The legal rights to your 'Second Life' avatar

Despite a YouTube takedown, Experts claim that journalists' use of a private avatar's image in a news context falls under fair use doctrine.

A Second Life land developer has convinced YouTube to pull down an off-color video of her virtual self being harassed during an interview, raising novel questions about the legal rights of virtual-world participants.

Last month, Anshe Chung Studios demanded that YouTube delete the recording, citing the Digital Millenium Copyright Act, which generally requires Web sites to remove material that infringes on copyright laws. The controversy stemmed from video taken during an interview with Anshe Chung , the virtual world's biggest land owner, conducted by CNET News.com in last month.

During the interview--which took place in a digital theater in front of dozens of audience members' avatars--a group intent on sabotaging the event attacked it with 15 minutes of animated penises and photographs of Anshe Chung's real-life owner, Ailin Graef, digitally altered to make her look like she was holding a giant penis.

Afterward, a video of the attack was posted on YouTube. When filed a complaint with the popular video service claiming that Graef's copyrights had been infringed because images of her avatar were used without her permission, YouTube promptly removed the video.

Anshe Chung Studios has also, in a private e-mail, alerted The Sydney Morning Herald, which ran a December 21 story, along with a screenshot, on the attack, that it should take down the photograph because the newspaper, too, was hosting an infringing image.

"I have to point out to you that you, most likely by accident, posted an image that contains artwork copyrighted by my wife Ailin Graef and by Anshe Chung Studios, Ltd. and without obtaining our permission to do so," Guntram Graef wrote to Sydney Morning Herald reporter Stephen Hutcheon in the January 5 e-mail.

"The source of the image, a video posted on YouTube, has already been removed. We can not authorize the use of this image and the replication of the artwork and textures of the Anshe Chung avatar in this context."

While it's true that Second Life users own the content they create, a legal expert and others in the online news business, as well as the virtual world's publisher, Linden Lab, argue that the use of images or video from the "griefing" attack are almost certainly protected by fair use doctrine.

Fair use and creativity
"Copyright law is applicable to works created in Second Life. Copyright law includes fair use and it includes provisions regarding infringement," Linden Lab wrote to CNET News.com in a statement Friday. "Anyone may assert copyright claims, and anyone may assert fair use claims. Linden Lab generally doesn't take a position on disputes to which we are not a party. However, it would be correct to point out that the laws of fair use are consistent with the culture of creativity and collaboration that forms a large part of Second Life."

YouTube did not immediately respond to a request for comment, and Guntram Graef would not respond on the record to a request for comment for this story.

While the video had been removed from YouTube, which is owned by Google, another version of it was currently being hosted on Google's other video service, Google Video.

To Jason Schultz, an attorney with the Electronic Frontier Foundation, the issues surrounding the DMCA complaint are pretty cut and dried.

"Since the general theory (in Second Life) is that you own what you create, she completely owns the copyright in her avatar," said Schultz. "But that said, she absolutely has no rights under fair use to stop people from taking screenshots or screen captures of her avatar in Second Life."

Schultz also drew a comparison between this situation and a real-life hypothetical.

"The analogy I would draw is if there was a car accident in downtown New York," he said, "and the driver happened to be wearing an Armani suit, and there was a photographer who took photos and published them. That photographer couldn't be sued by Armani. News is news. And fair use gives news reporters and others the right to report what they see and hear, even if it includes your copyrighted work."

Of course, fair use doctrine, regardless of how well established it might be, has not been fully tested when it comes to a virtual world like Second Life. But to some observers, the issues surrounding the doctrine are the same, regardless of whether the medium is real life or a digital environment.

Ailin Graef "can control tracts of land in Second Life all she wants," said Xeni Jardin, a co-editor of the tech culture blog Boing Boing, which published a story with an image on the griefing attack last month. "But she can't control the rest of the Internet where I and other journalists like to live and speak freely. And we intend to continue to do that."

Jardin said Boing Boing had received an e-mail last month from Guntram Graef demanding that the site remove the image associated with its story because, Graef contended at the time, the image perpetuated "cyber-rape."

Boing Boing has also been sent a DMCA takedown notice by a man named Michael Crook, who claims his image from a Fox News interview was illegitimately appropriated. Jardin said Boing Boing has no intention of taking down either the Crook image or the Anshe Chung image.

However, Boing Boing and The Sydney Morning Herald both say they are consulting lawyers in this case.

"It's concerning to me that it seems like there's been a rash of incidents like this," Jardin said. "More and more people who want to stop information from flowing are realizing that they can use the DMCA in an abusive way that it wasn't intended for, to stop free speech."

 

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