Chosen Few Posted March 9, 2012 Share Posted March 9, 2012 Masami Kuramoto wrote: If you disagree that Chosen's legal theories have been utterly debunked, feel free to point out how the FLW museum does not conflict with pretty much everything she said. Gladly. Masami Kuramoto wrote: Was the museum allowed to continue using FLW's works after the license was revoked? They obviously were no longer allowed to use any trademarked or copyrighted materials, of course. That does not mean they couldn't have continued to use the utilitarian elements of the building exteriors, had they wanted to keep doing so. The fact that they chose no to do that doesn't mean they wouldn't have been legally allowed to. Masami Kuramoto wrote: How does the Foundation's C&D letter align with Chosen's claim that architecture is "utilitarian and not copyrightable"? You'd do well to stop just picking out the pieces you think you can argue with, and look at the whole of what I've said (and the whole of the law). I did not say that the whole of architecture is not copyrightable. It's a two part answer, and you MUST take both parts together. The frist part is that a building absolutely IS a utilitarian item. The second part is that if ANY utlitiarian item, be it a building or anything else, incorporates artistic components that are separable from the utilitarian components, then the artistic components are absolutely copyrightable. Taking the first part and arguing against it over and over and over again, while ignoring the second part does not make sense. As for the particular letter in question, I have not read its full text, and will refrain from direct comment on it until I have. But no matter what it says, keep in mind it's only a letter. I could write you a letter asking any number of things from you. It wouldn't mean you'd be obligated to do anythng the law does not require of you. Masami Kuramoto wrote: If the C&D letter was based on trademark rather than copyright law, what difference does it make to the result that the museum is shut down and the exhibits are gone? I'm not sure I understand your question as worded. Nothing makes any different to the result now. It's already happened. If you're asking would trademark considerations alone have necessitated the museum's closure, the answer is maybe. From a purely practical standpoint, it would be pretty hard to run any "______________ Museum" without beging able to fill in that blank. Being barred from using the name of the architect, the names of the exhibits, etc., would not make for very useful museum experience. Still, if such trademarks were indeed the only considerations, then it's conceivable that the build could have been repurposed to become something other than a museum. But clearly, the operators of the museum did not want to do that. They chose to honor the foundation's request to shut down fully, and that was that. I would have done the same, in their place, sad is it would have been. Masami Kuramoto wrote: Should we, in light of these events, report any reproduction of real-world buildings that we find on the grid, on the marketplace, on Turbosquid, Renderosity and the Google 3D warehouse? If you believe that such things are infringing upon anyone's IP rigths, then of course the right thing to do as a concerned citizen would be to notify the owner. It would make sense to educate yourself as well as you can first on what types of works are protected and how, so you don't waste anyone's time, including your own. But when in doubt, by all means notify. Masami Kuramoto wrote: Are we advocates of theft if we don't? No, of course not. But when you state you believe one can simply take what belongs to someone else, simply because the rightful owner has not done as one might have wanted with it, then you are absolutely advocating theft. Link to comment Share on other sites More sharing options...
Kwakkelde Kwak Posted March 9, 2012 Share Posted March 9, 2012 Masami Kuramoto wrote: The flesh wound quote is from a Monty Python movie. If you have seen it, you know what kind of behavioral pattern it refers to. Yes I don't see how that relates to this thread in any way though, at all. Unless you think Chosen is proven wrong on every point and insists this isn't the case. I can't find such a point anywhere, not a single one. Maybe some badly phrased things here and there, but it's the overall view that counts here and Chosen's view makes alot more sense to me than yours. If you disagree that Chosen's legal theories have been utterly debunked, feel free to point out how the FLW museum does not conflict with pretty much everything she said. First of all, as I said and gave the legal reference for, architectural works can't possibly have a copyright if they are older than 1990. That makes the copyright claim on his buildings impossible. Even if this wan't the case, I think a lot of his work isn't publicly accessable, so that would mean even pictorial reproductions or copies or anything aren't allowed. Chosen nowhere denies this. The museum worked on a friendly basis with the foundation as far as i can see, so if the foundation no longer supports the museum and revokes all rights on trademarks such as the name, I can see the museum thinks it's better to pull the plug. I didn't read anywhere the buildings were protected by copyright (as I said, this would be impossible anyway). How does the Foundation's C&D letter align with Chosen's claim that architecture is "utilitarian and not copyrightable"? Before the 1990 copyright was introduced, I think the utilitarian aspect was a very strong point. Not copyrightable? I think I've made that very clear by now. If buildings WERE protected by copyright, why would they be specified again, seperately, in 1990? If the C&D letter was based on trademark rather than copyright law, what difference does it make to the result that the museum is shut down and the exhibits are gone? I'm sure it's based on all kinds of IP protection, some things by copyright, some by trademark, some by other laws. That doesn't make any difference to the museum being closed, but it also doesn't mean the buildings are copyright protected. I really don't see how you draw that conclusion. Should we, in light of these events, report any reproduction of real-world buildings that we find on the grid, on the marketplace, on Turbosquid, Renderosity and the Google 3D warehouse? Are we advocates of theft if we don't? You're an advocate of theft if you say people are allowed to "fill the void", that's simply not true. That's where your arguement with Chosen started I think. Should you report any creators recreating RL buildings in virtual space? That's up to you. Personally I'd like to think it would be pointless since they aren't doing anything illegal. That is unless certain elements of those buildings are protected by copyright or any other IP law. If the 3d modeller uses a RL name for the objects, chances are that's illegal, unless they have explicit permission from the original builders. That's not copyright though, that's trademark. Link to comment Share on other sites More sharing options...
Masami Kuramoto Posted March 10, 2012 Share Posted March 10, 2012 We obviously don't have the text of the original cease-and-desist letter sent by the Foundation, but we do have this statement: http://iggyo.blogspot.com/2010/12/reply-from-frank-lloyd-wright.html The Frank Lloyd Wright Foundation (the Foundation) has received numerous inquiries regarding its decision to terminate the license relationship with Virtual Museums, Inc., the builder of the Frank Lloyd Wright Virtual Museum in Second Life. Misinformation directed towards the Foundation regarding the situation appears in press releases, blogs, and throughout the Second Life community and is perpetuating an incorrect and misleading perception of the Foundation’s position with respect to an educational presence in Second Life.The Foundation and the owners of various Frank Lloyd Wright building sites own copyrights that give the Foundation and others the exclusive rights to copy and display Wright’s buildings and designs. The Foundation entered into a licensing agreement with Virtual Museums, Inc. (VMI) for installation of a virtual museum in Second Life that allowed VMI to reproduce the architectural designs of the homes and buildings created by Frank Lloyd Wright and protected by copyright and trademark law. It was the Foundation’s hope and intention that a virtual museum would be a positive and educational undertaking to allow architects, scholars, students, and a younger generation to be able to learn about the many aspects of Wright’s architecture.The Foundation terminated the license agreement with VMI for numerous reasons, including the fact that several of the buildings as constructed in Second Life and displayed by VMI did not accurately reflect the buildings as actually designed by Frank Lloyd Wright. The Foundation further offered a new and revised license agreement to VMI’s new board and management but it was declined. The Foundation was disappointed that they could not obtain agreement with VMI as to the license agreement terms, but the Foundation and the real world Frank Lloyd Wright building site owners have a duty to protect the intellectual property and works of Wright.The Foundation will continue to look for creative ways to work with academics, authors, scholars, reputable organizations and online and virtual communities to educate the public about the work and teachings of Frank Lloyd Wright. Emphasis added. You say that the letter sent by the Foundation is "just a letter" that anyone could write. However, this particular one was a C&D written by a lawyer which the recipient could not easily ignore. As you can see above and on the Foundation's official website, the Foundation claims to own the copyrights to FLW's buildings and architectural designs. The Frank Lloyd Wright Foundation has been around for a while and is well respected, so let's assume for a moment that its claims are not frivolous. FLW's physically constructed buildings cannot possibly be protected under §102(a)(8) because they were built before 1990, so the lawyers obviously refer to the building designs, i.e. the blueprints, which they consider protected under §102(a)(5). The final straw you are grasping now is the distinction between design and utility. Let's see what the law says about that distinction: 17 USC § 101 - DEFINITIONS “Pictorial, graphic, and sculptural works” include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article. Now there's the rub (and I already pointed this out earlier): Since a virtual building is pure decoration and serves no utility, all of its elements exist independently of utilitarian aspects. And there goes your last straw. You cannot dodge §102(a)(5) through the utilitarian doctrine if the copy is anything but an actual physical building (and that last loophole was removed when AWCPA was passed). Once again there is no case law involved; the statute itself says so. The truth of the matter is that you, dear Chosen, infringed copyrights when you produced 3D models of copyrighted real-world buildings for commercial purposes without permission. The only reason why you got away with it is because no one was there to report you. By your own standards, you are not just an advocate of theft; you are a thief. Link to comment Share on other sites More sharing options...
Kwakkelde Kwak Posted March 10, 2012 Share Posted March 10, 2012 Masami Kuramoto wrote: Now there's the rub (and I already pointed this out earlier): Since a virtual building is pure decoration and serves no utility, all of its elements exist independently of utilitarian aspects. You are reading the article completely backwards. It's the utilitarian aspects of the actual building that can't be protected by copyright. How you as an artist decide to reproduce it is completely besides the point. To be even more specific. If in the actual building something is utilitarian, you can't claim any copyrights. Walls are utilitarian, windows are utilitarian, a roof is utilitarian. If the architect decided to make something special by using a supercomplicated and original rooftile, which could be used as a sculptural piece of decoration, the roof is still not protected by copyright, the rooftile however is. Following your warped logic, one can never reproduce a building if the result is not an actual building. Why was the copyright law on architecture introduced? To make sure the building stays unique and to protect all the work the architect has put into realising the building or to make sure some 3d builder or other artist can't make something resembling it? Link to comment Share on other sites More sharing options...
Masami Kuramoto Posted March 10, 2012 Share Posted March 10, 2012 Kwakkelde Kwak wrote: You are reading the article completely backwards. It's the utilitarian aspects of the actual building that can't be protected by copyright. How you as an artist decide to reproduce it is completely besides the point. To be even more specific. If in the actual building something is utilitarian, you can't claim any copyrights. Walls are utilitarian, windows are utilitarian, a roof is utilitarian. If the architect decided to make something special by using a supercomplicated and original rooftile, which could be used as a sculptural piece of decoration, the roof is still not protected by copyright, the rooftile however is. Sure, I'm reading the article backwards. The Frank Lloyd Wright Foundation is reading it backwards. Actually the entire world is reading it backwards, except for you and Chosen. From Wikipedia: Architectural designs registered as pictorial, graphic, or sculptural works under § 102(a)(5) are evaluated for functionality under the separability test.[33] Under 17 U.S.C. § 101, pictorial, graphic, and sculpture works are protected "insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article . . . shall be considered a pictorial, graphic, or sculptural work only if, and to the extent that, such design incorporates . . . features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article."[34] Thus, for example, a building constructed from the plan registered under 17 U.S.C. § 102(a)(5) is not protectable because the functional elements of a building cannot exist separately and independently from the aesthetic elements of the building.[35] On the other hand, architectural blueprints and plans have been held to be protectable because the plans themselves are not the useful articles, but are rather the expression of the useful articles.[36] Emphasis added. Sorry, Kwakkelde, but you and your stealing friend have argued yourselves into a corner from which there is no escape. The wording of the statute, and all the existing commentary, both on Wikipedia and elsewhere, leave no room for doubt. The utilitarian aspects of a building exist nowhere except in the constructed building itself; not in its blueprints or any other kind of pictorial, graphic or sculptural representation. A 3D model of a building is not a building but an expression thereof, and the expression is protected by copyright law. If the design is not yours, you have no right to use it. Following your warped logic, one can never reproduce a building if the result is not an actual building. Why was the copyright law on architecture introduced? To make sure the building stays unique and to protect all the work the architect has put into realising the building or to make sure some 3d builder or other artist can't make something resembling it? There is nothing warped about it. You can never reproduce a building in any other form than its actual construction (§102a8 notwithstanding) because all other forms are protected by §102(a)(5). The exception of §120a applies only to buildings constructed after 1990 and covers only pictorial representation. The protection for architectural works (§102a8) was introduced in order to protect the actual construction of the building (not covered by §102a5) and in order to create the aforementioned exception for pictorial representation. Link to comment Share on other sites More sharing options...
Kwakkelde Kwak Posted March 10, 2012 Share Posted March 10, 2012 Masami Kuramoto wrote: Sure, I'm reading the article backwards. The Frank Lloyd Wright Foundation is reading it backwards. Actually the entire world is reading it backwards, except for you and Chosen. The foundations letter doesn't mention it. On what do you base the entire world is viewing it your way, which is obviously the wrong way? Sorry, Kwakkelde, but you and your stealing friend have argued yourselves into a corner from which there is no escape. Again, based on what can you possibly make such a claim? A 3D model of a building is not a building but an expression thereof, and the expression is protected by copyright law. If the design is not yours, you have no right to use it. The case is whether you can reproduce a building or not, what you say here means you can't copy a 3d model, since that has copyrights. I'm not arguing that at all. There is nothing warped about it. You can never reproduce a building in any other form than its actual construction (§102a8 notwithstanding) because all other forms are protected by §102(a)(5). The exception of §120a applies only to buildings constructed after 1990 and covers only pictorial representation. Yes and that construction includes, as I said, walls, roofs, floors etc. The protection for architectural works (§102a8) was introduced in order to protect the actual construction of the building (not covered by §102a5) and in order to create the aforementioned exception for pictorial representation. That last sentence makes no sense to me. Why would they make a law only to be able to make an exception to it? btw do you miss Chosen so much you have to give me the same treatment? I'm here to educate, learn, inform and get wiser, none of your posts have helped me with any of that I think. Link to comment Share on other sites More sharing options...
Kwakkelde Kwak Posted March 10, 2012 Share Posted March 10, 2012 LexisNexis (71 Wash. L. Rev. 177) The Architectural Works Copyright Protection Act of 1990 (AWCPA) extended copyright protection to architectural design as part of Congress's effort to conform U.S. law to the Berne Convention. U.S. courts previously had treated architecture as a "useful article" and generally had denied it protection under the "separability" doctrine. The AWCPA treats architecture similarly to other categories of copyrightable subject matter. Conceptually, this is inappropriate because (1) architectural design is a professional service, (2) architecture is a part of our public environment, and (3) architecture's expressive aspects cannot be adequately separated from its useful aspects. As a practical matter, the AWCPA imposes costs on architects that outweigh the benefits that it confers on them. To help alleviate this result, the AWCPA should be amended to limit protection to designs with artistic or aesthetic expression. Nevertheless, architects working under the AWCPA should alter their relationships with their employees, consultants, and clients to minimize liability for infringement. and: United States copyright law did not protect architectural design prior to 1990. 1 Any or all of a building's features could be copied, whether observed in drawings, photographs, or the structure itself. 2 Copyright law limited this borrowing in only two ways. The reproduction of architectural drawings themselves was prohibited, 3 and a sculptural feature of a building could not be copied if that feature could be considered a work of art independent of the building's useful nature. 4 I think that's pretty clear. As long as the building was built before 1990 (older buildings can't be registered as I linked earlier) it's perfectly fine to copy a building in the US. I think the second part also is very very clear on what is protected under the 1990 law and it's not all that much. On top of that there's the exception for making pictorial representations. It's possible to protect a building using a design patent. but those only last for 14 years in the US and can't be renewed. United States Patent and Trademark Office Link to comment Share on other sites More sharing options...
Chosen Few Posted March 10, 2012 Share Posted March 10, 2012 Masami Kuramoto wrote: Since a virtual building is pure decoration and serves no utility, all of its elements exist independently of utilitarian aspects. And there goes your last straw. You cannot dodge §102(a)(5) through the utilitarian doctrine if the copy is anything but an actual physical building (and that last loophole was removed when AWCPA was passed). Once again there is no case law involved; the statute itself says so. You appear to be saying that if I make a model of any utilitarian item, the fact that the model is artwork somehow means the original item magically becomes artwork, too. That makes zero sense, Masami. That's not how it works. But let's set that particular failure of logic aside for a moment. I'd like to examine this notion of "dodging §102(a)(5)", as you put it. Putting it in those terms is a bit distorting of the facts. So, let's look at the facts. Once again, you have to look at the whole of the law, not just the bits and pieces you think are convenient to your current stance. As we've discussed many, many times now, there are several parts to this, and you have to take them all together. One part is that if an item is an artistic work, then in accordance with §102(a)(5), it qualifies for copyright protection, and no one may copy it without the owner's permission. Another part is that the law makes a specific exception for the pictorial representations of a building, if the building has been built within ordinary public view (§120(a)). This exception exists regardless of whatever protections may or may not apply to the pre-construction designs. With both parts in mind, the only pertinent question is whether or not a digital model may be considered a pictorial representation. I believe it can. So does my attorney. So does every legal professional with whom I've ever discussed the subject. So does the entire entertainment industry, for that matter. For example, you don't think they really knocked down whole cities in "2012" or folded them in half in "Inception", right? You do know that all those buildings were actually 3D models, right? You really think the artists who created those models were breaking the law? Masami Kuramoto wrote: The truth of the matter is that you, dear Chosen, infringed copyrights when you produced 3D models of copyrighted real-world buildings for commercial purposes without permission. The only reason why you got away with it is because no one was there to report you. By your own standards, you are not just an advocate of theft; you are a thief. No, the truth of the matter is you didn't like the things I said in response to your posts in this thread, and now you're so excited about having found what you THINK may be a dent in my armor, that you're just gonna keep beating on it and beating on it until you make a hole. But there's no hole to be made. Your understanding of what you're talking about is so limited, so "drive-by", so self-serving, you just won't allow yourself to see the real meaning in it. Masami Kuramoto wrote: A 3D model of a building is not a building but an expression thereof, and the expression is protected by copyright law. If the design is not yours, you have no right to use it. Again, your logic appears to be backwards. You seem to be saying that because a model I might make would be itself be copyrightable (by me), that somehow means I don't have the right to make it. Quite obviously that makes no sense. I'm starting to think maybe it's your vocabulary that's the problem. Did you perhaps mean to say "prohibited" rather than "protected"? If you want to claim that my creating a model of a building is PROHIBITED by the building's copyright, that would make literal sense. It happens to be factually incorrect, but at least it's sensible, and without logical fallacy. In any case, for whatever reason, you just don't seem to be willing to allow yourself to accept that the law provides two different sets of protections: one for the pre-construction design materials that describe a potential building, and another for the post-construction outward appearance of the actual building itself. If a building is in ordinary view by the public, then any member of the public can create artistic representations of its outward appearance. Clearly you're aware of this exception, as you've cited it yourself several times. Yet somehow you still seem to refuse to factor it into your thinking in a logically consistent manner. All appearances are that you'll only acknowledge it in those moments in which you think doing so might somehow prove me wrong about something. Otherwise, you just omit it from your thought process altogether. Right now, it sounds as if you're trying to say that making a representation of the publicly viewable exterior is the same thing as copying the architect's original design model. Under the law, it's not. Masami Kuramoto wrote: You can never reproduce a building in any other form than its actual construction (§102a8 notwithstanding) because all other forms are protected by §102(a)(5). Absolutely not true. Whatever protections are applicable to any design imagery, models, blueprints, etc., as artistic works extend only to those items, and not to the actual building they might describe. The building itself has a different set of protections. Creating a depiction of an already built, publicly visible building, in compliance with the §120 exception, is NOT the same thing as a copying the pre-construction design materials. Masami Kuramoto wrote: The exception of §120a applies only to buildings constructed after 1990 and covers only pictorial representation. Two things here. First, technically you are correct that the exception applies only to constructions after 1990. However, you must understand that this does NOT mean pre-1990 constructions enjoy stricter protections. They don't. Quite the opposite, the protections on those are significantly weaker. Before 1990, it wasn't clear that the protection of designs extended to protecting actual buildings at all. "Depending on circumstances", an architect did not necessarily have the right to stop a third party from constructing a building off of his design, even though the design itself was copyrighted. All that was strictly prohibited was reproducing the design materials. The building was potentially fair game. The 1990 addition to the law did away with the "circumstances", and broadly clarified that one cannot construct a building based on an architect's design without the architect's permission. This is important, of course, but it's not directly relevant to our discussion. Second, the exception for pictorial representations was included in order to ensure that the new protections for architects could not be interpreted too strictly. It was put in place merely to confirm that the public still had the same right it always had to depict the world around them. Buildings are simply too big to omit when painting a landscape, or photographing a cityscape, or what have you. The fact that digital models are not specifically mentioned does not put them outside the spirit of the exception. Again, I'll remind you that almost no one on the planet had the ordinary ability to create 3D models in 1990. Thus it likely simply didn't occur to lawmakers to think about including or excluding them at all. Masami Kuramoto wrote: The protection for architectural works (§102a8) was introduced in order to protect the actual construction of the building (not covered by §102a5) and in order to create the aforementioned exception for pictorial representation. You're correct that the protection was introduced in order to protect against unauthorized construction. However, you're making quite a leap when you say it was introduced in order to create the exception. That's simply not how the creation of anything works, ever. Nobody says, "I'm gonna create X, for the purpose of making an exception to X." The way it works is the item is created first, and then exceptions are considered in order to keep the item fair and appropriately functional. You make it sound like you think the public didn't already have the right to make pictorial representations of buildings. They did. The exception simply guarantees that architects' protections cannot supersede that. Masami, I'm going to suggest that you consult a well versed attorney before you continue any further in your attempt to interpret what to you are foreign laws that you may not have the background to fully understand in their proper context. You just keep not getting it. I'm not sure what else any of us can do to remedy that. Link to comment Share on other sites More sharing options...
Masami Kuramoto Posted March 11, 2012 Share Posted March 11, 2012 Chosen Few wrote: You appear to be saying that if I make a model of any utilitarian item, the fact that the model is artwork somehow means the original item magically becomes artwork, too. That makes zero sense, Masami. That's not how it works. No, that's not what I'm saying. This is what I'm saying: http://copyright.uslegal.com/enumerated-categories-of-copyrightable-works/pictorial-graphic-and-sculptural-work/ Copyright is a form of intellectual property that gives the author of an original work exclusive right for a certain time period in relation to that work. Copyright protection is available for various kinds of work including literary, musical, choreographic, dramatic, pictorial, graphic, and sculptural works etc. Pictorial, graphic, and sculptural works include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Copyright protects only the form of the work and not the mechanical or utilitarian aspects of the work. Therefore the design of a useful article shall be considered a pictoral, graphic, or scriptural work only if, and only to the extent that such design incorporates pictoral, graphic, or scriptural features that can be identified separately from and are capable of existing independently from the article. Under Section 101 of the 1976 Copyright Act, pictorial, graphic, and sculptural works include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. A significant number of works distributed across the Internet are pictorial and graphic works. A work of art which is incorporated into the design of a useful article, but which can stand by itself as art work separate from the useful article, is copyrightable, but the design of the useful article is not. Section 113 deals with the extent of copyright protection in “works of applied art.” The section takes as its starting point the Supreme Court’s decision in Mazer v. Stein, that copyright in a pictorial, graphic, or sculptural work will not be affected if the work is employed as the design of a useful article, and will afford protection to the copyright owner against the unauthorized reproduction of his work in useful as well as nonuseful articles. The broad language used in various sections of the Copyright Act raises questions as to the extent of copyright protection for a pictorial, graphic, or sculptural work that portrays, depicts, or represents an image of a useful article in such a way that the utilitarian nature of the article can be seen. This confusion gave rise to the question as to whether copyright in a drawing or model of an automobile gives the artist the exclusive right to make automobiles of the same design. The 1961 Report of the Register of Copyrights after considering this point stated that copyright in a pictorial, graphic, or sculptural work, portraying a useful article as such, does not extend to the manufacture of the useful article itself. The Report therefore recommended that the distinctions drawn in this area by existing court decisions should not be altered by the statute. The Register’s Supplementary Report also stated about the need of finding statutory formulation that would express the distinction satisfactorily. Section 113 (b) reflects the Register’s conclusion that “the real need is to make clear that there is no intention to change the present law with respect to the scope of protection in a work portraying a useful article as such.” Section 113 © provides that it would not be an infringement of copyright, where a copyright work has been lawfully published as the design of useful articles, to make, distribute or display pictures of the articles in advertising, in feature stories about the articles, or in the news reports. Pictorial, graphic and sculptural work encompasses everything from sculptures and paintings to less conventional items like mannequins and decorative belt buckles. As with other works of art, the required level of creativity is minimal, so this also includes everything from realistic photographs to drawings and renditions of a product. However, unlike other works of art that are entitled to copyright protection, there is an important limitation to this category. In case of pictorial, graphic and sculptural work, the Copyright Act notes that the utilitarian aspects of such works cannot be protected – thus, the design of a useful object cannot generally be protected. So even if there is artistic creativity in a work, the work is protected by copyright only if the design incorporates some pictorial, graphic or sculptural work and if that work is separable and capable of independently existing from the useful object. Emphasis added. By making a 3D model of a utilitarian item whose design can be traced back to its original creator, you confirm that the original item incorporates pictorial, graphic or sculptural work that is separable and capable of independently existing. It is exactly that design which makes your model recognizable. For example, if you model a car, and people recognize the result as a Ferrari, then you have proven beyond doubt that there is copyrighted separable design in a Ferrari, and your model is a derivative work. The same rule also applies to architecture, including the type which is not protected by §102(a)(8): If you model an object that looks like a Frank Lloyd Wright building, then you have copied Frank Lloyd Wright's copyrighted design. Link to comment Share on other sites More sharing options...
Kwakkelde Kwak Posted March 11, 2012 Share Posted March 11, 2012 BitLaw "Design patents and copyrights both cover aesthetic features of articles. Copyright is generally used for non-utilitarian articles (meaning articles which exist only for their looks and not for their usefulness). Examples of non-utilitarian articles covered by copyright include paintings, songs, books, and sculptures. Copyright does extend to utilitarian articles, but only to the extent the aesthetic features of the article can exists independently from the article. An example of this would be a sculpture which is used as the base of a lamp, or a painting which is applied to the side of an automobile." I think we can all agree a building's primary function is to be used, not to be looked at. So buildings are utilitarian. Any wall, floor or roof can under normal circumstances not be considered to be "an aestatic feature which can exist independently from the building". That would have to be a very special element. Frank Lloyd Wright's walls and floors are just walls and floors. I can't see in any way how they could be protected by copyright. (Apart from the fact pre-1990 buildings can not have copyrights in the first place) But this is all pretty much irrelevant, since there's the 1990 law, which was made because buildings were not protected by copyrights prior. What does it protect? U.S. Copyright Office "Designs created on or after December 1, 1990 Designs that were created in unpublished plans or drawings but not constructed as of December 1, 1990, but were constructed before January 1, 2003" One could righfully argue that means buildings designed after 1990 can't be replicated without permission, but then there's the exception that clearly says it's allowed to make pictorial representations of the building, as long as the building is visible from a public space. So the only question to answer is: "Is a 3D model of a building pictorial?". While "pictorial, graphic and sculptural" is defined as a whole, "pictorial" by itself isn't. Since the law and the exception were written before 3D modelling was widespread, we can only try and see how such a thing fits the description. I think seeing a 3D model as "an infinite amount of pictorial representations" is believable, just built in a smart way so you don't have to actually make every single possible view. You're allowed to make a movie (which is a sequence of pictures), you're allowed to take a single picture, that would include a stereoscopic one (which is two pictures). So we can make moving representations and 3D ones. I'd like to believe 3D models could very well pass the legal test, but ofcourse I'm not 100% sure...let's say 99%. So that leaves us with the patent issue. BitLaw "Design patents are utilized to protect the novel ornamental features of a utilitarian object. In cases where the aesthetic features themselves cannot be separated from the utilitarian object, a design patent can protect the ornamental features, while copyright protection cannot. For example, a design patent could protect the look of a computer CPU case, which would not be protectable under copyright law. Note, however, that if the allegedly "aesthetic" nature of a feature is in fact dictated by utilitarian motives (such as the sleekness of certain automobile parts designed to cut down wind resistance), then those features are protectable only by a utility patent. Thus, even though the feature can have a utilitarian purpose, the look of the feature cannot be dictated by utilitarian concerns." So car makers or architects can protect their design using a design patent. As I linked earlier, those last for 14 years. Utilitarian patents 20 years. They can't be renewed. This makes it possible for a car manufacturer to exploit the design for that period. 14 years is a lot longer than most cars will be produced. It also makes it possible for an architect to strengthen the claims on the design, since patents are stricter than copyrights when it comes to "derived" and "copied". If a creator can prove/argue he could have made a design by himself, even if there already was the exact same design (with copyright ofcourse) already made, it's perfectly legal to build it, in any form. A patent however would prevent this, since the actual design, rather than the plans or building, is protected. btw I found this: The Patry Copyright Blog: Second Life and Architectural Works Same questions, 6 years ago, also unanswered.... Just thought I'd share Link to comment Share on other sites More sharing options...
Drongle McMahon Posted March 11, 2012 Share Posted March 11, 2012 Masami's argument does sometimes look like a moving target, but let me try to paraphrase my understanding of the version at the end of this post, so that others can sert me straight ... A 3D model of a building is a (recipe for a) pictorial/graphic/sculptural work. It does not incorporate the utilitarian aspect(s) of the building. Therfore its content is a pictorial/graphic/sculptural work separable from the original building. It follows that the existence of the 3D model implies that it is subject to protection of copyright belonging to the creator of the original building (or his successors). On the face of it, this looks like a plausible argument. However, a problem arises. The argument applies equally to photographs, drawings and sculptures as it does to 3D models, so that source of doubt is removed. Then, if we accept the argument, the law describes an exception to copyright protection (pictorial etc.) for works that, by their very existence (separated from utilitarian), prove that they are not subject to the exception. This implies either that the argument does not in fact represent the intent of the law, or that the law is inherently self-contradictory. Which is it? Or is there some other way out of this impasse? Link to comment Share on other sites More sharing options...
Kwakkelde Kwak Posted March 11, 2012 Share Posted March 11, 2012 Drongle McMahon wrote: A 3D model of a building is a (recipe for a) pictorial/graphic/sculptural work. It does not incorporate the utilitarian aspect(s) of the building. Therfore its content is a pictorial/graphic/sculptural work separable from the original building. It follows that the existence of the 3D model implies that it is subject to protection of copyright belonging to the creator of the original building (or his successors). Ok, that's phrased more clearly already..so if I understand it correctly the arguement is: since the result of the copying is in no way utilitarian, the objects leading to that representation are by definition not utilitarian. That makes no sense to me. You need to look at the actual object. THEN you decide what's utilitarian, THEN you can make a copy of that. Whether the result is utilitarian or not makes no difference. The reproduction can represent utilitarian aspects, it doesn't have to be utilitarian by itself. You can make a 3D model of anything that's physical. Following the logic as described in the quote this means nothing can be considered utilitarian as soon as you reproduce it on paper or as a model. So one could rebuild the entire thing in a working state, then be denied making 3D models of their own creation. How different is this for designs existing only on paper btw, in that case Masami is right as far as I have found. A sketch of a futuristic car has copyrights as a sketch of a car, not as a car. (Can't find the link back, I'll look later if people want to argue). Such a sketch can be used to make an actual car. It can't be copied into a 3d model or new drawing however. Interesting that is:) Link to comment Share on other sites More sharing options...
Drongle McMahon Posted March 11, 2012 Share Posted March 11, 2012 "since the result of the copying is in no way utilitarian, the objects leading to that representation are by definition not utilitarian." No. That isn't what I said at all. Rather ... since the result of the copying is in no way utilitarian, the original object had a pictorial/ sculptural aspect that was separable from its utilitarian aspect. ... The separability is demonstrated by its separation in the 3D model, which is devoid of utlilitarian properties. That is precisely what is subject to protection. It's not that I think this argument is correct, but it is rationally consistent. Link to comment Share on other sites More sharing options...
Innula Zenovka Posted March 11, 2012 Share Posted March 11, 2012 Masami Kuramoto wrote: By making a 3D model of a utilitarian item whose design can be traced back to its original creator, you confirm that the original item incorporates pictorial, graphic or sculptural work that is separable and capable of independently existing. It is exactly that design which makes your model recognizable. For example, if you model a car, and people recognize the result as a Ferrari, then you have proven beyond doubt that there is copyrighted separable design in a Ferrari, and your model is a derivative work. How are they recognising the model as a Ferrari, as opposed to a sports car that looks very like a Ferrari? If they're recognising it because it's got the Ferrrai logo on it, for example, or you're advertising the model as a Ferrari, then we're talking about trademarks, not copyright. But if you're just displaying a model called "Red Sports Car," what aspects of the model do Ferrari's lawyers need to draw to the court's attention? Link to comment Share on other sites More sharing options...
Kwakkelde Kwak Posted March 11, 2012 Share Posted March 11, 2012 Yes that IS what I ment actually, I just suffer from the same disadvantage Masami seems to suffer, that is not being British or American or whatever.... You have no idea in how many ways I have to fold everything I say to make it understandable.... Link to comment Share on other sites More sharing options...
Kwakkelde Kwak Posted March 11, 2012 Share Posted March 11, 2012 Innula Zenovka wrote: But if you're just displaying a model called "Red Sports Car," what aspects of the model do Ferrari's lawyers need to draw to the court's attention? Aspects described in a design patent, which include several drawings. This is exactly why those patents exist, since the subject can't have copyrights. Link to comment Share on other sites More sharing options...
Masami Kuramoto Posted March 11, 2012 Share Posted March 11, 2012 Another source: http://www.bitlaw.com/copyright/unprotected.html Useful articles: Copyright protection is generally not available to articles which have a utilitarian function. Examples of these types of "useful articles" would include lamps, bathroom sinks, clothing, and computer monitors. Under the Copyright Act, the only copyright protection available to these items is for "features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." Unfortunately, this test is inherently ambiguous when deciding the scope of copyright protection for certain useful articles. Some distinctions are clear. For instance, a painting on the side of a truck is protectable under copyright law even though the truck is a useful article. The painting is clearly separable from the utilitarian aspects of the truck. The overall shape of the truck, on the other hand, would not be copyrightable since the shape is an essential part of the truck's utility. Another commonly considered example is that of clothing. The print found on the fabric of a skirt or jacket is copyrightable, since it exists separately from the utilitarian nature of the clothing. However, there is no copyright in the cut of the cloth, or the design of the skirt or jacket as a whole, since these articles are utilitarian. This is true even of fanciful costumes; no copyright protection is granted to the costume as a whole. One of the primary purposes for prohibiting copyright protection in useful articles is to prevent the granting of patent-like protection through the copyright laws. If a useful article was protected under the copyright law, the protection against copying would be quite similar to patent protection. Since copyrights are so much easier to obtain than patents, there would be no way of limiting this patent-like monopoly to inventions that are truly novel and non-obvious. (For more discussion on patent protection, see the BitLaw discussion on patents). Another interesting copyright concern is the extent of copyright protection in pictoral or sculptural works that portray a useful article. Take, for example, a painting of a futuristic looking automobile. Copyright protection would prevent the outright copying of the painting. In addition, copyright law would prevent the creation of a three-dimensional model of the automobile found in the painting. However, under the specific terms of the Copyright Act, copyright law would not prevent General Motors from making a working (hence utilitarian) automobile of the design found in the painting. Emphasis added. It won't get any more explicit than this. If you want to point out that copyright law is ambiguous, be my guest. But if you want to prove me wrong, nothing less than case law will do at this point. The fact that Chosen stole intellectual property for years without getting caught doesn't mean stealing is legal. By the way, there was a related discussion on the New World Notes blog just recently: http://nwn.blogs.com/nwn/2012/03/iris-rants-in-support-of-second-life-cosplay.html This comment is particularly interesting: I have talked to a lot of lawyers about this, and the off-the-record response is basically, "Don't make money off their IP and don't do anything that makes the IP look bad (i.e. use the characters to spout racial slurs or whatever), and the company will probably look the other way." Thing is, they can't say that on record, because they're lawyers. However, at a Stanford law conference I talked with lawyers for Blizzard, EA, and Microsoft, and they went out of their way to say they support fan-made content, and don't like to pursue it with legal action. The other issue is the doctrine of fair use, which would probably apply to much or most types of cosplay and other fan content, as parody or editorial commentary. There's very little legal precedent around these issues, because they rarely go to court, which is probably a good thing for the rights holders, because they might not like the outcome. Even if they won, they'd just be winning a case that alienates their paying customers, and opens a Pandora's Box. Fan-made riffs on game/movie/TV IP are a massive, massive, massive phenomenon online, and Second Life-related stuff is actually a very small iteration of it. Go check out the Deviant Art site, for example, it's rife with it, and it has many tens of millions more viewers than SL. Bottom line: If you think you understand all the legal and practical subtleties of the cosplay/fan content issue, you're probably wrong. And if you think most media companies by and large want to take legal action against cosplay/fan content, or even want you to ask their explicit permission to engage in it, you're *definitely* wrong. Despite all this, random Internet users who clearly don't fully understand the issues involved, still presume to police the IP rights of multi-billion dollar media corporations. Basically, they're engaging in corporate lawyer cosplay. Posted by: Hamlet Au | Saturday, March 10, 2012 at 09:13 AM I do not often agree with Hamlet, but his observation here is spot on. I also think it is worth pointing out that the only people getting upset over these ripped meshes are SL content creators. History shows that the IP owners almost never care. Which brings us back to the example I mentioned earlier: the guy who saw himself in direct competition with imported car and aircraft models. Link to comment Share on other sites More sharing options...
Chosen Few Posted March 11, 2012 Share Posted March 11, 2012 I'm glad to see you've been doing some reading. However, you seem to be grossly misinterpreting what you've read. The main problem right now looks to be in your take on the word "separable", with respect to artistic and utilitarian aspects of an item. You've read the word, but you have not comprehended its proper meaning in this context. Let's try to clear that up. I also have to say it's disappointing that you chose to respond only to the first sentence of my post, and to dismiss everything else. Masami Kuramoto wrote: By making a 3D model of a utilitarian item whose design can be traced back to its original creator, you confirm that the original item incorporates pictorial, graphic or sculptural work that is separable and capable of independently existing. It is exactly that design which makes your model recognizable. That's just not how it works, Masami. The test for whether a form is artistic or utilitarian is in no way dependent on whether or not I can make a 3D model of it. I can make a model of a cardboard box, but that doesn't mean the box itself is now considered an artwork. It's still just a box, still utilitarian. If there's a picture printed on the box, that picture is artwork. It's SEPARABLE from the utilitarian box, because it could be printed (or drawn or painted) onto anything. The fact that it happens to be on that particular piece of cardbaord doesn't mean the box itself is now a copyrightable artwork. But now you're probably thinking, "I said it has be traceable back to its creator. A box isn't unique enough for that." OK, sure, it's unlikely one could distinguish any particular cardboard box from any other, well enough to figure out who originally designed it. So let's go with a more elaborate, more readily identifiable, example. Let's go with a high fashion design. Those tend to be very unique. Let's say Gucci designs a new one-of-a-kind dress, and Angelina Jolie wears it to the next Academy Awards. The whole world is going to know it's a Gucci. Fashion critics and entertainment reporters will talk ad nauseum about the beauty of its form, and the boldness of its lines, the daringness of its cuts, and all the other things fashion critics and entertainment reporters love to rap about. There will be a trail a mile long, tracing that dress design back to its origin. But you know what's going to happen the next day? Knock-off houses are going to come out with hundreds of dresses that look just like it. That will be perfectly legal, because no matter how beautifully or uniquely designed a dress may be, it's still just a garment, a utilitarian item as defined by the law, not a copyrightable artwork. The fact that everyone knows Gucci designed the thing doesn't mean its legal status changes in any way. Of course, if there are prints on the particular fabrics used in the original dress, those prints could be copyrightable, even though the dress is not. Such prints are SEPERABLE from the dress, because they could be printed on anything. The fact that they happen to be applied to fabrics which utlimately became part of a dress does not change this. They are copyrighted independently from the dress. The dress itself remains just a garment, whether it incorporates those works or not. So, if a knock-off house wants to include the prints, they would need to buy the same fabric that Gucci bought. If that's not an option, they'd have to do without the prints. Now, if I were to make a 3D model of that dress, it wouldn't all of a sudden propel the dress out of its utilitarian status, and magically make it an artwork. All it would mean is I happened to make an artwork that happens to look like that dress. The real dress is still the same as it ever was. I would, however, have to exclude any prints or other separable artworks that the real dress might incorporate. I can't copy those without their respective owners' permission. This would perhaps be a good time for reminder that all of Gucci's drawings, sculptures, digital models, or other design documents, ARE copyrightable artworks, even though the dress itself is not. With that in mind, you may be thinking, "Well, if Gucci produced its own 3D model of the dress, then Chosen Few's model of the dress must be a copy of Gucci's model of the dress." And the legal answer would be no, it's not. In order to copy the model, I'd have to have seen the model, and deliberately set out to copy the model. If I haven't seen it, I can't have copied it. Simply depicting a dress I saw on TV is not the same thing as copying the designer's model of that dress. Remember when I said the how's and the why's make all the difference. Well, this is a perfect example. The law does allow that if two artists independently arrive at the same design, then neither copied the other, regardless of who was first. If the second artist was not aware of the first artist's work, then the second work is NOT a copy of the first one. So, if I've only seen the real dress, and I have no idea what the designer's model of that dress might look like, or even if such a model even exiists, I cannot have copied it. These principles apply to buildings as much as to cardboard boxes and garments. The fact that I might make a model of a building doesn't mean the real building is now an artwork. My model is an artwork, yes. But the real thing is still just a building. As for artistic works that happen to be incorporated into buildings, they have to be capable of independent existence before they can be considered artworks, in the same way that the picture on that piece of cardboard is independent, and the print on the fabric is independent. A gargoyle built into a roof, for example, is its own entity. It is a sculpture, which could just as easily have been placed on a pedestal in the middle of a park, as on a roof. Therefore, it is "seperable" from the roof. The roof remains utilitarian, even though the gargoyle attached to it is artistic. The fact that I can produce a model of a building doesn't change the building's utility any more than producing a model of a box changes the box's utility. If the gargoyle is independently copyrighted, then I'd have to leave the gargoyle out, in the same way I'd have to leave the picture out when making a model of that box. In addition to all of the above, we still have the 120 exception to work with. If a building is ordinarily viewable by the public, then it can be depicted. Masami Kuramoto wrote: For example, if you model a car, and people recognize the result as a Ferrari, then you have proven beyond doubt that there is copyrighted separable design in a Ferrari, and your model is a derivative work. Absolutely not true. Anyone can paint a picture of a car, or make a model of one, without infringing on copyright. The maker's name, the model name, the logo, etc., are trademarks which could not be used without permission, so those would have to be left out, of course. But that doesn't speak to copyright in any way. Trademark is not the same thing as copyright. There may also be a trade dress argument to be made regarding certain design aspects of the car. But again, that's a whole other subject from copyright. Trademarks and trade dress are intended to prevent confusion in the market place, to protect the public from mistakenly buying imitation products rather than the real thing. Trademarks are very straight forward, in this regard. If a trademark is applied to a product, the implication is that that the trademark's owner has produced the product. Therefore, it is crucial that trademarks be policed zealously. Trade dress, on the other hand, is far more category-specific. Coca Cola, for example, holds the "red & white waves" look of its canned products as trade dress. Were those colors and shapes to appear on other company's cans, it might confuse the public into thinking that those were in fact Coke products when they're not. Thus nothing that approximates Coke's design can legally be used on non-Coke cans. But that does not mean I couldn't paint similar red and white waves onto a motor cycle or a guitar or any other type of item that everybody knows has nothing to do with beverages. There would be no danger of public confusion, so there could be no argument over trade dress. The distinctive look of Ferrari's cars are protected as trade dress. There is case law confirming this. No one can produce a car that incorporates Ferrari's protected looks, without Ferrari's permission. That does NOT mean, however, that no one can paint a picture of a Ferrari, or make a sculpture of one, or make a 3D model of one. Again, the issue is about protecting the public from buying the wrong products, and it's pretty unlikely that if someone were to buy a model of a Ferrari in Second Life, they'd be under the impression they just bought a RL Ferrari that will magically appear in their RL driveway. Still, it would be interesting to see the result, if such a trade dress suit were ever brought. There are arguments to be made on both sides, for sure. The preset EA/Bell Helicoptor situation will have ramifications. A copyright suit over such matters, however, could NEVER be brought. Cars are not copyrightable, period. The fact that you think these distingly different forms of intellectual property are all one in the same only underscores how utterly out of your depth you are in trying to talk about this subject at all. All signs are you just don't know enough about it to even know what it is you don't know. So, again I'm going to suggest that you consult a well versed attorney before you continue to make such a fool of yourself by pretending to understand laws that you so obviously do not. If you want to learn about these things, that's great. But simply making assumptions, in the hope that you might get to be right, is not learning. Masami Kuramoto wrote: The same rule also applies to architecture, including the type which is not protected by §102(a)(8): If you model an object that looks like a Frank Lloyd Wright building, then you have copied Frank Lloyd Wright's copyrighted design. It's not as simple as that. First, if the building has been build in ordinary public view, then its exterior can be depicted, no matter whether it was designed by Frank Lloyd Wright or by Joe the Plumber or by God. This is absolutely true, regardless of any other protections on the design. Second, not all aspects of the design are even copyrightable in the first place. The artistic aspects can be, but the utilitarian aspects cannot. In order for the entire outward appearance to be protected, the whole exterior must be ornamental, rather than functional. That's a stretch, even for a master like Wright. Masami Kuramoto wrote: http://www.bitlaw.com/copyright/unprotected.html Useful articles: Copyright protection is generally not available to articles which have a utilitarian function. Examples of these types of "useful articles" would include lamps, bathroom sinks, clothing, and computer monitors. Under the Copyright Act, the only copyright protection available to these items is for "features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." Unfortunately, this test is inherently ambiguous when deciding the scope of copyright protection for certain useful articles. Some distinctions are clear. For instance, a painting on the side of a truck is protectable under copyright law even though the truck is a useful article. The painting is clearly separable from the utilitarian aspects of the truck. The overall shape of the truck, on the other hand, would not be copyrightable since the shape is an essential part of the truck's utility. Another commonly considered example is that of clothing. The print found on the fabric of a skirt or jacket is copyrightable, since it exists separately from the utilitarian nature of the clothing. However, there is no copyright in the cut of the cloth, or the design of the skirt or jacket as a whole, since these articles are utilitarian. This is true even of fanciful costumes; no copyright protection is granted to the costume as a whole. One of the primary purposes for prohibiting copyright protection in useful articles is to prevent the granting of patent-like protection through the copyright laws. If a useful article was protected under the copyright law, the protection against copying would be quite similar to patent protection. Since copyrights are so much easier to obtain than patents, there would be no way of limiting this patent-like monopoly to inventions that are truly novel and non-obvious. (For more discussion on patent protection, see the BitLaw discussion on patents). Another interesting copyright concern is the extent of copyright protection in pictoral or sculptural works that portray a useful article. Take, for example, a painting of a futuristic looking automobile. Copyright protection would prevent the outright copying of the painting. In addition, copyright law would prevent the creation of a three-dimensional model of the automobile found in the painting. However, under the specific terms of the Copyright Act, copyright law would not prevent General Motors from making a working (hence utilitarian) automobile of the design found in the painting. Emphasis added. It won't get any more explicit than this. The first three paragraphs of that article confirm everything I said above. It even uses some of the very same examples. The fourth paragraph appears to have you very confused, especially the part you bolded. You seem to be so excited that you found something that says "three-dimensional model", you did not stop to consider the context at all. The meaning of the paragraph appears to be completely lost on you. The reason you can't produce a 3D model of a car that only exists in a panting is because the painting itself is a copyrighted artwork. SInce the car doesn't actually exist, any reproduction of the car would be a reproduction of the painting. This does not mean that if the car actually did exist, one would be prohibited from making a 3D model of the actual car. The painting is copyrighted; the real car is not. Masami Kuramoto wrote: If you want to point out that copyright law is ambiguous, be my guest. But if you want to prove me wrong, nothing less than case law will do at this point. Does this mean you're now retracting your previous statement that case law is unnecessary because the statute says all it needs to say? You can't have it both ways, Masami. Masami Kuramoto wrote: The fact that Chosen stole intellectual property for years without getting caught doesn't mean stealing is legal. I must demand that you either delete that libelous statement, or rephrase it to make it absolutely clear that you're expressing your own opinion, rather than fact. I do not steal intellectual property, ever. You may NOT claim it is fact that I do. Look, if you disagree with me about a topic, fine. If you want to argue with me about it, that's fine, too. If you want to insult me, that's awfully childish of you, but I can take. However, you may NOT claim it is fact that I have stolen intellectual property. It's simply not true, and you open yourself up to legal action by stating it as fact. This may just be a passtime or a hobby to you, Masami, so you might not think this stuff matters all that much. But it is what I do for a living, and I take it extremely seriously. Most of my business comes from word of mouth. My clients come to me because of my reputation within the industry. A lot of them know my SL avatar name long before they know my real name. If you continue to make libelous statements about me, you WILL be held legally accountable for damages. This is no joke. Masami Kuramoto wrote: By the way, there was a related discussion on the New World Notes blog just recently: http://nwn.blogs.com/nwn/2012/03/iris-rants-in-support-of-second-life-cosplay.html This comment is particularly interesting: I have talked to a lot of lawyers about this, and the off-the-record response is basically, "Don't make money off their IP and don't do anything that makes the IP look bad (i.e. use the characters to spout racial slurs or whatever), and the company will probably look the other way." Thing is, they can't say that on record, because they're lawyers. However, at a Stanford law conference I talked with lawyers for Blizzard, EA, and Microsoft, and they went out of their way to say they support fan-made content, and don't like to pursue it with legal action. The other issue is the doctrine of fair use, which would probably apply to much or most types of cosplay and other fan content, as parody or editorial commentary. There's very little legal precedent around these issues, because they rarely go to court, which is probably a good thing for the rights holders, because they might not like the outcome. Even if they won, they'd just be winning a case that alienates their paying customers, and opens a Pandora's Box. Fan-made riffs on game/movie/TV IP are a massive, massive, massive phenomenon online, and Second Life-related stuff is actually a very small iteration of it. Go check out the Deviant Art site, for example, it's rife with it, and it has many tens of millions more viewers than SL. Bottom line: If you think you understand all the legal and practical subtleties of the cosplay/fan content issue, you're probably wrong. And if you think most media companies by and large want to take legal action against cosplay/fan content, or even want you to ask their explicit permission to engage in it, you're *definitely* wrong. Despite all this, random Internet users who clearly don't fully understand the issues involved, still presume to police the IP rights of multi-billion dollar media corporations. Basically, they're engaging in corporate lawyer cosplay. Posted by: Hamlet Au | Saturday, March 10, 2012 at 09:13 AM I do not often agree with Hamlet, but his observation here is spot on. I also think it is worth pointing out that the only people getting upset over these ripped meshes are SL content creators. History shows that the IP owners almost never care. Which brings us back to the example I mentioned earlier: the guy who saw himself in direct competition with imported car and aircraft models. It's hardly surprising that you'd see this as "spot on", since it appears supportive of your earlier stance that it's perfectly OK for people to "fill the void" themselves, by stealing IP, if the rightful owners choose not to put their works in SL. The paragraphs you've excerpted appear to promote the idea of doing what you can get away with, rather than what's right, which is very unfortunate. But for better or worse, Hamlet's opinion is not the law. Link to comment Share on other sites More sharing options...
Kwakkelde Kwak Posted March 11, 2012 Share Posted March 11, 2012 Masami Kuramoto wrote: Another interesting copyright concern is the extent of copyright protection in pictoral or sculptural works that portray a useful article. Take, for example, a painting of a futuristic looking automobile. Copyright protection would prevent the outright copying of the painting. In addition, copyright law would prevent the creation of a three-dimensional model of the automobile found in the painting. However, under the specific terms of the Copyright Act, copyright law would not prevent General Motors from making a working (hence utilitarian) automobile of the design found in the painting. Emphasis added. It won't get any more explicit than this. Do you even read what you're replying to? You just quoted the thing I mentioned myself. The article you quote is about a painting, not about a useful item. As I said, in cases like that you are completely right. The painting is "pictorial, graphic or sculpural" and protected as such. So you can't make a picture of it and you can't make a 3D model of it. As soon as that painting is developed into an actual car, which unlike the painting will be utilitarian in most cases, the copyrights no longer apply to the utilitarian aspects, aspects that can't possibly be in the painting. There are special cases, like a batmobile lawsuit. Someone was selling cars based on the batmobile, now that thing can't really be considered utilitarian, so it could be protected by copyright. History shows that the IP owners almost never care. I'm sure that's the case. That doesn't mean it's legal to copy the things without permission. If IP owners really don't care and want their items being copied, they can put the things in the public domain. Link to comment Share on other sites More sharing options...
Masami Kuramoto Posted March 11, 2012 Share Posted March 11, 2012 Chosen Few wrote: I can make a model of a cardboard box, but that doesn't mean the box itself is now considered an artwork. It's still just a box, still utilitarian. The reason why you can make a model of a cardboard box is because cardboard boxes don't have distinctive shapes. However, there are artworks made of cardboard boxes, and if you recreate them as 3D models, you infringe copyrights. The utilitarian nature of the boxes used to create the artwork does not prevent copyrightability. The arrangement of the boxes is separable from the boxes and their utilitarian aspects. The same things can be said about Ferraris and Frank Lloyd Wright buildings. These are utilitarian items, arranged in a way that is unique and copyrighted. The arrangement is separable, which is why 3D models of Ferraris and FLW buildings are recognizable. But you know what's going to happen the next day? Knock-off houses are going to come out with hundreds of dresses that look just like it. That will be perfectly legal, because no matter how beautifully or uniquely designed a dress may be, it's still just a garment, a utilitarian item as defined by the law, not a copyrightable artwork. The fact that everyone knows Gucci designed the thing doesn't mean its legal status changes in any way. This is not contrary to what I said earlier. In fact it is explained in the article I quoted. A dress is utilitarian, a 3D model is not. For your convenience, I will repeat the part that you failed to comprehend: Copyright protection would prevent the outright copying of the painting. In addition, copyright law would prevent the creation of a three-dimensional model of the automobile found in the painting. However, under the specific terms of the Copyright Act, copyright law would not prevent General Motors from making a working (hence utilitarian) automobile of the design found in the painting. Emphasis added. This would perhaps be a good time for reminder that all of Gucci's drawings, sculptures, digital models, or other design documents, ARE copyrightable artworks, even though the dress itself is not. With that in mind, you may be thinking, "Well, if Gucci produced its own 3D model of the dress, then Chosen Few's model of the dress must be a copy of Gucci's model of the dress." And the legal answer would be no, it's not. The legal answer would be yes. In order to copy the model, I'd have to have seen the model, and deliberately set out to copy the model. If I haven't seen it, I can't have copied it. Simply depicting a dress I saw on TV is not the same thing as copying the designer's model of that dress. If that were true, you could also make a Darth Vader avatar and sell it, because it's just an outfit you saw on TV. The fourth paragraph appears to have you very confused, especially the part you bolded. You seem to be so excited that you found something that says "three-dimensional model", you did not stop to consider the context at all. The meaning of the paragraph appears to be completely lost on you. The reason you can't produce a 3D model of a car that only exists in a panting is because the painting itself is a copyrighted artwork. SInce the car doesn't actually exist, any reproduction of the car would be a reproduction of the painting. This does not mean that if the car actually did exist, one would be prohibited from making a 3D model of the actual car. The painting is copyrighted; the real car is not. The copyright to the car design does not expire when the car is physically built. The 3D model you make is not a car, it has no utilitarian aspects. I must demand that you either delete that libelous statement, or rephrase it to make it absolutely clear that you're expressing your own opinion, rather than fact. I do not steal intellectual property, ever. You may NOT claim it is fact that I do. Your own words from comment #29: Since you mentioned Roddenberry, let's talk Star Trek for a moment. It's hardly any secret that I've done tons of Star Trek work in SL (and elsewhere), both in official and unofficial capacities. The official stuff isn't really relevant in this context, since of course I had express permission for that, by the very nature of having been hired to do it. As for the unofficial stuff, the Star Trek franchise is incredibly supportive of fan art. With very few exceptions, they really don't care what you do, as long as you make it clear that your work is a fan production, and not try to pass it off as official. (A lot of franchises could learn a thing or two from this policy.) And later, in comment #57: Or how about this one, oh great and wise interpreter. I've been hired many times over the years, by many different companies, to replicate various city blocks and such, for use in games, virtual worlds, television shows, even the real estate business. You really want to tell me I've been breaking the law every time I've done that? My attorney doesn't seem to have any problem with it when he reviews my contracts. Let me make this crystal clear for you: Every time you created a 3D model of copyrighted content without permission, you broke the law. If I had a list of the items, I would report you. This forum is a place for artists, not for people who rip stuff. We don't like your kind here. Link to comment Share on other sites More sharing options...
Masami Kuramoto Posted March 12, 2012 Share Posted March 12, 2012 Kwakkelde Kwak wrote: As soon as that painting is developed into an actual car, which unlike the painting will be utilitarian in most cases, the copyrights no longer apply to the utilitarian aspects, They never do. aspects that can't possibly be in the painting. They are not in the 3D model either. Link to comment Share on other sites More sharing options...
Kwakkelde Kwak Posted March 12, 2012 Share Posted March 12, 2012 If you have a picture of a car that does not yet exist there are no utilitarian aspects. If you use that very picture to build it, there are. So the car door on the picture is not utilitarian. Yet that very same door in the actual car is. One can't model a 3D version of the door based on the non utilitarian one in the picture, yet one can model a 3D version of that very same door once it has been built. The only exception, as far as copyrights go, is when the door on that car can be considered an individual piece of art and then we must have one hell of a door. The more exclusive the car, the stronger the case will be in court, but I doubt even Ferrari or Bentley or Porsche can convince a judge their door is a piece of art, seperable from the utilitarian object. As I said, the Batmobile was so special and sculptural, copyright did apply. But that has non functional fans and fins all over. A car door is usually just a car door, something to keep the wind out and the passenger in, that's utilitarian. Link to comment Share on other sites More sharing options...
Chosen Few Posted March 12, 2012 Share Posted March 12, 2012 Masami Kuramoto wrote: The reason why you can make a model of a cardboard box is because cardboard boxes don't have distinctive shapes. Not all buildings have distinctive shapes either. Some are simply a box with windows and doors. Yet you insist that depicting those via digital model is not allowed, simply because I said it is. Masami Kuramoto wrote: However, there are artworks made of cardboard boxes, and if you recreate them as 3D models, you infringe copyrights. The utilitarian nature of the boxes used to create the artwork does not prevent copyrightability. The arrangement of the boxes is separable from the boxes and their utilitarian aspects. All true. But there's also no specific exception written into the law for cardboard box art. There is such an exception for publicly visible buildings, as you know full well. Masami Kuramoto wrote: The same things can be said about Ferraris and Frank Lloyd Wright buildings. These are utilitarian items, arranged in a way that is unique and copyrighted. The arrangement is separable, which is why 3D models of Ferraris and FLW buildings are recognizable. Good God, man! Did you read nothing I said about trademark and trade dress? Cars are NOT copyrighted. Masami Kuramoto wrote: This is not contrary to what I said earlier. In fact it is explained in the article I quoted. A dress is utilitarian, a 3D model is not. When you pull it out of context like that, then no, it's not directly contrary to anything you've said. It's also not directly in support of anything you said. You've distorted the intended meaning by separating it from the whole. I guess that's to be expected by now. It's hardly the first time. The point was simply that a utilitarian item is not protected by copyright. Therefore, anyone can make a model of it, or a drawing of it, or a sculpture of it, or whatever, and there will have been no copyright infringement. I simply cannot fathom why this concept is so hard for you to accept. Somehow you do accept it when it comes to the example of the painting of the car. You acknowledge that a car that exists in a painting could be constructed for real, without infringing on the painter's copyright. Well, what if the painter also created a 3D model of the car? For that matter, what if the "painting" were actually a rendering of that model? Do you really think that would change anything? The car, as a utilitarian item, conceivably could still be built without infringing on copyright. So why won't you allow for the fact that the same is true in reverse? An artist can paint a picture of a car, without infringing on any copyright. He can also create a 3D model of a car, without infringing on copyright. Cars are not copyrighted any more than dresses are copyrighted. A car may incorporate trademarks and/or trade dress, of course. So can garments. But again, this has nothing to do with copyright. Masami Kuramoto wrote: For your convenience, I will repeat the part that you failed to comprehend Now you're miscomprehendeding the very word, "comprehend". That's hilarious. It looks like because I used a big word, you thought it would be really cool if you could find a way to use that same word against me, somehow. Masami, I can promise you, my comprehension is just fine. You, on the other hand, continue to quote out of context, apply circular logic, and make rather astounding leaps of self-serving misinterpretation. Then you say I'm the one who's not comprehending. That's really amazing. In psychology, this is called projection. It just doesn't often happen in writing, so it's rather incredible to watch. It sure would be nice if you'd drop out of this automatic "Say the opposite of whatver Chosen says" mode, and actually talk intelligently about the subject. For a little while there, it looked as if you were actually trying to do that. It no longer does. That's really sad. Masami Kuramoto wrote: The legal answer would be yes. You don't just get to say "yes" only because I said "no". You need to have a reason. Are you denying that the law allows for independent creation? Masami Kuramoto wrote: If that were true, you could also make a Darth Vader avatar and sell it, because it's just an outfit you saw on TV. If copyright were the only form of intellectual property, then yes, I'd be able to do that. But that's not the case. As we already discussed, Darth Vader is a trademarked character. The look of his outfit is entirely protected as such. Why are you so deaf to this concept? Masami Kuramoto wrote: The copyright to the car design does not expire when the car is physically built. The 3D model you make is not a car, it has no utilitarian aspects. The copyright in question does not apply to the car design. It applies to the painting design. If the car does not exist for real, then any model of the car can only be considered a copy of the painting. However, if the car DOES exist for real, then a model of the real thing can be considered a model of the real thing, entirely independent from the painting. Ask a judge, Masami. Ask a lawyer. They'll tell you the same thing. Masami Kuramoto wrote: Your own words from comment #29: Since you mentioned Roddenberry, let's talk Star Trek for a moment. It's hardly any secret that I've done tons of Star Trek work in SL (and elsewhere), both in official and unofficial capacities. The official stuff isn't really relevant in this context, since of course I had express permission for that, by the very nature of having been hired to do it. As for the unofficial stuff, the Star Trek franchise is incredibly supportive of fan art. With very few exceptions, they really don't care what you do, as long as you make it clear that your work is a fan production, and not try to pass it off as official. (A lot of franchises could learn a thing or two from this policy.) And later, in comment #57: Or how about this one, oh great and wise interpreter. I've been hired many times over the years, by many different companies, to replicate various city blocks and such, for use in games, virtual worlds, television shows, even the real estate business. You really want to tell me I've been breaking the law every time I've done that? My attorney doesn't seem to have any problem with it when he reviews my contracts. Let me make this crystal clear for you: Every time you created a 3D model of copyrighted content without permission, you broke the law. If I had a list of the items, I would report you. This forum is a place for artists, not for people who rip stuff. We don't like your kind here. How utterly pathetic. You're insane, Masami, if you think anyone's going to fall for that. Once again, I'll remind you the entire record of this conversation is here for all to read. Quite obviously, the Star Trek stuff is entirely irrelevant. In every single case, I was either hired by CBS (the owner of the Star Trek franchise) to do the work, or else I was in full compliance with their stated fan art policies. I've enjoyed a good relationship with CBS for many years. I've never done anything they haven't authorized, and never would. As for the buildings, the subject you just can't seem to allow yourself to let go of, I will repeat that I've never done anything outside of full compliance with all applicable laws. That you've made up your own interpretations of those laws, seemingly for no other reason than to attempt to discredit me, does not change this in any way. You're the one who advocated ripping, in your very first post in this thread. As you know perfectly well, I've been talking about how wrong it is, throughout the entire thread (not to mention in every other thread on the subject I've encountered over the past eight years). That you would now try to pretend the opposite is deplorable. 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Masami Kuramoto Posted March 12, 2012 Share Posted March 12, 2012 Chosen Few wrote: Quite obviously, the Star Trek stuff is entirely irrelevant. In every single case, I was either hired by CBS (the owner of the Star Trek franchise) to do the work, or else I was in full compliance with their stated fan art policies. I've enjoyed a good relationship with CBS for many years. I've never done anything they haven't authorized, and never would. I call shenanigans on this. CBS Paramount have no stated fan art policy, but they do have a long history of sending out cease-and-desist letters to fans. Just to show our readers that I'm not making this up, here's Wikipedia on the subject: The attitude of the Star Trek copyright and trademark holders toward fan works has varied over time. In early 1996, Viacom (which purchased Paramount in 1994) sent cease and desist letters to webmasters of Star Trek fan sites that contained copyrighted film clips, sounds, insignia, or other copyrighted material. In the lead-up to the release of Star Trek: First Contact, then-president of Paramount Digital Entertainment David Wertheimer stated that Viacom was targeting sites that were "selling ads, collecting fees, selling illegal merchandise or posting copyrighted materials." Under threat of legal action, many Trekkies shut down. Jennifer Granick, a San Francisco criminal lawyer who went on to champion cyber rights, felt that the unofficial sites should be covered by the fair use doctrine in U.S. copyright law. In 1998, UCLA associate professor Howard Besser claimed the entertainment industry as a whole was, and cited Viacom's actions toward Star Trek site webmasters as an example of, "exploiting concerns over digitization and attempting to reshape the law by strengthening protection for copyrights holders and weakening public rights to access and use material." Star Trek fan films have, until recently, operated in an informational vacuum, since Paramount has made few official statements regarding their existence. Fan filmmakers have generally kept a low profile, hoping not to draw attention to themselves. I remember that Electric Sheep secured a license agreement to bring official Star Trek content to SL, but anything beyond that is clearly in violation. By your own admission, you are a thief. You know what? I am beginning to appreciate your zero-tolerance policy and consider adopting it. Let's report all the unofficial Star Trek content on the grid, shall we? And let's begin with yours. I can't find your name in the merchant search on the marketplace, but I see there's a shop in your picks: INDIGO: Sci-Fi Geeks Museum & Store Indigo (96.3594,200.047,70.6892) The home of science fiction trivia events, fan-art, and fun! Stop by any time! Now featuring the full size USS Defiant & Klingon Bird of Prey, both fully explorable! Be sure to vist the Sci Fi Supplies store just to the east! USS Defiant & Klingon Bird of Prey are Star Trek spaceships, right? See what a hypocrite you are, Chosen. Let's test your theory right there. I'm going to show you that I don't advocate theft. Link to comment Share on other sites More sharing options...
Chosen Few Posted March 12, 2012 Share Posted March 12, 2012 Masami Kuramoto wrote: I call shenanigans on this. CBS Paramount have no stated fan art policy, but they do have a long history of sending out cease-and-desist letters to fans. So, what you're saying is that when Les Moonves, the president of CBS, showed my work at CES 2007 during his keynote speech, and then said, "In Second Life, fans can mash up a slew of their own Star Trek episodes. What a wonderful way to give back to this fan community," that was really secret code for cease and desist? OK, dude. Whatever you say. As much as I hate to rain on your witch hunt, Masami, I'm going to listen to what CBS told me themselves, rather than your baseless assumptions. Masami Kuramoto wrote: I remember that Electric Sheep secured a license agreement to bring official Star Trek content to SL, but anything beyond that is clearly in violation. By your own admission, you are a thief. And who do you think created that content? I was the art director for the project, Masami. I designed the entire thing. I'm not at liberty to discuss the full details, but I can say this much. The deal was Electric Sheep was granted license for all official Star Trek conent in all virtual worlds, for a period of five years. Unofficial fan-created content was to be fully allowed, as fan participation was considered absolutely vital to the future success of the franchise. Literally every aspect of the project was focused on finding the best ways to allow fan art to thrive, right along side official content. Had Electric Sheep's board not so abrubtly suffered a warp core breach at the end of 2007, "Star Trek: The Virtual Experience" would have been a pretty amazing thing. Masami Kuramoto wrote: You know what? I am beginning to appreciate your zero-tolerance policy and consider adopting it. Let's report all the unofficial Star Trek content on the grid, shall we? And let's begin with yours. Go right ahead. No one in the SL Trek community is doing anything wrong, least of all me. If you want to waste your time, be my guest. Masami Kuramoto wrote: I can't find your name in the merchant search on the marketplace That would be because I don't sell anything in the marketplace. I don't sell off the shelf products at all. I only do project work for clients who can afford me. Masami Kuramoto wrote: but I see there's a shop in your picks: Not that it matters, but that shop hasn't existed in years. I also haven't updated my SL profile in years. Perhaps you should do a little more in-depth research than simply examining profiles. Masami Kuramoto wrote: USS Defiant & Klingon Bird of Prey are Star Trek spaceships, right? Why yes, they are. When I built them, they were the first full size, fully explorable Star Trek ships in SL. They were part of the reason we got the gig for the official content in the first place. Masami Kuramoto wrote: See what a hypocrite you are, Chosen. Let's test your theory right there. I'm going to show you that I don't advocate theft. I'm glad to see you're reversing your position, and that you will no longer be advocating "filling the void" via IP theft. Good for you. It's a bit silly that you're doing it for no other reason that you're foolish enough to think jumping over to my side somehow spites me, but hey, I'll take what I can get. Welcome aboard. As for my own content, as I said, feel free to 'report' whatever you like. With Star Trek in particular, you'll simply be telling CBS what they already know. If wasting your time makes you happy, who am I to argue? 2 Link to comment Share on other sites More sharing options...
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