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

[Finite]

3 minutes ago, FairreLilette said:

Yes, but that law as I show above protects the architectural design itself and a photo has nothing to do with that unless one is using the photo to help them re-create an older homes non-copyrightable design not necessary sell that photo.  And, no, it's not VARA.  I think VARA is to prevent others from defaming an artist or their work and representing it in a defaming way or something like that.  (I'll post a bit below).  However, back to this SL and the Wiki from Linden Lab, it's a you can but there are stipulations kind of thing, and it's like that in real life too and it's complicated.  In my photography school we learned about model releases and property releases as well as you'd better ask permission before even taking a photo.   I carried model releases with me as they are very inexpensive and asked prior to taking a photograph.   In the LL Wiki, I see LL has built on the real world here a bit about permission, and without being here forever discussing this forever, it's best to read the TOS regarding NFT's as the TOS also says it's up to your own risk you want to take.  Attorneys could be expensive not to mention for fair use an attorney would have to see every single artwork.  I have read the TOS also of some of these NFT's and they want to be sure it is copyrightable artwork one is selling because a legal contract will be recorded into the blockchain upon sale and a legal copyright created into the blockchain to put it simply because that is complicated too.  

 

https://en.wikipedia.org/wiki/Visual_Artists_Rights_Act

ARA exclusively grants authors of works that fall under the protection of the Act the following rights

• right to claim authorship
• right to prevent the use of one's name on any work the author did not create
• right to prevent use of one's name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author's honor or reputation
• right to prevent distortion, mutilation, or modification that would prejudice the author's honor or reputation

Additionally, authors of works of "recognized stature" may prohibit intentional or grossly negligent destruction of a work. Exceptions to VARA require a waiver from the author in writing. To date, "recognized stature" has managed to elude a precise definition. VARA allows authors to waive their rights, something generally not permitted in France and many European countries whose laws were the originators of the moral rights of artists concept.^[2]

Yes the model release you sited only applies to commercial use. Like in ads or commercials and branding. The act of selling a photo is not commercial use in terms of copyright law. In a dictionary yes but its not how it's defined in law. Judge's determine the definition of words and terms in law. Not dictionaries.

[FairreLilette]

1 minute ago, Finite said:

Yes the model release you sited only applies to commercial use. Like in ads or commercials and branding. The act of selling a photo is not commercial use in terms of copyright law. In a dictionary yes but its not how it's defined in law. Judge's determine the definition of words and terms in law. Not dictionaries.

That's not what we were told.   Private/commercial use is often the words used to say how one might or might not use a photo.   

So, we agree to disagree.

I already believe everyone better decide this TOS for themselves as the risk is their own, or make sure they get a professionals opinion prior.  

[Finite]

6 minutes ago, FairreLilette said:

That's not what we were told.   Private/commercial use is often the words used to say how one might or might not use a photo.   

So, we agree to disagree.

I already believe everyone better decide this TOS for themselves as the risk is their own, or make sure they get a professionals opinion prior.  

I'm fine with that. However just think of a freelance photographer for a news company. He doesn't and has never needed permission from everyone in his photos to sell it to a News company for use in a News article or News segment on a show. If he used the photos commercially he would need permission but the act of selling said photo is not commercial use. And the use of the News company on their show or in an article is also not commercial use.

I mean if this were the case they would need to ret-con some of the back story of Spiderman xD.

Edited May 8, 2021 by Finite

[FairreLilette]

8 minutes ago, Finite said:

never needed permission from everyone

Yeah, but still the news reporter needs it from some people.  And, there we'd go 'round and 'round again.  

I could use an example of a photo I took.  Now I do not remember who designed the build now and put it in Editor's Picks.  But, it got me thinking there are many people involved here more than just me snapping the picture I will put below.  Besides me, there is the person who designed this whole surreal fantasy sim, and then there are the designers who made all the items in the photo, and then there is me - the one who snapped the photo.  Now I wonder do I have full rights to sell this?  Well, we know if a sim owner says no I shouldn't have been able to snap pics at all but it was in Editor's Picks so I didn't think Editor's Picks would have people build stuff not photographable but it's still my fault that I didn't check on the rights to photograph it...to photograph they'd probably be okay...but to sell it?  Don't you think they deserve some credit for this build?  How should I view this photo?  Is it mine alone?  (You can click on the photo to enlarge it.)

Edited May 8, 2021 by FairreLilette

[Finite]

20 minutes ago, FairreLilette said:

Yeah, but still the news reporter needs it from some people.  And, there we'd go 'round and 'round again.  

I could use an example of a photo I took.  Now I do not remember who designed the build now and put it in Editor's Picks.  But, it got me thinking there are many people involved here more than just me snapping the picture I will put below.  Besides me, there is the person who designed this whole surreal fantasy sim, and then there are the designers who made all the items in the photo, and then there is me - the one who snapped the photo.  Now I wonder do I have full rights to sell this?  Well, we know if a sim owner says no I shouldn't have been able to snap pics at all but it was in Editor's Picks so I didn't think Editor's Picks would have people build stuff not photographable but it's still my fault that I didn't check on the rights to photograph it...to photograph they'd probably be okay...but to sell it?  Don't you think they deserve some credit for this build?  How should I view this photo?  Is it mine alone?  (You can click on the photo to enlarge it.)

Yes totally understand your perspective and a lot of it probably hasn't been determined yet in courts I don't think in terms of photos taken in a virtual realm. Like are those still considered "photos" per se in a legal sense? We can only really go on current precedent really.

When I first started paying attention to SL photography I initially considered it illustration in my mind and I think that rubbed some photographers the wrong way but after having done some photography in SL for the past year I feel as though it is actually photography. So who knows really.

Edited May 8, 2021 by Finite

[FairreLilette]

1 minute ago, Finite said:

hasn't been determined yet in courts I don't think in terms of photos taken in a virtual realm

This is where I am at with plus I think LL isn't quite sure either since they referred the OP to the TOS.

I had once wanted to do a book through FLICKR, now I don't know.

I feel similar to the OP, unsure, and I'll leave it at that.

I'm not completely sure.  It's part mine...all mine...I don't know.

[Finite]

7 minutes ago, FairreLilette said:

This is where I am at with plus I think LL isn't quite sure either since they referred the OP to the TOS.

I had once wanted to do a book through FLICKR, now I don't know.

I feel similar to the OP, unsure, and I'll leave it at that.

I'm not completely sure.  It's part mine...all mine...I don't know.

I think an interesting counterargument to the post you made with the picture of the sim is that even though that sim is private and owned privately, anything being displayed on it could be considered public since we do not have any reasonable expectation of privacy over the internet. It's all public according to law. ToS is another thing. Like I can take a picture of someone's avatar in their private SL home and sell it if someone was inclined to buy it and not break any privacy laws in the process. However I am sure I'd be breaking some ToS lol.

[Drake1 Nightfire]

15 hours ago, Finite said:

I'm fine with that. However just think of a freelance photographer for a news company. He doesn't and has never needed permission from everyone in his photos to sell it to a News company for use in a News article or News segment on a show. If he used the photos commercially he would need permission but the act of selling said photo is not commercial use. And the use of the News company on their show or in an article is also not commercial use.

I mean if this were the case they would need to ret-con some of the back story of Spiderman xD.

In the United States, it's illegal for a photographer to use someone's likeness commercially without a photo release form. Likewise, it's illegal for a client to use images from a photographer without the same permission.

A freelance photographer is not selling commercial use images as they are not employed full time by the news station. Legally as they are selling individual images they are considered editorial images and do indeed necessitate a release form from the person in the image or their legal representative or guardian. 

 

[Bree Giffen]

So the answer to the Original Poster's question is YES, you can sell Second Life screenshots as NFTs, if you have the proper release forms from all subject avatars and permissions from every single creator involved in the creation of those avatars or any visible objects in the foreground and background. You need permission from the parcel/region owner and also follow the Linden Lab TOS and machinima policy.

Glad we cleared that up!

[Drake1 Nightfire]

33 minutes ago, Bree Giffen said:

So the answer to the Original Poster's question is YES, you can sell Second Life screenshots as NFTs, if you have the proper release forms from all subject avatars and permissions from every single creator involved in the creation of those avatars or any visible objects in the foreground and background. You need permission from the parcel/region owner and also follow the Linden Lab TOS and machinima policy.

Glad we cleared that up!

No. RL laws and the TOS are different. All that applies in SL is the ToS and the land owners covenant. If the Sim owner says no pictures/machinima and you violate that they can have your videos pulled from any LL venue. They cant do diddly about non LL venues. They will probably at the very least ban you from ever going back though. 

[FairreLilette]

56 minutes ago, Bree Giffen said:

So the answer to the Original Poster's question is YES, you can sell Second Life screenshots as NFTs, if you have the proper release forms from all subject avatars and permissions from every single creator involved in the creation of those avatars or any visible objects in the foreground and background. You need permission from the parcel/region owner and also follow the Linden Lab TOS and machinima policy.

Glad we cleared that up!

Fair use is okay.  Land owners can set their land as no photos and no macinemas that's why I say in my post I didn't check for that right so I don't know.  But, think of going to a build in Editor's Picks in SL, aren't those sort of a 3D work of art in and of themselves?  I am wondering this but if the person allows photos and macinemas, then they are allowed.  As far as content created here in SL that is stuff that is made not by ourselves...I am not sure.  

Here's a bit from LL TOS

1.6. You agree to respect the Intellectual Property Rights of other users, Linden Lab, and third parties.

You agree that you will not copy, transfer, or distribute outside of Second Life any Content that contains any Linden Content, in whole or in part or in modified or unmodified form, except as allowed by the Snapshot and Machinima Policy, or that infringes or violates any Intellectual Property Rights of Linden Lab, other Content Providers, or any third parties.

Edited May 9, 2021 by FairreLilette

[Charlotte Bartlett]

I think some went down a rabbit hole as none of this is photography per the OP question:  It’s screenshots from a virtual world.

Also doesn’t matter what policy I have on our commercial regions.  If somebody buys one of my houses and rezzed it on their own region the only thing that matters is my license and SL TOS. 

Not many creators I know have an explicit license that forbids screenshots of their work displayed in Second Life.... so this discussion I have found useful as food for thought as it is a limitation.   I think always if you are doing something commercial with somebody else’s “work” get written permission first,  unless you have purchased a commercial license for your specific use.  However what I do have is copyright of my 3d model and creating a derivative commercial work of a copyright item is where US law does protect me.
 

SL isn’t really set up for this model but the closest this seems to me is where somebody buys a commercial license to purchase an asset to create their own commercial derivative work (eg you buy a 3d model house to use in a poster you sell).    The complexity as you include more in the screenshot eg avatars and clothing will compound that issue.
 

interesting stuff to think about.

 

 

Edited May 9, 2021 by Charlotte Bartlett

[Finite]

4 hours ago, Drake1 Nightfire said:

In the United States, it's illegal for a photographer to use someone's likeness commercially without a photo release form. Likewise, it's illegal for a client to use images from a photographer without the same permission.

A freelance photographer is not selling commercial use images as they are not employed full time by the news station. Legally as they are selling individual images they are considered editorial images and do indeed necessitate a release form from the person in the image or their legal representative or guardian. 

 

Thanks you said what I said just worded differently... But I think you're off a little on the "commercial use" term on how its defined in law. I posted an example earlier in this thread.

"I cannot use a picture of Bob Ross in an ad or as a logo for my brand (commercial use). But I can certainly sell a picture of Bob Ross assuming he was in a place where he wouldn't have a reasonable expectation of privacy (not commercial use)."

Edited May 9, 2021 by Finite

[Charlotte Bartlett]

46 minutes ago, Finite said:

Thanks you said what I said just worded differently... But I think you're off a little on the "commercial use" term on how its defined in law. I posted an example earlier in this thread.

"I cannot use a picture of Bob Ross in an ad or as a logo for my brand (commercial use). But I can certainly sell a picture of Bob Ross assuming he was in a place where he wouldn't have a reasonable expectation of privacy (not commercial use)."

Never seen Bob Ross (or his works) in Second Life......(virtual Bob Ross would be so cool)  😁

Edited May 9, 2021 by Charlotte Bartlett

[Drake1 Nightfire]

57 minutes ago, Charlotte Bartlett said:

Never seen Bob Ross (or his works) in Second Life......(virtual Bob Ross would be so cool)  😁

Sadly i have seen his paintings for sale in SL.. Not cool and something Bob would have been disappointed with. Not angry, just disappointed. Which i think is worse. I would hate knowing i made Bob Ross disappointed in me. 

[Silent Mistwalker]

1 hour ago, Finite said:

Thanks you said what I said just worded differently... But I think you're off a little on the "commercial use" term on how its defined in law. I posted an example earlier in this thread.

"I cannot use a picture of Bob Ross in an ad or as a logo for my brand (commercial use). But I can certainly sell a picture of Bob Ross assuming he was in a place where he wouldn't have a reasonable expectation of privacy (not commercial use)."

You can't use an image of Bob Ross because his image has been copyrighted. The photographer owns the copyrights to the image.

[Finite]

19 minutes ago, Silent Mistwalker said:

You can't use an image of Bob Ross because his image has been copyrighted. The photographer owns the copyrights to the image.

I was referring to the photographer's pov. If I took a picture of Bob Ross out in public (if he were still alive). I could sell it. I wouldn't need his permission. Selling it does not make it commercial in copyright law. It's how it is ultimately used that would determine the commercial use. Whoever bought it couldn't use it in an ad or other commercial uses. But could use it in say a news article or other non-commercial piece. But the photographer can sell the picture.

[Silent Mistwalker]

21 minutes ago, Finite said:

I was referring to the photographer's pov. If I took a picture of Bob Ross out in public (if he were still alive). I could sell it. I wouldn't need his permission. Selling it does not make it commercial in copyright law. It's how it is ultimately used that would determine the commercial use. Whoever bought it couldn't use it in an ad or other commercial uses. But could use it in say a news article or other non-commercial piece. But the photographer can sell the picture.

Let's ask an Intellectual Property Lawyer.

https://answers.justia.com/question/2017/06/23/can-i-print-bob-ross-on-a-shirt-i-have-a-285398#:~:text=You would need permission%2Fa,be liable for copyright infringement.&text=If you're using a,the copyright in that image.

 

Quote

If you're using a photograph of Bob Ross, the photographer owns the copyright in that image. So, you face the same issues described above for copyright infringement and requiring a license to use an image created by someone else. But, let's assume that you have a photograph of Bob Ross that you took yourself, or you obtained a license to a photograph. States have their own laws regarding publicity rights or misappropriation of likeness, and your use of his image, especially in commerce, is likely to give rise to legal liability. The major issue being, it's likely that consumers will believe your product is endorsed by Bob Ross (Inc.).

 

[Finite]

40 minutes ago, Silent Mistwalker said:

Let's ask an Intellectual Property Lawyer.

https://answers.justia.com/question/2017/06/23/can-i-print-bob-ross-on-a-shirt-i-have-a-285398#:~:text=You would need permission%2Fa,be liable for copyright infringement.&text=If you're using a,the copyright in that image.

 

 

The "use" is the key term there. No I cannot use it commercially but I can sell it. I would only push the envelope if I were to mass produce said photo. If I couldn't we wouldn't have a paparazzi. A lot of people would be out of work. And we'd probably see more artist renderings and stick figures on the news prints and media. 

[Silent Mistwalker]

3 minutes ago, Finite said:

The "use" is the key term there. No I cannot use it commercially but I can sell it. I would only push the envelope if I were to mass produce said photo. If I couldn't we wouldn't have a paparazzi. A lot of people would be out of work. And we'd probably see more artist renderings and stick figures on the news prints and media. 

 

Try reading the whole article, not just the parts I posted.

[Finite]

1 hour ago, Silent Mistwalker said:

Let's ask an Intellectual Property Lawyer.

https://answers.justia.com/question/2017/06/23/can-i-print-bob-ross-on-a-shirt-i-have-a-285398#:~:text=You would need permission%2Fa,be liable for copyright infringement.&text=If you're using a,the copyright in that image.

 

 

PS that link you posted answers this question "Q: Can I print Bob Ross on a shirt? I have a direct to garment Printer"   (this is not "can I sell a photograph I took").

 

As a printer I can actually answer this. If a customer came to me and wanted to pay me to do this for her, I would decline. It's very gray area and it's better to be safe than sorry when running printing business. However there are no laws preventing her from doing it herself if she had the machinery.  She could wear the shirt. However she wouldn't be able to sell the shirt even if she personally took the picture. But she could sell the picture itself. If she bought the picture from a photographer the photographer would not be breaking any copyright laws buy selling the image to the person. Since the act of selling an image doesn't make it commercial. Putting it on a shirt (use) does make it commercial.  Paying me to do anything with it, commercial on both ends. Hence me declining.

Edited May 9, 2021 by Finite

[FairreLilette]

4 hours ago, Finite said:

The "use" is the key term there. No I cannot use it commercially but I can sell it. I would only push the envelope if I were to mass produce said photo. If I couldn't we wouldn't have a paparazzi. A lot of people would be out of work. And we'd probably see more artist renderings and stick figures on the news prints and media. 

This thread is about NFT's though and NFT's make a copyright from buyer to seller which you seem to keep forgetting and it's contracted into the blockchain.  So, what and how can we copyright in our photos we take in SL?  It seems to me the below is saying one needs a license.  However, I don't agree with your paparazzi statement either as paparazzi work outside the realms of ethics and they are stalkers and harassers and they should be sued. 

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.

https://www.lindenlab.com/tos

Edited May 10, 2021 by FairreLilette

[Finite]

36 minutes ago, FairreLilette said:

This thread is about NFT's though and NFT's make a copyright from buyer to seller which you seem to keep forgetting. 

I didn't forget that at all. My initial post on this thread was a reply to a comment said that we needed permission from everyone in a screen shot. To which you replied to what I said to that. As far as I know this has been what we've been discussing (for like the last 2 pages). As for the OP I'm pretty well aware what it is about.

 

 

Edited May 10, 2021 by Finite

[Finite]

42 minutes ago, FairreLilette said:

This thread is about NFT's though and NFT's make a copyright from buyer to seller which you seem to keep forgetting and it's contracted into the blockchain.  So, what and how can we copyright in our photos we take in SL?  It seems to me the below is saying one needs a license.  However, I don't agree with your paparazzi statement either as paparazzi work outside the realms of ethics and they are stalkers and harassers and they should be sued. 

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.

https://www.lindenlab.com/tos

If you take this literally just about everyone on Flickr is violating it. I remember when this policy came out a few years ago. Wasn't it taken more as a "cover their own behind" policy than anything with actual legal standing?

[FairreLilette]

20 minutes ago, Finite said:

If you take this literally just about everyone on Flickr is violating it. I remember when this policy came out a few years ago. Wasn't it taken more as a "cover their own behind" policy than anything with actual legal standing?

They get a lot of free advertising on FLICKR plus the image quality on FLICKR is far superior.  I think the distribute means sell, make money from Linden content, etc.  

The real question should be what and how can we as individuals hold a copyright of our own in SL in order to be able to sell an NFT because to sell an NFT we must be the legal copyright holder.  So what can we and can't we copyright here with our photographs?

Edited May 10, 2021 by FairreLilette