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

[Lindal Kidd]

I think those making a distinction between "selling" and "distributing" are missing something.

Let's say I post a picture taken in SL on my blog. This is "distributing" it outside of SL, and it's done all the time.

But now, let's also say my blog is monetized...I get ad revenue based on how many people read it.

Now I am making money from that picture I published. I'm not selling the image itself, but I'm selling views of it. This is also done all the time.

I don't see any difference if someone makes money by selling a single copy of the image as an NFT, or a million views of it.

As far as I can tell, you can use (edit, post, copy, give away or sell) images taken in SL. (Exception: Venues that specifically post restrictions on photography in the parcel description, per LL's photography and machinima policy. If you want to sell your machinima, or even make it in the first place, you must have the parcel owner's specific permission and the permission of avatars depicted. see: http://wiki.secondlife.com/wiki/Linden_Lab_Official:Snapshot_and_machinima_policy)

[FairreLilette]

3 hours ago, Kimmi Zehetbauer said:

This all reminds me of the Pet Rocks from the 70s!

I looked those up and pet rocks are easy as all get-out, this is confusing as heck with the "fine print" because in bold print it says it's free to sell, but you have to put Ethereum in the wallet to begin so you have to buy Ethereum, plus there is no gas fee later after your first gas fee 'if' you sell it at a fixed price.  If you take offers to sell, the seller buys the gas fees not the buyer from what I just read.  There is a lot of fine print to work through understanding all this and it's not all free for the seller.  Even though Ebay is not all free for the seller, it's listing fees are straight forward.  BTW, there is some cute stuff on these websites.  I like Beeple's work that was done about Amazon; that was pretty funny.

[Polenth Yue]

8 hours ago, FairreLilette said:

This is the thing, you'd better be extremely great and confident in yourself that it is great before you go ahead with this, and mine I'd say maybe is average not great but me, personally, I wasn't planning on doing avatar art.  I do my own digital art.  I did see one avatar art on there but it wasn't good, imo, very blah.  Part of the gamble, as I see it, is that you are good enough to be worth these fees and that it will sell, let alone it has to be within the realms of fair use to use SL stuff.  Me, I have no desire to use SL stuff.  I do another type of digital art. 

It isn't really about quality or being good. People bid on these things for bragging rights, which is why your fame is the most important thing.

[angelaThespian]

Thank you everyone! I will need to read this thread a few more times to understand everyone better, but I think the takeaway on NFT's is that: #1 No, NFT's are not entirely legal, or logical and will likely just cause issues and cost money. #2 For those who want to sell their creative photos in the real world (as opposed to the virtual one), it *IS* legal for someone to sell photos of Second Life that may include avatars, goods and sims made by others - even if the maker explicitly says not to - because legally, photos are an artistically modified version of the item, not a resale of the exact item. So for all of those Flickr photos of SL that we see, those photographers who created them can go to a gallery in New York and try to peddle them there. Yes? So, they may be copyrighted as original works but they cannot be non-fungible according to LL's TOS. Can I get an Amen? Or at least a "that is how I understand TOS too?" I have asked Linden Labs, and I was referred to the TOS. I almost wonder if anyone clearly knows, and if special little leprechaun lawyers wrote the TOS just to confuse everyone. Thanks again to everyone.

 

Edited May 4, 2021 by angelaThespian

[Rowan Amore]

8 minutes ago, angelaThespian said:

Thank you everyone! I will need to read this thread a few more times to understand everyone better, but I think the takeaway on NFT's is that: #1 No, NFT's are not entirely legal, or logical and will likely just cause issues and cost money. #2 For those who want to sell their creative photos in the real world (as opposed to the virtual one), it *IS* legal for someone to sell photos of Second Life that may include avatars, goods and sims made by others - even if the maker explicitly says not to - because legally, photos are an artistically modified version of the item, not a resale of the exact item. So for all of those Flickr photos of SL that we see, those photographers who created them can go to a gallery in New York and try to peddle them there. Yes? So, they may be copyrighted as original works but they cannot be non-fungible according to LL's TOS. Can I get an Amen? Or at least a "that is how I understand TOS too?" I have asked Linden Labs, and I was referred to the TOS. I almost wonder if anyone clearly knows, and if special little leprechaun lawyers wrote the TOS just to confuse everyone. Thanks again to everyone.

 

NFTs are not something even considered when LL wrote the ToS.  I think it will be discussed a lot in the coming years.  I'm not at all surprised they had no real answer to your question.  There are quite a few articles on law sites that might be worth reading.  If I were looking to sell, I'd considering talking to a lawyer who was well versed in NFTs.

[Scylla Rhiadra]

1 hour ago, angelaThespian said:

Thank you everyone! I will need to read this thread a few more times to understand everyone better, but I think the takeaway on NFT's is that: #1 No, NFT's are not entirely legal, or logical and will likely just cause issues and cost money. #2 For those who want to sell their creative photos in the real world (as opposed to the virtual one), it *IS* legal for someone to sell photos of Second Life that may include avatars, goods and sims made by others - even if the maker explicitly says not to - because legally, photos are an artistically modified version of the item, not a resale of the exact item. So for all of those Flickr photos of SL that we see, those photographers who created them can go to a gallery in New York and try to peddle them there. Yes? So, they may be copyrighted as original works but they cannot be non-fungible according to LL's TOS. Can I get an Amen? Or at least a "that is how I understand TOS too?" I have asked Linden Labs, and I was referred to the TOS. I almost wonder if anyone clearly knows, and if special little leprechaun lawyers wrote the TOS just to confuse everyone. Thanks again to everyone.

 

My read is certainly that selling photos is permitted by the ToS. I suppose, were this my intention, I might take the precaution of getting a waiver from the landowner and/or any avatars in the scene -- but honestly, I don't know how you would do this in a legally meaningful way without RL disclosure.

Generally, I should think that LL would be thrilled to learn that artists were making RL money from their SL art.

In terms of legal issues, however, it might be worthwhile checking to see if this is ground that has already been covered. There is a lot of video game and Minecraft art out there already. I'm not sure how much of it has been monetized in quite this way, but it might be worth a look via Google.\

One last thing: it occurs to me suddenly that I know of at least one SL artist who has announced that he is making NFTs. I don't know if he's doing so using his RL art, or his RL work (of which he has a lot), but I'll shoot you his name in-world. You may, of course, already know him, but one idea might be to contact him and see if he has looked into this at all.

[FairreLilette]

2 hours ago, angelaThespian said:

Thank you everyone! I will need to read this thread a few more times to understand everyone better, but I think the takeaway on NFT's is that: #1 No, NFT's are not entirely legal, or logical and will likely just cause issues and cost money. #2 For those who want to sell their creative photos in the real world (as opposed to the virtual one), it *IS* legal for someone to sell photos of Second Life that may include avatars, goods and sims made by others - even if the maker explicitly says not to - because legally, photos are an artistically modified version of the item, not a resale of the exact item. So for all of those Flickr photos of SL that we see, those photographers who created them can go to a gallery in New York and try to peddle them there. Yes? So, they may be copyrighted as original works but they cannot be non-fungible according to LL's TOS. Can I get an Amen? Or at least a "that is how I understand TOS too?" I have asked Linden Labs, and I was referred to the TOS. I almost wonder if anyone clearly knows, and if special little leprechaun lawyers wrote the TOS just to confuse everyone. Thanks again to everyone.

 

I think LL referred you to the TOS because if you don't understand it you should wait until you do as far as fair use is concerned.

Also, many places that host NFT artworks also want you to submit originals instead of guessing you may or may not have the right to the use of something you did not entirely create, i.e., fair use.  So, these NFT's auction houses want you to be sure you fully understand fair use if you go that route.

What these NFT's are attempting to do is give a sort of legal recorded copyright upon sale with a certificate.   It's kind of cool in that it is attempting to give digital artists a real transacted copyright of sorts.  

To use items you did not make in SL, you would need permissions or change the photo enough so it falls within the realms of fair use.  That is my understanding of the LL TOS.

EDIT:  Reposting in stuff I posted on page 2 from the LL TOS:  If you don't know what fair use is, there are links below.

This is in the LL Wiki, however.  

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

If the content that you capture is subject to any trademark, service mark, trade dress, publicity rights, or other intellectual property or proprietary rights, you must obtain the necessary licenses and permissions to use the content, and you use it at your own risk.

a) No Limitations on Fair Use or Use of Public Domain Works.

This Policy does not limit fair use or use of public domain works. You may wish to consult the Stanford Copyright & Fair Use Center for general information on fair use and the public domain. However, because the law may or may not recognize fair use or public domain status in different situations, we suggest consulting a lawyer before relying on any fair use or public domain status.

 

 

Edited May 4, 2021 by FairreLilette

[FairreLilette]

On 4/27/2021 at 1:29 PM, angelaThespian said:

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

I have read a bunch of websites on fair use and it's tricky.  I think I may have a short answer but all articles still advise speaking with an attorney, which is expensive and I'm not sure what attorneys would really even want to take the time. 

Short answer, fair use is an artwork that is so changed from the original item it could hold a copyright in and of itself.  That would mainly be because it no longer resembles the original.

Now, part B.  Some of us might wonder how could we take photos in our own real life home and be able to use all the furniture in our real life home without needing permission and sell those photos?  I'm going to guess a bit and say that is probably because most real life furniture is not considered a work of art whereas many items on SL are considered a work of art and even if some items in SL are not considered a work of art they are considered intellectual property.  

Some of us who use full perm items and make them into something else deal with a kind of fair use but we are still under user license per the SL TOS and each full perm seller's own personal user license which is a limited license and those of us who use full perm items here in SL must adhere to each full perms sellers user license as every one could be different and unique.   In short again here, part of SL if not all may work under what is known as user license.  Ultimately though I believe all items are owned by LL which is even more confusing.   However, what LL ultimately "owns" is something like control such as they could shut down tomorrow and owe us nothing if say we spent thousands of dollars on full perm items the previous week.  What we buy here is a luxury with no contract nor guarantee for permanence.    

Edited May 4, 2021 by FairreLilette

[Selene Gregoire]

13 hours ago, Scylla Rhiadra said:

worth a look via Google.\

DeviantArt is a good place to start.

https://www.deviantart.com/search/deviations?q=second+life&tag=secondlife

[Maryanne Solo]

I nominate Fungible Token for the next round of official new Linden names. 8^)

Edited May 7, 2021 by Maryanne Solo
Funged up the spelling :)

[Polenth Yue]

7 hours ago, Maryanne Solo said:

I nominate Fungible Token for the next round of official new Linden names. 8^)

Fungible is a sad word for me, as when I first heard it, I really hoped it was about having the potential to become a fungus.

[Mollymews]

9 hours ago, Maryanne Solo said:

Funged Spelling

i vote for that name as well

[Finite]

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

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

I feel as though a lot of this is already covered. Just look at people who make a living streaming video games. They do not have to give royalties to those games. A photo wouldn't be much different than a recording or a stream. Much like in the real world. If I took a photo of a bunch of people and decided to sell it, I wouldn't need to get permission from them or the makers of whatever they are wearing to do so. Nor would I need permission from any signage that may be in the background. I think the lawyers will come calling anyways since this is newer ground but I feel like there is already more precedent favoring the photographer than anyone who would attempt to take them in court. 

Edited May 8, 2021 by Finite

[Gabriele Graves]

I wonder how many vendors in SL ask/pay for permission for items shown in their ads that are not their own products.

[FairreLilette]

1 hour ago, Finite said:

If I took a photo of a bunch of people and decided to sell it, I wouldn't need to get permission from them

I was very much into photography in real life.  In real life, yes you are supposed to get something called a model release before submitting photos into contests or for sale in real life; what they are wearing no, that's considered free advertising.  The real life world looks at free advertising much differently.  

A model release, known in similar contexts as a liability waiver, is a legal release typically signed by the subject of a photograph granting permission to publish the photograph in one form or another. The legal rights of the signatories in reference to the material is thereafter subject to the allowances and restrictions stated in the release, and also possibly in exchange for compensation paid to the photographed. A model release is not needed for most photograph publication because of freedom of speech rights (which vary by country.) A model release is needed for publication where personality rights or privacy rights would otherwise be infringed.

 

1 hour ago, Gabriele Graves said:

I wonder how many vendors in SL ask/pay for permission for items shown in their ads that are not their own products.

That's an interesting pov but then the photo isn't being sold as an artwork or an NFT, plus it's free advertising for them so I doubt they'd complain.

Edited May 8, 2021 by FairreLilette

[Gabriele Graves]

19 minutes ago, FairreLilette said:

That's an interesting pov but then the photo isn't being sold as an artwork or an NFT, plus it's free advertising for them so I doubt they'd complain.

Then I would expect the same reasoning for NFTs.  The artwork is a creation incorporating other people's items for the purposes of making money.  That sentence holds hold true for pictures taken and both sold as NFTs and used as SL product adverts.  So both are used in commercial ventures.  If the expectation that one requires permission from all item creators, it holds true for the other one also.

Whether someone complains about the use is immaterial as it could also be argued that creators of items used in NFTs may also not care and see it as free advertising.

Edited May 8, 2021 by Gabriele Graves

[FairreLilette]

16 minutes ago, Gabriele Graves said:

may also not care and see it as free advertising.

I know there is a lot of free advertising on FLICKR as many put where one can find each and every item and it's not all bloggers putting up that info as to where to purchase everything.

It does matter if one views something as free advertising as a complaint could become a legal complaint is more along the lines of what I meant especially in regards to selling a photo as an artwork or an NFT.

Now, as far as I understand, the LL TOS says one's going ahead and selling photos or macinemas here from SL without permission, they do so at their risk or something to that effect.  So, if anyone wants to attempt to sell their photos from here, they do so at their own risk.

There was a time I thought it would be cool to publish my own little photographic SL book.  Now it seems kind of complicated.

If there is an attorney around here, someone who could chime in and give more specifics, that would be helpful.  

Edited May 8, 2021 by FairreLilette

[Gabriele Graves]

It's all opinion and interpretation.  Yours, mine and everyone else's.  Only opinions that really matter, of course, are LL's and RL courts.  My post is to point out the absurdity of the whole thing and the huge can of worms around this and the stated policy.

Edited May 8, 2021 by Gabriele Graves

[Rowan Amore]

1 minute ago, Gabriele Graves said:

It's all opinion and interpretation.  Yours, mine and everyone else's.  Only opinions that really matter, of course, are LL's and RL courts.  My post is to point out the absurdity of the whole thing and the huge can of worms around this and the stated policy.

This is basically what I've been saying.  We can all guess as to the legality.  The ToS was written before NFT was a big thing.  Perhaps in the future, they will have to address this issue to clarify it for everyone.

[Wulfie Reanimator]

I would start by asking "can you sell SL photos?"

The answer to that seems to be yes, see the entire SL photography/machinima market, including paywalled content such as Patreon.

Extrapolating from that, I don't think blockchain changes anything regarding TOS.

[FairreLilette]

16 minutes ago, Rowan Amore said:

This is basically what I've been saying.  We can all guess as to the legality.  The ToS was written before NFT was a big thing.  Perhaps in the future, they will have to address this issue to clarify it for everyone.

Yes, it was written before NFT's.  My thinking on the asking permission could be more to avoid things like blackmail or invasion of privacy especially in regards to using photos or macinemas as porn and/or selling as porn without the users permission, and perhaps the TOS should have stated that.  The rest does seem overblown.  

 

19 minutes ago, Wulfie Reanimator said:

I would start by asking "can you sell SL photos?"

The answer to that seems to be yes, see the entire SL photography/machinima market, including paywalled content such as Patreon.

Extrapolating from that, I don't think blockchain changes anything regarding TOS.

How do you reach that conclusion when the LL TOS about photographs and machinemas says this below which I've posted twice in this thread; now this is the third time.

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

If the content that you capture is subject to any trademark, service mark, trade dress, publicity rights, or other intellectual property or proprietary rights, you must obtain the necessary licenses and permissions to use the content, and you use it at your own risk.

 

[Wulfie Reanimator]

1 hour ago, FairreLilette said:

How do you reach that conclusion when the LL TOS about photographs and machinemas says this below which I've posted twice in this thread; now this is the third time.

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

If the content that you capture is subject to any trademark, service mark, trade dress, publicity rights, or other intellectual property or proprietary rights, you must obtain the necessary licenses and permissions to use the content, and you use it at your own risk.

 

Firstly, that part of the TOS doesn't say that you can't sell SL photos. It simply tells you to make sure you have all the necessary permissions. LL is covering themselves there; if your use of photography/machinima violates someone's legal rights, you're responsible, not LL.

If it was entirely against TOS as you seem to imply, how do you explain the existence of an entire public market operating within SL, advertising their services in their SL profiles and in-world locations?

It's not like it's a new phenomenon or off-platform black market that LL has no control over. Are there any known creators who have been banned for profiting from photography/machinima?

[FairreLilette]

2 hours ago, Wulfie Reanimator said:

If it was entirely against TOS as you seem to imply

I never said it was against the TOS entirely; I don't know where you see that I said or implied that...? The LL TOS suggests getting permission first for both models and sims plus discusses IP and property rights and then below that part I copy and pasted above about snapshots and machinemas, it has a small section on fair use.  Fair use would be not needing permission in certain circumstances.  But, I never said you cannot sell your photos.  And yes, it does say that doing so is at our own risk.  LL will not be involved.  LL referred the OP to the TOS after she contacted them about selling her own NFT's as she posted that in this thread about the reply from LL she received.  

EDIT:  It seemed to me in your post above you were saying one can just sell their photos period without limits.  If I misunderstood your post, I apologize for that.  We can sell but there seem to be limitations and all LL will get involved with is sending one back to the TOS.  

Edited May 8, 2021 by FairreLilette

[Wulfie Reanimator]

1 hour ago, FairreLilette said:

EDIT:  It seemed to me in your post above you were saying one can just sell their photos period without limits.  If I misunderstood your post, I apologize for that.  We can sell but there seem to be limitations and all LL will get involved with is sending one back to the TOS.  

You got it. 🙂

I think it's so obvious that anything you make money off of has its limits (especially copyright/trademark/etc) that it doesn't even need to be said outside of strict legalese.

Edited May 8, 2021 by Wulfie Reanimator

[Finite]

5 hours ago, FairreLilette said:

 

A model release, known in similar contexts as a liability waiver, is a legal release typically signed by the subject of a photograph granting permission to publish the photograph in one form or another. The legal rights of the signatories in reference to the material is thereafter subject to the allowances and restrictions stated in the release, and also possibly in exchange for compensation paid to the photographed. A model release is not needed for most photograph publication because of freedom of speech rights (which vary by country.) A model release is needed for publication where personality rights or privacy rights would otherwise be infringed.

 

That's an interesting pov but then the photo isn't being sold as an artwork or an NFT, plus it's free advertising for them so I doubt they'd complain.

This only applies if the model is the subject of the photo. Just because someone is in a photo, it doesn't make them a model nor the subject. 

Edited May 8, 2021 by Finite