Selling Second Life photos in Real Life as NFTs for profit - is it allowed?

[angelaThespian]

Hi Everyone, 

I would guess I'm not the first person to ask this question, but I can't find any threads or other info about this: Is it possible for an SL photographer to sell their digital photos as NFTs? Lately, selling NFTs is a hot topic. We see digital art selling at marketplaces like Nifty Gateway for obscene amounts. Obviously, that's rare. Still a number of photographers have come to me lately asking if photos taken in Second Life are saleable as an NFT for a profit -- even a small profit -- on marketplaces like Nifty Gateway or Rarible. The TOS is so confusing. 

I've read bunches of opinions on the TOS and ethics etc., but does anyone have a concrete verifiable answer? Thanks!

[Rowan Amore]

Linden Lab provides access to Linden Content and hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited, personal, revocable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Linden Content solely as permitted through the normal functionality of the Service and under these Terms, except that photographs, images, films, and videos of Linden Content may be used in other areas of and outside the Service only as may be set forth in an applicable Product Policy. To be clear, and without limiting the foregoing, you may not use, reproduce, distribute, prepare derivative works of, display or perform any Linden Content, whether modified by you or not, outside the virtual environment of the Service except as provided in an applicable Product Policy or as expressly agreed upon in a written agreement with Linden Lab. The foregoing license is referred to as a "Linden Content License." You acknowledge that when you receive a Linden Content License you do not acquire ownership of any copies of the Content, or transfer of any copyright or other intellectual property rights in the Content.

Sounds like a no to me but someone might have a different interpretation.

[BiliEyelash]

40 minutes ago, Rowan Amore said:

Linden Content

How is this defined? is it any content in SL, or only content created specifically by Linden Labs. Of course if it is limited to only content created by the lab, I would presume that content created bu others is subject to whatever rules the content creator wishes to impose.

[Rowan Amore]

Actually, in this official policy, it seems pictures would be ok.as long as the terms are met.  Personally, I'd discuss it with someone at LL just to clarify what can and cannot be sold outside SL.  

We can interpret it one way while the Lab sees it another way.

http://wiki.secondlife.com/wiki/Linden_Lab_Official:Snapshot_and_machinima_policy#Definitions

Edited April 28, 2021 by Rowan Amore

[Hamlet Au]

Technically yes, but you need to get permission from every single creator who made content depicted in the screenshot. Read this: https://nwn.blogs.com/nwn/2021/04/nft-second-life-screenshots-nettrice-gaskins.html

[Maitimo]

The very first line of the TOS that Rowan quoted specifically says no, even though NFTs were not heard of when the TOS was written.

Linden Lab provides access to Linden Content and hereby grants you a non-exclusive, non-transferable...

An NFT is by its definition, both exclusive and transferable, therefore the license granted by Linden Lab for use of your pictures can't be used as an NFT.

You can sell copies if you want, both inworld and (as prints) in the real world. Lots of people already do that. But you cannot transfer your license of a picture you've taken to another person, which makes an NFT impossible.

[Drake1 Nightfire]

Old person question here.. What the heck is an NFT?

[Schatzi Timmerman]

27 minutes ago, Drake1 Nightfire said:

Old person question here.. What the heck is an NFT?

Non-fungible token.

https://en.wikipedia.org/wiki/Non-fungible_token

"While copies of these digital items are available for anyone to obtain, NFTs are tracked on blockchains to provide the owner with a proof of ownership that is separate from copyright."

Emphasis is mine. There is a big difference between ownership and copyright.  I view it as buying a spectacular sunset pic taken at Monument Valley. I may own the picture, I don't have copyright. The original owner retains copyright protection. Correct me if I am mistaken.

Edited April 30, 2021 by Schatzi Timmerman

[Lucia Nightfire]

15 hours ago, Drake1 Nightfire said:

Old person question here.. What the heck is an NFT?

Old person answer..."Google it!" 😉

[Bree Giffen]

I really wouldn't any of my tokens to have fungi. That's disgusting. No wonder why people pay so much for them. I don't understand what copyright has to do with it. How do you copyright mushrooms? They might be poisonous. 

[Drake1 Nightfire]

59 minutes ago, Lucia Nightfire said:

Old person answer..."Google it!" 😉

Listen you.. I did Google it.. i got a bunch of answers about bitcoin.. I dont do any of that stuff.. Kids these days.. No respect i tell ya. And for a family member even!

[FairreLilette]

On 4/29/2021 at 1:35 PM, Hamlet Au said:

https://nwn.blogs.com/nwn/2021/04/nft-second-life-screenshots-nettrice-gaskins.html

I think the OP could as long as she used full perm stuff and made it into something else and used it as fair-use or made her own, and made her own poses or animations.  Also, don't include other avatars without their permission.  But, I'd still ask LL if it were me thinking about doing this as I'm just learning about this right now.  I had never heard of it before this thread.  And, as far as your avatar, you will have to get the same permissions, I'd assume.

From the blog above:

Fred was talking about legal concerns around making professional machinima in Second Life and not NFTs (this was back in 2009), but the underlying principle applies: If you create a Second Life screenshot, Linden Lab's gives you the right to sell it, including as an NFT.

However, if the screenshot depicts any SL content created by other users, you must technically get their permission to depict it. 

So consider an SL screenshot of a fashion model on a virtual street. Before selling it as an NFT, you must technically get permission from the user who owns the avatar -- and all the content creators who made fashion accessories, avatar textures, even poses depicted on that avatar model.... and all the creators of all the content depicted in the background. (Street signs, buildings, the street itself, etc. etc.)

Edited May 1, 2021 by FairreLilette

[Rat Luv]

.

 

Edited May 1, 2021 by Rat Luv

[Mollymews]

16 hours ago, Schatzi Timmerman said:

"While copies of these digital items are available for anyone to obtain, NFTs are tracked on blockchains to provide the owner with a proof of ownership that is separate from copyright."

Emphasis is mine. There is a big difference between ownership and copyright

this is my general understanding of it as well

i buy a book. I own the book. I don't own the copyright of the text (and/or images) contained

the blockchain listing is like a receipt. It tells that I purchased the book. The blockchain listing/receipt says that I own the book

is up to the seller to proof that they have a license to distribute other people's copyrighted text/images contained in the book

here we get into Second Life Terms & Conditions

section 2.5:

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. The foregoing license is referred to as the "Snapshot and Machinima Content License."

 

 

if we do not want this to happen to our content (grant the photographer a transferable use license), then as it says (.. subject to the restrictions and requirements of an applicable product policy")

my understanding of this is that our work has to have a posted policy restricting the use of our product/region/parcel in photography/video

basically we have to opt out of granting the transferable use license. As we are opted into this by our initial agreement to the Terms & Conditions

 

 

 

 

[Rowan Amore]

24 minutes ago, Mollymews said:

to use, reproduce, distribute, prepare derivative works of, display, and perform the resulting photograph, image, film, or video

But it does not include sale of said works.  That seems to be a specific exclusion.

[Mollymews]

18 minutes ago, Rowan Amore said:

But it does not include sale of said works.  That seems to be a specific exclusion.

as wrote it doesn't preclude the transfer of the license in exchange for money.  The US common law principle inherited from english common law says that when a law/rule/regulation/policy is silent on a action, then the action is not illegal

the SL content maker can preclude sales of their content by saying so in their product policy

[Rowan Amore]

15 minutes ago, Mollymews said:

as wrote it doesn't preclude the transfer of the license in exchange for money.  The US common law principle inherited from english common law says that when a law/rule/regulation/policy is silent on a action, then the action is not illegal

the SL content maker can preclude sales of their content by saying so in their product policy

Wth that in mind, would any content that was no transfer be included?  That seems to include any reselling.  it seems like a slippery slope and one a person might want to speak to a lawyer about.  I can't even give away content that's no transfer.

[Mollymews]

16 minutes ago, Rowan Amore said:

Wth that in mind, would any content that was no transfer be included?  That seems to include any reselling.  it seems like a slippery slope and one a person might want to speak to a lawyer about.  I can't even give away content that's no transfer.

you are right that a seller should get legal advice from a qualified person

the Linden policy in 2.5 is about photos/video, which in general law makes the photographer the owner of the copyright of the photo. There have been a number of challenges to this by the subject (or owner of subject) in the photo, none of which have been upheld when the subject (or owner) haven't posted a policy/rule excluding taking photos

is why we now see concert venues/museums/art galleries venues posting notices/signs and printing on tickets that say No Photos/Videos

a US Supreme Court case was about this (I cant remember the name of the case, i would have to look it up). A person took a photo of a painting in an art gallery. The photographer then starting selling copies of their photo. The Court said that because there was no posted notice saying No Photos then the photographer could do this

 

[Scylla Rhiadra]

Maybe I'm missing something . . . quite possibly, in fact . . . but why would the LL Snapshot and Machinima policy not apply here?

Quote

Copyright Licenses

This is the legal permission that you can show the festival organizers or anyone else who’s interested:

As long as you comply with the terms and conditions below, both Linden Lab and the Residents of Second Life (collectively, “we”) grant you the following copyright licenses:

1. A License To Capture. You may take snapshots and capture machinima of the 3D content we created that is displayed in-world, and
2. A License To Use. You may use the resulting snapshot or machinima within or outside of Second Life in any current or future media.

“Use” means “use, reproduce, distribute, modify, prepare derivative works of, display, and perform.” For other definitions, see Definitions.

Both the License To Capture and the License To Use (collectively, the “Licenses”) are non-exclusive and royalty-free. In addition, the License To Use is worldwide, sublicenseable, and transferable.

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

In terms of snapshots, the only real requirement is permission of the landowner if the covenant specifies that this must be obtained. No permission from anyone else, including avatars in the pic, are required. (It's a bit different from machinima however.)

[Rowan Amore]

2 minutes ago, Scylla Rhiadra said:

Maybe I'm missing something . . . quite possibly, in fact . . . but why would the LL Snapshot and Machinima policy not apply here?

In terms of snapshots, the only real requirement is permission of the landowner if the covenant specifies that this must be obtained. No permission from anyone else, including avatars in the pic, are required. (It's a bit different from machinima however.)

My question was that 'use' didn't specifically include sale.  Molly explained but it still seems as if it's something to clarify before doing.

[Scylla Rhiadra]

Just now, Rowan Amore said:

My question was that 'use' didn't specifically include sale.  Molly explained but it still seems as if it's something to clarify before doing.

Right, I saw that, above. As Molly says, I see nothing in either the TOS or the Snapshot & Machinima Policy that precludes the exchange of a digital work for money. And, in fact, there are mesh and texture makers who "sell" copies of their work that can, and indeed sometimes must, be downloaded from either in-world (such as a shadow, normal, or spectral map) or, sometimes, from an off-world web site.

I suppose it's possible that there is a loophole somewhere that might prohibit NFTs generated from snapshots taken in-world, but it would very much run counter to the overall gist of the licensing information that LL provides.

[Mollymews]

9 minutes ago, Scylla Rhiadra said:

In terms of snapshots, the only real requirement is permission of the landowner if the covenant specifies that this must be obtained. No permission from anyone else, including avatars in the pic, are required. (It's a bit different from machinima however.)

it gets murky depending on the RL jurisdiction

depending on jurisdiction then legally my avatar as a body of art is my work . If I put a notice  in my profile saying No Photos then I could sue the photographer for compensation should they sell a photo of me (my avatar)

[Scylla Rhiadra]

On 4/27/2021 at 4:29 PM, angelaThespian said:

We see digital art selling at marketplaces like Nifty Gateway for obscene amounts. Obviously, that's rare. Still a number of photographers have come to me lately asking if photos taken in Second Life are saleable as an NFT for a profit -- even a small profit -- on marketplaces like Nifty Gateway or Rarible.

(Hi Angela!)

There are, of course, also other reasons for artists to be interested in NFTs. Yes, one can in theory make money from them, but I know that there are artists in RL who are interested in them instead because they are a way of "marking" ownership, and establishing that a digital object is unique. In a world where digital artifacts can be reproduced almost flawlessly and without limit, artists may well simply want to establish that they are the ones who own the "original."

In a more subtle way, too, NFTs redress an issue that Walter Benjamin highlighted nearly 80 years ago with regard to mechanical (and now, digital) reproductions, and that is that copies of works of art lose what he calls their "aura" by way of reproduction. So, for instance, we've all of us seen countless reproductions of the Mona Lisa, but this does not stop literally hundreds of thousands of people every year from lining up at the Louvre to see the original. Why? We can probably see and study it better in a good quality reproduction than we would wading through crowds at the museum. But the original has an "aura" that even the most perfect reproduction lacks. NFTs are, perhaps, a way of re-establishing that sense of "specialness" that once adhered to works of art, but that is threatened by digital reproduction.

That said, I think NFTs are a bad idea for all kinds of reasons, at least when they are being treated as sort of form of cryptocurrency.

Edited May 1, 2021 by Scylla Rhiadra

[Scylla Rhiadra]

2 minutes ago, Mollymews said:

it gets murky depending on the RL jurisdiction

depending on jurisdiction then legally my avatar as a body of art is my work . If I put a notice  in my profile saying No Photos then I could sue the photographer for compensation should they sell a photo of me (my avatar)

Yes, that might well be, although most copyright laws also have provisions for artistic reproductions (or parodies) that can demonstrate artistic merit, and that they are merely derived from, rather than reproducing, the original.

A photograph of your avatar is very different in a vast number of ways from your actual avatar.

[Rowan Amore]

15 minutes ago, Scylla Rhiadra said:

Right, I saw that, above. As Molly says, I see nothing in either the TOS or the Snapshot & Machinima Policy that precludes the exchange of a digital work for money. And, in fact, there are mesh and texture makers who "sell" copies of their work that can, and indeed sometimes must, be downloaded from either in-world (such as a shadow, normal, or spectral map) or, sometimes, from an off-world web site.

I suppose it's possible that there is a loophole somewhere that might prohibit NFTs generated from snapshots taken in-world, but it would very much run counter to the overall gist of the licensing information that LL provides.

They are selling copies of their own work.  Selling pictures of someone else's work might be a different thing.  That is what I question.  Taking a picture of a dresser or couch that one hasn't made themselves and selling that picture is not exactly the same as what you described and where I'm curious.  You can use it in a blog post, distribute it to friends and strangers, edit it however you'd like.  But sell?