Intellectual Property VS Public Domain

[KiraJoleen]

Hopefully this is in the correct area of the forums, I don't use the forums too often. But I'd like to get some opinions on my shop situation.

I run a Toddleedoo avatar clothing store, my primary theme is "Alice In Wonderland" and all of my wonderland themed items we're taken off the MP for "Intellectual Property Policy" 

I've included a couple images of items that we're removed. The first one being the blue sweater with the classic John Tenniel illustration on it. The second one being literally a heart symbol.

Both of these were taken down, I'm assuming the tag/tags "Alice" "in" "Wonderland" were caught.

What frustrates me though, is that Alice In Wonderland is public domain, and so is the John Tenniel illustration used. So no, there is no mis-used IPP being used here, it's public domain. And Even if it wasn't, the heart one is 100% custom fabricated so shouldn't of been taken down at all.

 

So why I'm posting here, should I message LL about this? Should I relist? I've ran this store for a few years now and I don't want this to happen again, but I don't want to drop my theme, I adore Alice In Wonderland and with it being public domain, I'm within my rights to use and reference it.

 

[Pixieplumb Flanagan]

Submit a ticket with links to the relevant sources http://lewiscarrollsociety.org.uk/pages/eventspeopleplaces/LewisCarrollAndUKCopyright.pdf  might be useful.

Whilst obviously the Disney version of Alice is NOT public domain, the much more charming original ones are, and the name Alice in Wonderland can certainly be used.

Good luck xxxxx

Edited December 21, 2017 by Pixieplumb Flanagan

[Keira Lewellen]

Does Disney have the trademark on certain wordings still, I'm wondering if it isn't the "Jabberwocky" that is causing the issue?

[ChinRey]

1 hour ago, Keira Lewellen said:

Does Disney have the trademark on certain wordings still, I'm wondering if it isn't the "Jabberwocky" that is causing the issue?

No. "Jabberwocky" is the name of a Lewis Carroll poem and the word is most definitely in the public domain. It wasn't Disney who made a film by that name btw, it was Python films.

 

7 hours ago, KiraJoleen said:

So why I'm posting here, should I message LL about this? Should I relist?

You certainly shouldn't simply ignore the takedown and relist - that will almost certainly cause you big trouble.

What you should do, is file a DMCA Counter-Notification - you can find all the details here:

https://www.lindenlab.com/legal/intellectual-property-infringement-notification-policy#

 

[Chic Aeon]

1 hour ago, ChinRey said:

No. "Jabberwocky" is the name of a Lewis Carroll poem and the word is most definitely in the public domain. It wasn't Disney who made a film by that name btw, it was Python films.

 

You certainly shouldn't simply ignore the takedown and relist - that will almost certainly cause you big trouble.

What you should do, is file a DMCA Counter-Notification - you can find all the details here:

https://www.lindenlab.com/legal/intellectual-property-infringement-notification-policy#

 

Is a counter notification going to work?  From the original info given it doesn't seem like there was a DMCA filed, just someone on the Marketplace took the items off because of Marketplace "policy". 

Presumably there would be a way to contact the person sending the email about the "Intellectual Property Policy".

Agree that relisting would be a very bad plan and could end up with a deletion of account

[mikka Luik]

Unless something else triggered the takedown, I really can't see any problem with those two images. And agree with @Chic Aeon on the counter file point.

But to be honest I wanted to post this..

’Twas brillig, and the slithy toves
      Did gyre and gimble in the wabe:
All mimsy were the borogoves,
      And the mome raths outgrabe.

As we can do with a lot more mimsy  and gimbling (never had the nerve to gyre) =^_^=

[ChinRey]

22 minutes ago, Chic Aeon said:

Is a counter notification going to work?  From the original info given it doesn't seem like there was a DMCA filed, just someone on the Marketplace took the items off because of Marketplace "policy".

As far as I know, Linden Lab will not react to copyright violations - reall or alleged - unless there is an DMCA notification filed so I assumed that's what happened here.

 

1 minute ago, mikka Luik said:

And agree with @Chic Aeon on the counter file point.

Keep in mind that you then tacitly accuses somebody at Linden Lab to be not only terminally ignorant enough to believe Disney owns the copyrights to Alice in Wonderland, but also stupid enough to blow LL's "can't react without a formal DMCA notification" excuse to pieces.

I can't believe that is possible but if it is, it'll be very interesting indeed. For a start that person would have qualified themselves to a lifetime of shrek ears.

 

Edited December 21, 2017 by ChinRey

[Qa Boa]

The issue is that LL doesn't take down anything unless someone requests it/reports it. The issue is that someone browsing MP and seeing your stuff, not being very educated on what copyright is and how it works (as this is not an I.P. issue, it's a copyright issue) - had reported your listing as violating copyright. LL comes in, takes it down - they don't check whether it is or not.

I had a Life 2/XeoLife six-pack of beer on MP and someone reported that it was an ADULT ITEM (!) - and guess what: it was unlisted fro being improperly rated. :\

Put them up again. At the top of your description include that fact that these are the PUBLIC DOMAIN versions from the original AIW book and illustrations. Then, hopefully, some dullard will not come along a report it thinking it's a Disney creation. Hell, Disney is evil: 95% of all their "intellectual property" is based on Public Domain stuff.

[Callum Meriman]

8 hours ago, Qa Boa said:

The issue is that someone browsing MP and seeing your stuff, not being very educated on what copyright is and how it works (as this is not an I.P. issue, it's a copyright issue) - had reported your listing as violating copyright. LL comes in, takes it down - they don't check whether it is or not.

What the Lab need to do, is allow a counter-claim to be made for these false reports, that would reinstate the listing and add a strike to the reporter. Too many strikes and the false-reporter should be disciplined.

Those drawings from the middle of the 1800's are clearly public domain.

[Charlotte Bartlett]

If you got a DMCA takdown notification - you can't file a ticket for general support,  you have to counterfile and the notice should have given you information on how to do that exactly.  

Full information is here - https://www.lindenlab.com/legal/intellectual-property-infringement-notification-policy  plus your notice should have given you this information if your works were subject to a takedown.

If not, can you paste what it said (taking any personal information out)?

 

[Charlotte Bartlett]

On 12/21/2017 at 5:07 PM, Qa Boa said:

The issue is that LL doesn't take down anything unless someone requests it/reports it. The issue is that someone browsing MP and seeing your stuff, not being very educated on what copyright is and how it works (as this is not an I.P. issue, it's a copyright issue) - had reported your listing as violating copyright. LL comes in, takes it down - they don't check whether it is or not.

I had a Life 2/XeoLife six-pack of beer on MP and someone reported that it was an ADULT ITEM (!) - and guess what: it was unlisted fro being improperly rated. :\

Put them up again. At the top of your description include that fact that these are the PUBLIC DOMAIN versions from the original AIW book and illustrations. Then, hopefully, some dullard will not come along a report it thinking it's a Disney creation. Hell, Disney is evil: 95% of all their "intellectual property" is based on Public Domain stuff.

Only the authorised copyright holder can initiate a takedown so doubt it was somebody being uneducated - if they filed a takedown it was very specific and requried them to use the correct format/file and fax it or post it and declare they were authorised to act as the copyright holder / perjury statement etc.

From memory as non copyright related, I think LL do sometimes I think sweep listings e.g. vast abuses of Trademarked names (again the OP hasn't done this) so wonder if some other reason caused the issue that isn't evident yet.

 

Edited December 23, 2017 by Charlotte Bartlett

[Arduenn Schwartzman]

Open a support ticket and ask for the specifics as to why the item was taken down, explaining you only used pubdomain source material. It happened to me once, and I could not figure why. Support clarified the reason for me. (In my case, I'm selling a torch, which used to be listed as PG. However, the model holding it in the product picture had a cigar in his mouth. Someone with a keen concern for all the minors shopping on MP noticed that and reported it.) Maybe LL support will realize your Alice in Wonderland item had been wrongfully unlisted and reinstate it. In the worst case, they will present some legit reason for the take-down.

My two cents: the public domain Alice looks somewhat like the Disney Alice, maybe causing confusion.

Edited December 27, 2017 by Arduenn Schwartzman

[KiraJoleen]

First- Thank you everyone who's replied so far. I'm going to file a ticket, because it wasn't a DMCA, it was "Intellectual Property Policy" and I was never emailed about it, so it wasn't until i noticed I hadn't gotten a sale in awhile that i noticed it was even down. Sorry for the low quality, but here's a cropped screenshot of all I have to work on here. and It's only on my items that were tagged "alice,in,wonderland" or simply "wonderland"

[SL79]

Hi, I'm not sure if you'll see this in time, but I am doing a project for university and I am just wondering if/how your issue was resolved? Were you ever told why your content was taken down, and were you able to put back up? 

[Ethan Paslong]

9 hours ago, SL79 said:

 I am doing a project for university

where can we verify?

[Alyona Su]

18 hours ago, SL79 said:

Hi, I'm not sure if you'll see this in time, but I am doing a project for university and I am just wondering if/how your issue was resolved? Were you ever told why your content was taken down, and were you able to put back up? 

 

9 hours ago, Ethan Paslong said:

where can we verify?

Apparently, she never put it back up, which is a shame because she is 100% in the public domain *as long as* she does not use any Disney-created imagery. Her marketplace is here: https://marketplace.secondlife.com/stores/106826 - I don;t know if she has an in-world shop or not.

[Drake1 Nightfire]

"Alice in Wonderland" is owned by Disney. Carrol wrote Alice's Adventures in Wonderland. That subtle difference makes all the difference in the world. Disney has put the kibosh on everything they own the rights to, that will now include Star Wars. I know that is a tad off topic. 

Removing those tags should fix it. I would remove them and put ONE back up, wait a month then put back the rest. Mind you, we are not LL and opening a support ticket asking what to do would be a good idea. 

On 12/27/2017 at 9:25 AM, KiraJoleen said:

First- Thank you everyone who's replied so far. I'm going to file a ticket, because it wasn't a DMCA, it was "Intellectual Property Policy" and I was never emailed about it, so it wasn't until i noticed I hadn't gotten a sale in awhile that i noticed it was even down. Sorry for the low quality, but here's a cropped screenshot of all I have to work on here. and It's only on my items that were tagged "alice,in,wonderland" or simply "wonderland"

 

If it was and it looks like it was  removed for "Intellectual Property Policy" then there was indeed a DMCA filed or at least they filed against the name. 

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

[Fionalein]

On 12/21/2017 at 5:32 PM, Keira Lewellen said:

Does Disney have the trademark on certain wordings still, I'm wondering if it isn't the "Jabberwocky" that is causing the issue?

Being in the US they might have tried to register it as a trademark, yes. Happens all the time... As far as I understand they will continue to own the falsly claimed trademark until someone challenges it in court - not an advisable route to go for a small scale designer though.

Edited September 27, 2018 by Fionalein

[Ethan Paslong]

1 hour ago, Alyona Su said:

 

Apparently, she never put it back up, which is a shame because she is 100% in the public domain *as long as* she does not use any Disney-created imagery. Her marketplace is here: https://marketplace.secondlife.com/stores/106826 - I don;t know if she has an in-world shop or not.

.. the verify is aimed on the claim it's a university student project

[Fionalein]

... wait we all give advice to a long lost store owner because some student necroed a thread for their homework? 

[Drake1 Nightfire]

6 hours ago, Fionalein said:

... wait we all give advice to a long lost store owner because some student necroed a thread for their homework? 

Less than a year, not really a necro.. 

cookie?

[Alyona Su]

20 hours ago, Drake1 Nightfire said:

"Alice in Wonderland" is owned by Disney. Carrol wrote Alice's Adventures in Wonderland. That subtle difference makes all the difference in the world. Disney has put the kibosh on everything they own the rights to, that will now include Star Wars. I know that is a tad off topic. 

Removing those tags should fix it. I would remove them and put ONE back up, wait a month then put back the rest. Mind you, we are not LL and opening a support ticket asking what to do would be a good idea. 

If it was and it looks like it was  removed for "Intellectual Property Policy" then there was indeed a DMCA filed or at least they filed against the name. 

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

I'm not sure it was a DMCA takedown... LL has been known to delist items from Market Place is *anyone* flag a listing as representing a real-world trademark and let's face it: most people do not understand the difference between trademark, copyright, and patents. Furthermore, relating to "Alice in Wonderland" - most people know it by the Disney version rather than by the (very-public domain) original version. 

19 hours ago, Fionalein said:

Being in the US they might have tried to register it as a trademark, yes. Happens all the time... As far as I understand they will continue to own the falsly claimed trademark until someone challenges it in court - not an advisable route to go for a small scale designer though.

I'm not sure the movie title is registered as a trademark (Though many trademarks have been registered that shouldn't be - that's government red-tape and bloat for you). It's like the Happy Birthday song and Warner Brothers twisting arms to pay-up royalties for years until it was taken to court a few years ago and deemed to be public domain.

As for a "necro-revival" - I see it as worthy as it reignites the discussion about trademarks, copyrights, and patents as they relate to user-created stuff in virtual worlds, etc..

A trademark is to protect consumers so they do not mistake the *source* of material or products. It would be pretty difficult to think anything on Market Place comes directly from Disney. The case described in the OP that Disney has a trademark on is the characters *as drawn* - the visual representation. Though she had used a public domain image from the original book.

Copyright protects a specific *work* giving the original author control over how it is presented and monetized (or not). If you make a carving of a thing and I also make a carving of the exact same thing and they appear identical: I have not violated your copyright because I carved it myself.

Patents are a copyright on an idea, though the Supreme Court of the U.S. has ruled that a patent must describe the idea in such a way that anyone can read it and create it from that reading, which makes a large chunk of patents invalid if ever challenged in court (most being technology-based).

Edited September 28, 2018 by Alyona Su

[Love Zhaoying]

On 12/21/2017 at 11:32 AM, Keira Lewellen said:

Does Disney have the trademark on certain wordings still, I'm wondering if it isn't the "Jabberwocky" that is causing the issue?

Monty Python made a great movie by that name, “Jabberwocky”.

[Drake1 Nightfire]

3 hours ago, Alyona Su said:

I'm not sure it was a DMCA takedown... LL has been known to delist items from Market Place is *anyone* flag a listing as representing a real-world trademark and let's face it: most people do not understand the difference between trademark, copyright, and patents. Furthermore, relating to "Alice in Wonderland" - most people know it by the Disney version rather than by the (very-public domain) original version. 

You can not flag something for violating trademarks. Only the trademark holder can file that. 

[Alyona Su]

7 hours ago, Drake1 Nightfire said:

You can not flag something for violating trademarks. Only the trademark holder can file that. 

That is how it is *supposed* to work.

However, you (as in anyone) can flag an item as "Infringes on My Intellectual Property Rights" (truthfully or not) and though a DMCA filing is required for a full "take down"(removed from SL proper) - delisting may or may not be considered a "take down" (it's only a single listing) - Now with real-life commercial entities set aside, this is also so that one SL creator can flag something that someone else has listed if they believe this is true. I've never had anything flagged and I've never flagged anything as such, so the real question is how LL employees would respond (if there is any actual investigation and by how much, etc.) beyond anything basic. Certainly (I suspect) it doesn't require a full DMCA filing for just a marketplace I.P. flagging and delisting. Even if it were required, they'd surely delist it first and wait for paperwork later to be on the safe side, I presume.