Possible legal issue - not sure what to do

[Xilion Iceberg]

Hello everyone :)

 

I got a notecard today about something and I'm not entirely sure what to do with it. The situation is as follows:

A friend of mine has a DJ poster she used when she worked at club "X". This poster was made by, I believe, one of the people that work at said club. She left there after some time and has now opened her own club. I'm helping her out setting up some things. One of those things is an online-offline board. She wanted to use the poster (well-done quality tbh), but it had the previous club's name at the bottom. She gave the picture (full permissions) to me and I cut off the little part before uploading it and putting it into the board.

Today, I got a really well-copied piece of legal yadda about US law / copyright infringement / 5 days notice / 50$ fine / etcetra. I was a little startled about it, seeing as A) It's not my picture, and B) I got this picture full permissions.

What I happen to know is that this club she left has not-so-warm feelings towards her for setting up a new club. I am presumtious and call it one way to just annoy the hell out of her... however, I am not a US citizen and my legal knowledge isn't exactly perfect, especially on US legislation.

I am wondering: is this legal note valid? She did own the picture full-permission, regardless of who it made. I might be able to understand that cutting the picture is something the original creator wouldn't like, but still one would think that one can use the picture seeing as it is full perm.

In my mind, I now have three options:

- Leave the situation as-is. I'm not sure if this is a good idea if the legal note is actually valid.
- Use the original image instead and stretch it up a little on the prim. One would think this is legal, but still.
- Delete images and give this guy what he wants. If all else fails I have no problem with this, but I just -know- this isn't an issue of copyright for him, but an issue of trying to hit my friend where it hurts with any measure possible.

Could anyone give me advice on the situation? Normally I would just delete the pic, even for the sake of common courtesy, but because of the history between my friend and xlub "X", I'm willing to learn if he is in his right to do this.

Thanks in advance!

[Freya Mokusei]

Talk to the person who made it.

If terms were specified on how the image should be used at the time it was made, your friend should obey them. (Creators terms of use beat Second Life permissions provided they're agreed to). If the image was sold to you on its own then the creator still owns IP rights.

If the creator of the image is unhappy about how you're using the image now, you should stop using it. (Otherwise DMCA for you)

Anything else is reasonably irrelevant. Ignore the five days notice, ignore the fine; you're not a US citizen and the issue is still within SL, you've done nothing illegal until it's proven that you should've known better or are deliberately ignoring the wishes of the person who owns the intellectual property.

[Alicia Sautereau]

She got it full perm because she worked at the club and the image was created for the club

Even if something is full perms, it does not mean you can butcher it up as it is their work, using it as a compatitor is not the best idea
Legal notice, if she is in the same country as the creator, hmm, otherwise wish them good luck with international laws
Easier for them would be to file a DMCA....

You should have seen the drama coming from this

[Xilion Iceberg]

Thanks for the reply.

 

I heard about the club "struggles" just a little while ago, hence I didn't know it would become a big deal.

 

Just making sure: there were no usage terms agreed to when the image was transferred to her. Beside that, I am a third-party. Am I correct to understand that the original image -can- be used then (in original format, to be sure) ?

[Trinity Yazimoto]

i dont think such thing worth a dispute... 

If it was me, id delete the first pic and would do another one and even a better one.

Even if it was given as full perm the poster as been made in the purpose of the first club. So ethically, IMHO, its best to create a new one.

If you cant find sm1 who can make a poster for your friend (or if you cant do it yourself), send me an IM, ill do one for you.

[Xilion Iceberg]

@ Trinity: I agree to the fullest tbh, and as I stated earlier, even out of common courtesy I would... I'm an artist in SL too so I can understand the situation from an artistic point of view. However, as I also stated, this is about more than just (alleged) copyright infringement... I think I'll decide to remove the image but I just want to learn a little about this, too. It's good to have some basic knowledge.

One more question if I may: since I am the uploader, but did this "in assignment for" my friend, are we both target for a possible DMCA, or just me or just her?

[Freya Mokusei]

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Xilion Iceberg wrote:

Just making sure: there were no usage terms agreed to when the image was transferred to her. Beside that, I am a third-party. Am I correct to understand that the original image -can- be used then (in original format, to be sure) ?

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If it was given with no usage terms, you can apply it to any prim in-world and set the texture offsets/repeats as you please. Editing it out-of-world to bring back into SL maybe trickier.

[Xilion Iceberg]

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Freya Mokusei wrote:

If it was given with no usage terms, you can apply it to any prim in-world and set the texture offsets/repeats as you please. Editing it out-of-world to bring back into SL maybe trickier.

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This would be the terms C/M/T on the image, or written / said terms? (neither do apply btw, but just checking)

[Freya Mokusei]

 

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Xilion Iceberg wrote:

This would be the terms C/M/T on the image, or written / said terms? (neither do apply btw, but just checking)

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Written terms, agreed upon when the image was transferred to your friend. Without these, the image can be used reasonably freely within SL (unless its purpose is to defame or undercut economically), as it's assumed the image was created with the intent to be used without reserve.

[Xilion Iceberg]

Alright, thanks everyone. I'll contact LL just to be sure, as well.

 

One more question if I may: since I am the uploader, but did this "in assignment for" my friend, are we both target for a possible DMCA, or just me or just her?

[Freya Mokusei]

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Xilion Iceberg wrote:

One more question if I may: since I am the uploader, but did this "in assignment for" my friend, are we both target for a possible DMCA, or just me or just her?

---

Anyone distributing it would be a target.

I am not a lawyer.

[Qie Niangao]

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Trinity Yazimoto wrote:

i dont think such thing worth a dispute... 

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Exactly. Moreover, if you have any regard whatsoever for this DJ friend, do not put her in a position of wasting time on this. Most clubs fail within six months. If she's starting a new one, she needs to focus all her time and energy on things that actually influence success, and a DJ poster Just Does Not Matter. For that, using a plywood box with hovertext is better than spending more than two minutes of her time thinking about it.

[Amethyst Jetaime]

She has no right to use the picture from the other club.  She was given the texture as an employee to use for that club not her own.  Full perm means nothing.  Someone who owns the IP rights to the image, generally the creator, dictates the terms of use, regardless of the permission system.  The permission system is only there as a tool to help enforce the terms of use.   She does not own the rights to use the  image. The creator of the image retains all rights to it, unless those rights were sold to the old club, then they have the legal rights to it. 

Whoever owns the image can file a DMCA against her and have her signs or anything that uses the image removed from the grid , as well at the texture in her inventory.  They also would have the legal right to sue her for RL money in a RL court if they choose to do so.

I do not understand why she wants to use the image anyway and copy cat her old club.  It doesn't show much creativity or originality.  If she can't do better than that her club is probably doomed to fail.

[Xilion Iceberg]

Thanks for the feedback all.

The image was to be replaced when we would have the time for it.. I do agree with all that's been said regarding this shouldn't be an issue. I really do. As I said, I also just wanted to read up a little on legislation just to be sure for anything in the future. I tend not to unlawfully copy other people's creations, but accidents happen and I was just a little startled at this, especially since I do not know a thing or two about US legislation.

Learned some new things today, thanks for that. I think that, for the sake of not wasting too much time on this, I'll just kick the image off.

Thanks again!

[Aethelwine]

Probably best to just take it down, or take it down and reply... "you could have just asked".

But if you think they are being spiteful then I would be tempted to take the original image and copy the text of their removal notice on to it and reply back to them saying...

"thank you for making me aware of the copyright issues on the image. I have now taken legal advice and amended the image so it will comply with a fair use defence. Please see attached. I hope you are satisfied with the outcome. Ps and thank you for providing us some entertainment."

All the same probably best to just use a better image. :womanlol:

[Christin73]

My best advice is just take another pic. It only costs 10L to upload to inventory. Its not worth fighting for. Although alot of copyriting is broken in SL. If you look at everything people make you will see they make things with name brands like Coke,and I even saw a McDonnalds once in SL. Use your best judgment. But, Its just as easy to change the pic.

[Syo Emerald]

Sad to see that this happened. Even sadder that you can't name the club here...I would definitly like to avoid people with such failure in their social skills. Sounds like a bunch of dramaqueens and attentionw*** to me.

[Amethyst Jetaime]

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Christin73 wrote:

My best advice is just take another pic. It only costs 10L to upload to inventory. Its not worth fighting for. Although alot of copyriting is broken in SL. If you look at everything people make you will see they make things with name brands like Coke,and I even saw a McDonnalds once in SL. Use your best judgment. But, Its just as easy to change the pic.

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This is excellent advice to the OP.  You are also right that there is a lot of violations of IP rights going on in SL.   However, some companies and creators may have given general permission to use their trademarks or copyrighted material. in SL and other's may give a license to a single content creator who in many cases pays for it.  You just don't know. That is why LL only responds to DMCA's from the rights owner, because they don't know either.  Coke actually gave permission to use their logo and intellectual property years ago to SL content creators because they heavily promoted their products in SL.

If you see someone using a trademarked name or selling something that may violate a copyright, then the best thing to do is contact the rights owner and tell them.  They can file a DMCA to have it removed if their rights are being violated. 

[Jennifer Boyle]

Some of the advice you have received here is incorrect.  The relevant facts are:

The creator of an image owns all rights, i.e. copyright, unless she has transferred some or all rights to someone else or to the public domain.  No notice is required to retain rights.

Permissions have nothing to do with rights.  Permissions are technical limitations on what can be done.  They may be one means of enforcing rights, and they may be used to enforce limitations that are not supported by rights.

Providing a copy of an image to an employee to use in the course of employment for the benefit of the employer transfers no rights to the employee.  It could be argued that an employee who retains and uses such an image after termination of employment is guilty of theft.

The copyright holder of an infringing image that is online has two courses of action:

File a DMCA takedown notice, upon receipt of which LL will take down the image in question.  If the recipient of the notice files a counter-notification, it will be put back up, and the complainer will be provided the RL contact information for the subject of the notice and may file suit in court.

Serve LL with a DMCA subpoena for the RL contact information of the alleged infringer, which may be used to file suit in court.

[Dresden Ceriano]

I'm not well versed in all the legal terminalogy, but I can nevertheless try to explain to you the way copyright works.

 

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Xilion Iceberg wrote:

I am wondering: is this legal note valid?

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What you've received is known as a cease and desist letter and as such, should be taken very seriously.  Usually, the person who has taken the photo has exclusive copyright to the image, unless there's an agreement with the subject to share rights... unless this agreement is specifically stated, it does not exist.  This case is probably I bit different, simply because the person who took the image was acting as an agent for the owners of the club, in which case, the club owners would be the holders of the copyright.  This would entitle them to oversee the future usage of said image, regardless of whether it was given out full perm or not.

 

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Xilion Iceberg wrote:

She did own the picture full-permission, regardless of who it made.

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At this point, I must point out that being given a photo, object or anything else in SL, with no permission limitations, does not at all mean that you can do with it whatever you wish.  This is a common misconception... it's not surprizing that it is something of which you were not aware.  Now you know.

 

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Xilion Iceberg wrote:

In my mind, I now have three options:

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No... you only have one option... don't use the image.  The only way that you could use it is under the guise of fair use and fair use does not apply here for multiple reasons, which I don't have the inclination to even try to explain to you at the moment.

I would be more than happy to take a nice photo of your friend and, not only give them full permission to do with it as they please, but agree to never use it for anything myself... free of charge.  That way, neither you nor they need to worry about this issue any longer.

...Dres

 

[Dresden Ceriano]

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Jennifer Boyle wrote:

Some of the advice you have received here is incorrect.  The relevant facts are:

The creator of an image owns all rights, i.e. copyright, unless she has transferred some or all rights to someone else or to the public domain.  No notice is required to retain rights.

Permissions have nothing to do with rights.  Permissions are technical limitations on what can be done.  They may be one means of enforcing rights, and they may be used to enforce limitations that are not supported by rights.

Providing a copy of an image to an employee to use in the course of employment for the benefit of the employer transfers no rights to the employee.  It could be argued that an employee who retains and uses such an image after termination of employment is guilty of theft.

The copyright holder of an infringing image that is online has two courses of action:

File a TDMA takedown notice, upon receipt of which LL will take down the image in question.  If the recipient of the notice files a counter-notification, it will be put back up, and the complainer will be provided the RL contact information for the subject of the notice and may file suit in court.

Serve LL with a DMCA subpoena for the RL contact information of the alleged infringer, which may be used to file suit in court.

---

I started typing my response before you posted yours, but what you've had to say is exactly what I was getting at and most probably better worded than I was able to accomplish.  I will say that the only part of what you've said that you didn't include has to do with the copyright owner's choice of actions... there is a third.  Obviously, the owner of the copyright, in this case, decided on the third option... a cease and desist letter (in the form of a notecard).

...Dres

[ImaTest1488314069]

I'll say what others haven't.

You and your friend are creating more drama around this than needed. A simple "ok, sorry, we won't use this, thank you for letting me know" communication towards the person who sent you a notice will suffice. Assuming you want(ed) to communicate with the person at all. Which of course, you don't have to do. Whether or not the notice you received is legal, also, doesn't really matter.

What struggles or issues the other club had or has is irrelevant to this issue. You added that for the drama effect the same way your friend told you about it. It has nothing at all to do with the issue at hand. I don't care, and neither should you, why they sent the notice at all. I also don't care, and neither should you, how they feel about your friend opening a new club. It's also, not relevant to the actual issue at hand.

I'm pretty sure you already knew before you posted that what you did was wrong, and completely lacks any amount of tact or originality. Or else you wouldn't now be saying you'd intended to recreate it anyway. Why would you, or your friend, want to use things from another club? The thought alone sounds stupid. It sounds even stupider when you say your friend told you that club had issues. Which again, takes us right back to, a need for drama.

Make a new image, and move on.

[ImaTest1488314069]

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Christin73 wrote:

My best advice is just take another pic. It only costs 10L to upload to inventory. Its not worth fighting for. Although alot of copyriting is broken in SL. If you look at everything people make you will see they make things with name brands like Coke,and I even saw a McDonnalds once in SL. Use your best judgment. But, Its just as easy to change the pic.

---

Coke has allowed people to use their images, likeness and such in sl. Some other companies actually have allowed it as well, and find it to be just one more avenue of advertising. Just like some artists allow free use.

That said, just because some do it, doesn't make it right for everyone. I hate when people use the "but you see it everywhere else" crap. I see people not wearing their seatbelts all the time, driving while talking on cell phones, driving like idiots, etc. That doesn't mean I should go out and do it too.

All rules are broken at one time or another, by at least one person. It doesn't mean others should.

[Dresden Ceriano]

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ImaTest wrote:

I'll say what others haven't.

You and your friend are creating more drama around this than needed. A simple "ok, sorry, we won't use this, thank you for letting me know" communication towards the person who sent you a notice will suffice. Assuming you want(ed) to communicate with the person at all. Which of course, you don't have to do. Whether or not the notice you received is legal, also, doesn't really matter.

What struggles or issues the other club had or has is irrelevant to this issue. You added that for the drama effect the same way your friend told you about it. It has nothing at all to do with the issue at hand. I don't care, and neither should you, why they sent the notice at all. I also don't care, and neither should you, how they feel about your friend opening a new club. It's also, not relevant to the actual issue at hand.

I'm pretty sure you already knew before you posted that what you did was wrong, and completely lacks any amount of tact or originality. Or else you wouldn't now be saying you'd intended to recreate it anyway. Why would you, or your friend, want to use things from another club? The thought alone sounds stupid. It sounds even stupider when you say your friend told you that club had issues. Which again, takes us right back to, a need for drama.

Make a new image, and move on.

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I completely understand what you're saying, but it's not too far off to imagine a scenario where the person in the original photo thought that the photo was so good that they wanted to use it again, not knowing the ramifications of doing so.  I honestly see more ignorance here, than ill intent.  Hopefully. they now know the ramifications of their actions and will correct them accordingly.

...Dres

[ImaTest1488314069]

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Dresden Ceriano wrote:

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I completely understand what you're saying, but it's not too far off to imagine a scenario where the person in the original photo thought that the photo was so good that they wanted to use it again, not knowing the ramifications of doing so.  I honestly see more ignorance here, than ill intent.  Hopefully. they now know the ramifications of their actions and will correct them accordingly.

...Dres

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The added dramatic effect of extra details about the prior club, and it's employees, adds the ill-intent. There's certainly a fair amount of both ignorance and ill-intent here, imo. At least, that's how it reads to me. Wouldn't be the first time I was wrong, for sure.

Then again I'm of the camp that believe ignorance of the rules and/or laws doesn't ever excuse breaking them. I'm a bit odd in that right, and it tends to annoy others. I have a bit of a soft heart when it comes to copyright, trademark, etc. issues, and their owners. I stand quite firmly with content creators and tend to have little to no patience with people who ignore when the information is readily available. So I tend to come across as a cynical **bleep** when people discuss using others' work when they shouldn't