The electronic mailbag continues to be stuffed to overflowing, but I figured I would respond to this particular one in a post of its own, since Copyright – while it is ubiquitous, touching almost every point of our lives – continues to be poorly understood.
I’m trying to create a small store to sell sculpted Jewellery in Second Life.. but I’m worried about content theft as anyone… and so, I noticed a post from yours on the internet called “Property, Second Life, backups and you” explaining some basic topics about this, .. and I become very interested in the matter, now my straight question… Do you know how can I copyright my sculpties? I have noticed several businesses saying their creations have some sort of “copyright”, I want to copyright several sculpties of my own creation, sculpties that I can use as components to create several products, please I need advice in this matter ^^ Thank you very much.
What is copyright?
Let’s quickly go over the basics of copyright. Copyright is a set of exclusive statutory rights to exercise control over copying, distribution and adaption of a work. A ‘work’ might be music, a book, an image, a sculpture, but not a name, title or slogan (those come under trademark law, and cannot be copyrighted) or ideas/inventions (which are under patent law and likewise cannot be copyrighted). In this particular case, ‘Sculpties’ are digital images (AKA ‘textures’) which are copyrightable works.
In short, the copyright holder (ie: the creator of an original work) has the right to sell, give-away, adapt or distribute the work and its derivations, or to license others to do so. Doing any of these things without the express approval of the copyright holder is an infringement of their intellectual property rights – although there are a couple of exceptions. I’ll get to those in a minute.
After a certain (variable) period of time, copyright expires and the work becomes ‘public domain’, free for anyone to use, copy, modify, distribute or adapt.
How long has copyright been around?
The first real copyright statute was the Statute of Anne in 1710 (“An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned.”). The statute of Anne balanced the needs of creators to have the exclusive right to profit (or to not profit) from their work, against the need of the public to incorporate and adapt all manner of creative works into broader culture and knowledge.
The United States of America’s constitution enshrined that principle for the newly formed Union in 1787 by specifying “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” which underpins all US Copyright and Patent law.
These days, while every nation has subtle differences in copyright laws (scope, duration, exceptions, and so forth), the fundamentals at least remain consistent across almost every jurisdiction worldwide after the establishment of the Berne Convention for the Protection of Literary and Artistic Works.
What are the exceptions to copyright?
The details of exceptions vary between jurisdictions. The two most common exceptions are ‘fair-use’, and ‘first-sale’.
First sale doctrine allows someone who has lawfully purchased a copyrighted work (a book, DVD, or whatever) to sell that item to another person, whether or not the copyright holder approves. That covers garage-sales, second-hand book-stores, and computer/video game trade-ins, as examples.
Fair-use, on the other hand is really complicated. Fair-use may (or may not!) include:
- Non-profit educational purposes (teaching and research)
- Time-shifting (duplication in order to use or access a work at a later time)
- Format-shifting (duplication and transformation in order to use or access a work via a different medium or device)
- Personal use (sometimes including the above, sometimes not. Sometimes including making multiple copies for your own use, and for members of your household for any non-commercial purposes)
- Quoting (the usage of images or snippets under some circumstances in order to refer to aspects of the work)
Some or all of these might be available to you – or they may not, you’d have to consult your jurisdiction’s legislation to be sure.
Additionally, some bodies and organisations have made headway in progressively limiting both first-sale and fair-use rights by lobbying for legislative amendments that allow the concept of ‘sale’ to be partially or wholly eradicated (replacing it instead with a ‘limited license to use’) and/or putting legal or technological barriers in place that require the copyright-holder’s authorisation for each and every usage or access to a work.
How do I get copyright for my work?
Actually, since the Berne Convention, you don’t actually need to under most circumstances. From the moment that you create a copyrightable work, you are automatically the copyright holder, with full statutory rights. Even if you never publish it, or display it. Even if nobody ever sees it, the copyright is yours alone, until copyright expires and it becomes public domain.
You may, if you choose, display a copyright notice like the one I have at the bottom of this page: “© Tateru Nino. All Rights reserved.”
Hardly any jurisdictions require any sort of notice like this anymore. Copyright is generally yours, whether you publish such a notice or not.
There is, however, a circumstance where you have to go a step further.
Filing a copyright lawsuit
For the record, never file an intellectual property lawsuit without a lawyer, and listen (and pay for!) their advice about the advisability of proceeding first. Filing an infringement lawsuit is an ugly and expensive process, and the results are generally not as satisfying as you might wish for.
In most of the cases of copyright infringement that you or I might encounter, it doesn’t legally constitute a crime, which can be prosecuted by the State authorities. It fails the basic legal tests to be classes as theft or stealing, and – as such – is not a criminal act, per the criminal codes (unless it is more extreme than any case you’re likely to be a part of) and instead requires a civil lawsuit for statutory rights infringement, not unlike breach-of-contract or defamation. In the event that an infringement actually has crossed the line into criminal copyright infringement, your first stop should be your National/Federal police service (in the USA, that would be the FBI).
Civil lawsuits aren’t cheap, and while you’re likely to bankrupt an infringer during the legal process, it also means that they are unlikely to have the money to repay any statutory damages, let alone your legal fees, sadly.
Nevertheless, if you are pursuing a copyright infringement lawsuit in the USA (which is, frankly, where it is most likely going to happen if we’re talking about infringement in Second Life) you need to have a copyright registration with the US Copyright Office. If you do not register a work prior to its infringement or within three months of publication, you are not eligible to be granted statutory damages or legal fees by the court, in the event that your lawsuit is successful.
Likewise, you must have a registration certificate from the US Copyright Office if you want to file a lawsuit in US Federal Court, otherwise your suit will be rejected.
While the majority of foreign nationals can do this, not everyone can. If you’re a citizen of Ethiopia, Afghanistan, Eretria, Iran, or Iraq (for example), you cannot register your works with the US Copyright Office at the present time, and therefore cannot file a lawsuit in a US Federal Court to protect them. Also, in some United States minors cannot register copyright (though they can in the majority of states).
Registering as an avatar name
You may use your Second Life avatar name for registering a work with the US Copyright Office (and indeed, most jurisdictions allow something of that sort, as many authors and performers do not operate under their regular legal name – either by choice or because of guild/union requirements), but you must also include your citizenship or domicile, and you should get some legal advice before doing so.
While all of us who use Second Life, or Opensim or any similar sort of general-purpose virtual-environment (or write on blogs!) have certain copyright protections for our work and our creations, the fact is that most of us don’t necessarily have all of the copyright protections that we think we do. Most of us don’t even understand what copyright’s even really about, unfortunately – which is really kind of sad.