Last week vendors using the online marketplace for the popular MMO Second Life were treated to a number of takedown notices from Marvel Comics for offering avatars for sale that resembled characters from Marvel Comics. Second Life uses a web-based system which they own and operate to enable users of their service to purchase virtual goods, buildings, room furnishings and custom avatars for use inside the virtual environment. In all, between six and twelve vendors were affected (the exact number of vendors or items involved isn’t known and was not announced). Not all items by all vendors were identified for removal.
This is not the first time Second Life has been raided by entertainment companies seeking to protect their trademarks.
- In April of 2009, the estate of Frank Herbert, author of the Dune series of science fiction novels ordered that all Dune-related materials be removed from Second Life over a two day period. The Dune roleplayers simply renamed everything and kept going. Much the same thing happened with the estate of J.K. Rowling regarding Harry Potter themed sims in 2008 – the sims with offending names were removed.
- On Thanksgiving Day of 2010, Universal City Studios ordered Linden Research, creators and operators of the popular online community, to remove any and all to remove any and all intellectual content relating to ‘Battlestar Galactica’ from its grid. Second Life players complied (having been given little choice) – regions and products named for or presenting items from Battlestar Galactica were removed.
- On August 19, 2011, in a sobering development for fan creators, Linden Lab removed Power Rangers merchandise from the Angel Grove Mall in Second Life and from the Marketplace Second Life website.
A Patchwork Response
In each case, while actions were taken by Linden Lab in response to DMCA takedown requests by the various holders of the intellectual property rights involved, in no case was the removal of materials or content from Second Life particularly comprehensive or thorough. To understand what happened and why, one needs to understand what the DMCA is and how it works. Here are the mechanics in simple terms:
- An item is identified that potentially violates someone’s copyright. (In this case it was copyrighted characters. One cannot copyright clothing, and though what was removed was mostly costumes, it was also technically just digital assets – the appearance of clothing. And the appearance of an illustrated character can be copyrighted.)
- The owner of the copyright or their representative specifically identifies where the infringing material can be found. In this case, it was a web site. The individual URL’s were reported to Linden Lab.
- By law, Linden Lab is then required to take down the offending material, whether or not the copyright claim is valid. The reason for this is that the infringement cannot simply remain in place until ownership has been proven in a court of law, because this would destroy the timeliness of the remedy and render nonexistent any protections.
After that, surprisingly, usually nothing happens. And the reason is that the complaint has been made regarding the content of the Second Life Marketplace web site, not the actual virtual products themselves. Legal aides rarely have the horsepower or graphics support in their office machines to be able to enter an online service such as Second Life with its graphics intensive hardware requirements to be able to go into the virtual world and look around for more things to ticket for removal. Of course, our examples above are noteworthy because Universal, Saban, the Frank Herbert estate and the J.K. Rowling estate all went in-world and did some pretty massive sweeps, but for every one of these major events, there are a dozen or so smaller ones that nobody ever hears about – because they’re picking out individual items instead of whole virtual islands to clean up.
If you are a creator of virtual goods in online services, you needn’t panic. If you are infringing and you know it, you might want to rethink your business strategy. If you believe that what you are making and giving away is Fair Use, you’re most likely right – but be prepared for a takedown notice anyway. These companies don’t read the fine print, and are big enough not to care. On the other hand, the ramifications of a takedown notice are pretty simple: the materials in question get taken down, and pretty much that’s all that happens to you. You’re unlikely to get sued, or fined, or anything else. The DMCA takedown is the end of the action.
Not all companies are as litigiously minded as Marvel Comics. DC Comics, for example, is owned by Time Warner, who in turn has a relatively lax attitude about fan recreations of their characters and can’t be bothered with the nickel-and-dime operations inside a virtual world. A week’s pay for an in-house legal assistant usually exceeds the total profits of an entire year’s work for a virtual business in an MMO such as Second Life, so unless they see something sticking up outside on the internet where they can see it, they generally won’t expend the energy.
Why are they picking on the little guys? Mostly it’s because they have to. This seems counter-intuitive, but it’s the way trademark and copyright law both work. If you own a trademark or copyright, and you see violations of your intellectual property rights and you do nothing about it, you stand to lose the right to defend your own trademarks or copyrights later on when it really counts. Xerox Corporation failed to do this, and eventually the word ‘xerox’ became a generic synonym for ‘photocopy’. What most think Marvel was doing was going after trademark and copyright violators. That’s only half right. They were also protecting their ability to do so later on when it really counts, and they have to make a good faith effort so that they can demonstrate to the courts when the time comes that they actually did. It’s credibility in the bank.
The bottom line is that if you’re a creator of virtual goods, chances are good you’re not making enough money doing this to really affect a trademark or copyright holder one way or the other. If you’re caught using somebody else’s stuff and distributing it, be prepared for its removal. On the other hand, getting flattened by the boot of vengeful Galactus is a pretty small probability.
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