DMCA law could answer definitevly but still thanks for the answers everyone. 

[Rage Riptide]

(and lets not get started with things like star wars, I mean the droid phones had to pay Lucas Arts just to use the word "Droid" on their products).

This is the problem. One is a robot fantasy, the other is a product.

[Vegro Solari]

Remember, "Copyright" from a sensible person's point of view is of course less of a right and more a wrong, as it stifles free human expression with exactly this kind of worthless lawyer-infested draconian order. It is the post-industrial attempt to commodify and capitalize the inner human world of ideas, shapes,sounds and so on that is at fault, and if you disagree with it on religious or moral grounds, you should stand up for what you believe and make the Zelda-inspired sword anyway.

If lawyers from Nintendo then claim you have infringed (and you know you did), you'll always be able to just take it off the SL market. The thing with lawyers is that they need a very large amount of money to go on in their nefarious activities of enforcing things on you via courts, and if you don't seem to be making the money they could forcibly grab from you, then they just take a skip with your sword and attack somebody fatter.

Also, something else to keep in mind,  is that even doing absolutely nothing wrong does not make any person immune to ridiculous attacks from lawyers, or the violence of the legal system in general which can and does destroy innumerable innocent lives as it grinds its cogs as best it can.

[Freecilla Kuhn]

This is the best place to ask since Twiddle wanted to have a clear lay person's explanation that documents and lawyers can not offer without adding confusion.

The best advice, (as myself and another person here expressed) is to not bother copying old things when you have the option and tools to make new anything(s). There is nothing wrong with being original, it's more rewarding, fun, challenging and interesting for everyone.

[NaiadNightfire]

lmao, you could say your sword is a useful/utilitarian object also. You are gonna need it to cut through all the legal red tap, so it's a damn knife I say.

The short answer is, don't do it. As someone pointed out, Nintendo is in a far better position to fight an individual in court, so for a few $L I don't think it's worth the potential trouble.

I am inclined to think that provided your sword is noticibly different from the Zelda sword (and you make no reference to Zelda in your marketing) then you should be fine. Put simply you are selling a style of sword, not the Sword from the game.

As someone else pointed out there can only be a limited number of broadsword designs and if Nintendo has a right to DMCA your ass, then someone else has a right to DMCA Nintendo's ass, as they no doubt are using a sword that must look remarkably similar to another sword......

[Kwakkelde Kwak]

Um, I'm not the OP:)

A utilitarian virtual item?  I don't think so...

Only a limited designs of broadsword possible?....then the number of possible designs for shoes or chairs or games or buildings or vehicles or everything else  is limited aswell? nah.

I do agree the OP shouldn't make the sword if he/she's afraid for getting the Nintendo legal department after him/her...

 

[Kwakkelde Kwak]

Um, I'm not the OP:)

A utilitarian virtual item?  I don't think so...

Only a limited designs of broadsword possible?....then the number of possible designs for shoes or chairs or games or buildings or vehicles or everything else  is limited aswell? nah.

I do agree the OP shouldn't make the sword if he/she's afraid for getting the Nintendo legal department after him/her...