Copyright & The Garden

What you really need to be doing is educating the artists and those who come to see the work about the various Creative Commons licenses that are available. There is more than one form of license available.

Encouraging an artist to use one of the "non-commercial" licenses means that they will not be able to sell the work for commercial purposes, which is quite short-sighted. And you should be encouraging people to get permission from artists REGARDLESS of how it is being used, commercial or not.

Goddess knows, I give away a lot of my music, but I also get paid for a lot of it, too. Using the Creative Commons license doesn't mean giving up getting paid for your work, but it does mean taking responsibility to educate those who love your work.

The examples you cite, Anonymous (get a Gmail account for your avatar, fro goodness sake!), are not so "simple" as you want them to be. What you are describing as RL "derivative works" are based upon the use of what are legally "public images".

SL is not a "public" place, in fact. The environment is, in reality and legality, owned by Linden Labs. It follows, therefore, that the content created therein is NOT public and is NOT simply "appropriated" in the way you suggest. Why do you think that the LL spelled out specifically that user-created content is owned by the creators?

If Strawberry agreed that her work could be "photographed" (I hate the use of that word in this context) and re-used, that is HER decision and RIGHT.

Do your homework, and do it outside of SL; you're getting some very bad information if you believe that "Artists have been challenging these laws for years." Go here, http://creativecommons.org/ " and READ what it says about YOUR work, not someone else's work. What rights they may have given are only your concern if you wish to incorporate or re-use THEIR work. Protect YOUR work with the license.

A Creative Commons license and "copyright" are two DIFFERENT things entirely. Copyright is what the creator holds. A "license" is a transfer of right of use, for whatever specifics are spelled out in the license.

The "non-commercial" license actually precludes what you are suggesting ... you must use another license. Yes, the artist holds the copyright. But once you have granted a licensed use the work, you MUST use a different license for a different use of the work. A license is for a specific use of a work. Period. It has little to do with copyright aside from the fact that, without holding the copyright, you generally cannot issue a license for use of a work.

That's the whole point of USING a license and it is why there is so much misinformation about how Creative Commons works and confusion about how to use it. You need to look at the other kinds of license that exist with CC and understand how they are different. One size does NOT fit all circumstances.

BTW, your link is pointing to a UK license; artists in other regions should use a license appropriate the region in which they reside or where they wish to have the work licensed.

Why I am taking the time to be so precise about all of this? Because I have USED CC for a fair bit of my work for some time and I want more people to use CC. But I also want them to understand that they need to take responsibility for their creations. SL is filled with artist/musician wannabes (to say nothing of the Gallery entrepreneurs-wannabes who are causing all of this grief) who are not doing any of their homewoprk about these things and it makes it difficult to get good clear information out there and get Creative Commons in use.

So yeah, I'm a little picky about what gets said about CC...

Ya know, Vint ... I just wrote a very long explanation, with citations, about why you shouldn't be giving out advice to the creatives in Second Life about how they should or should not license their works and guess what?

The hell with it.

I deleted it and wrote the following:

If a person calls themself an artist, then they can pretty much do what they wish with their work. If they don't take their work seriously enough to protect it as needed, if they can't be bothered with spending the time to research what rights they have and finding proper advice and not hearsay or half-baked opinions, then they deserve to be ripped off.

Yep, rip 'em off. The Lindens have washed their hands of the whole affair by citing that the creators own the content, so let them sort it out.

After all, it's Second Life: is there any serious art being created there? (that was sarcastic cynicism, BTW)

Look, unless you are a lawyer, you really ought not get to deep into dispensing advice about licensing ... by all means, do encourage people to go check out the Creative Commons license process, explain that as creators they hold copyright and leave it alone. IF they are going to be artists, they need to learn these things themselves and not have their hands held by someone who,though with the best of intentions, isn't giving all the details.

I'm NOT a lawyer, but I have, literally, been on both sides of this issue, so it's first-hand knowledge and experience and at least it is an informed opinion. That's all I am going to say on this matter ... comment as you will, but you run the risk of causing more harm than good. I'm done with this discussion and will see you inworld to play on the 13th ... and as a matter of fact, my performances are covered by a Creative Commons license. :-)

Otenth,

Thanks for bringing that up ... there are also galleries in SL selling,yes SELLING, images from the da Vinci notebooks, images from the woodcuts of Hokusai and Hiroshiga, and probably more that I haven't seen.

But then, judging from the comments here, there aren't many people who are terribly concerned about these issues ... outside of the two or three of us!

RightAsRain,

You are absolutely correct in your articulation of the use of the CC license you describe. Because there is so much confusion about CC in general, and the application of each license type in particular, it is always best to treat each and every instance of secondary use of your work on an individual basis, i.e., issue a specific license for each specific usage. Open Source is not always "Open Source" either, so don't get confused by that (you can have conflicting licenses there) ... unfortunately, there doesn't really seem to be a single "Open Source" definition (which is why I never refer to my works as being open sourced) The CC license can be as inclusive or exclusive as you wish to make it and again, you may issue multiple licenses for a single work.

Technically, people can only do what they have been specifically granted to do in SL ... you, the creator, have complete ownership over what you create. HOWEVER ...

...all of that really only applies if YOU have created everything in your piece. If you use anything created by anyone else, you really need to have permission to do that (note that when you look at an object's properties it will list both an Owner and a Creator ... that's what I'm referring to here...).

Sorry if it seems like I'm hammering away at it, but as Otenth pointed out, even in our own backyard we have made some grievous oversights that should be corrected.

AldoManutio, I take the full blame for putting that triptych up there without 'painted by Mr. Bosch - Image in public domain for a few decades already' in a notion. I just figured he would not care that much about attribution, being dead an all that. I now see he'll haunt me, even from his grave. *goes to fix that so she can sleep safely at night*

The Bosch attribution is part of the bizarre world of international copyright, and I don't know what law should apply to the photograph (which is surely *NOT* 75 years old). But the moral point I was making is that the original work of art is not just floating in the internet free to use, but is in a museum and appears to be owned by the Spanish "Patrimonio Nacional". Someone made a photograph of the artwork, and that photographer is not named. (The documentary nature of the photograph is one of the elements complicating any question of copyright, as is whether the photographer would retain copyright or the museum, and whether US or UK law would apply.)

The museum put a digital image of the artwork on their website, but that doesn't mean the digital image is free to copy (it may be, but putting it on the website does not in itself make it so--in fact, there is a copyright notice at the bottom of every page on the website).

Erhum ... Otenth, Grace, and Vint ...

(now you've gone and done it: you've invoked the wrath of my day-job avatar!!)

As I have suggested emphatically and repeatedly above, this is a LEGAL issue and, as such, should not be an area where you are providing advice unless you are qualified to be doing so. Having said that ...

Do NOT use Wikipedia as the "final authority" for this topic (copyright). If you want good clear concise information on copyright, then I suggest (for the US, anyway ... and Peter will respond to you if you ask him nicely) going here and reading what Peter Hirtle has to say:

http://www.copyright.cornell.edu/public_domain/

'mkay? This is about as clear, and authoritative, a overview as you are going to get of US copyright. If you want information, ask a librarian or archivist. We ARE the Information Professionals, after all, and have been for over 5,000 years. And, of course, consult with legal counsel for legal advice.

Vint, I know you are being jocular about Bosch, but it isn't about Bosch ... it's about the Prado. The Prado OWNS that painting now and as such, they hold the copyright. And, as Otenth has sussed, they probably own the copyright on the unattributed photo that was taken to be used in a textbook or to document their question, especially since they have taken the precaution to copyright every page of their website. THAT photo was most likely done by a staff member (work for hire,no copyright to the photographer) or a photographer hired to do the job. Either scenario, they own the painting, and as such, OWN THE RIGHTS TO HOW THAT IMAGE OF THE PAINTING GETS USED.

IF, and it's a an assumption of trying to piece together the events that led to the image of Bosch's painting being in SL, the image cane from a textbook or postcard, there was almost certainly an agreement of use of the image to be published on that postcard or book. This agreement constitutes a license.

When you get a license like that, you are restricted to only using it for the purposes spelled out in the license. This isn't supposition on my part; it's hard-earned first-hand knowledge. I still have the photos to prove it and, in my day job, I deal with this issue regularly.

Here's what hasn't been addressed:

1. Who provided the Bosch image?
2. From what source was THIS version of the image taken?
3. Did the person who provided the source of the image HAVE PERMISSION to use that image in this manner (rights of reproduction in electronic or digital format are our main concern here)?
4. What restrictions of use are spelled out in the source of this image?

I ask because here's what the Prado has to say about their website, just to give you an idea of what this is all about:

http://www.museodelprado.es/en/pie/aviso-legal/

"Intellectual property

All the content of the web portal, texts, graphics, images, their design and the intellectual property rights that may correspond to this content as well as any brands, commercial names or any other logo or sign are the property of the Museo Nacional del Prado or of their legitimate owners, and all related user rights are reserved.

It is not permitted to reproduce partly or completely the contents of the website in any form or medium (mechanical, electronic, reprographic or any other type). Also forbidden is any type of promotion, public communication or distribution of these contents without the prior, written permission of the MNP or the legitimate owners of the content in question.

As set out in articles 8 and 32.1, second paragraph, of the Law of Intellectual Property, the reproduction, distribution and public communication of part or all of the content of this web portal for commercial ends is strictly forbidden, on any support and using any technical means, without the express permission of the Museo Nacional del Prado."

Do you see the nuanced layers of ownership there, in that first paragraph? And likewise, at the end of the second paragraph? "Or legitimate owners of the content in question" ... that's legalese for covering your arse. Likewise, the little hand grenade at the end of the last paragraph: "...without express permission ... ".

Goddess! Now I need some caffeine ...

Thank you for adding the attribution to the web page.

And I'm somewhat sorry to have ever brought up legal issues, since it seems to have obscured my central point: You have criticized a SL photographer who created images in what you yourself refer to as a public space because "This has upset the artists which work was on sale: they were never asked for permission for the sales of their works. Neither were they given proper attribution for the time and effort they put into the builds." Yet you ignored the museum and photographer who made possible your use of a classic piece of art.

Saying that wikipedia made the photo available is pretty flimsy: where *did* that photo come from? Pretty skimpy documentation on the wiki page. The artwork was given to the Prado in 1939. I find it unlikely that a high-quality color photo was created without their participation, although I suppose a museum visitor could have taken a photo and released it for public use.

And as for "originality": what about those Escher builds in the garden? Don't get me wrong, I think the artists did brilliant work. Just don't get all high and mighty about intellectual property rights unless you're consistent.

Otenth,

Don't think of it so much as having obscured your central point as having provided an open dialog about the lack of true "public spaces" in SL.

BTW, you are dead-on correct about the color photo aspect of this: in 1939, color photography was not of the sophistacted level that this image shows. Further, only a few institutions were using this high level of color work until after WWII ... even more evidence that the photo in question is likely to STILL be under the 70 year rule being bandied about here. My bet is that the photo was a work for hire from the late 50s-early 60's that was used in a textbook and someone carefully scanned it and turned it loose on the web. But that's just supposition on my part. No one seems to be able to provide a clear provenance for the photo, so I certainly wouldn't want to use it for anythin with my name on it.

But about my public space comment: where is there any truly "public space" in SL? The entire environment belongs to Linden Labs ... so that effectively makes it "private". The Lindens have said that we all own our creations ... that's private.

The only SIM I know of that has made an effort to be truly "public" is Lummerland and they made a concerted effort to emphasize that objects that were there were all created under Creative Commons ... that would go a long ways towards making it "public" in my eyes. (That's also why I have little sympathy for the SL "photographer" who malappropriated the images ... ignorance is still no excuse ... )

"Originality", sadly, is an equally rare commodity in SL. I've not looked at the works in question, but it wouldn't surprise me if they were openly derivative of Escher ...

Great. Let's 'fight' over details. (The Ley de Propiedad Intelectual (LPI 1996) [7] (1987) provides 25 years of copyright to "mere photographies" or similar reproductions, beginning on the 1st January of the following year of the creation.) 2008-25=1983 Any chance this scan comes from a photograph that was published in a book before 1983? Yes! Any chance that this photograph comes from an USA book that was published after 1983, but the photograph was taken before 1983? Hmm. Yes too. I originate from 1984 and I have (almost) nothing but colour photographs from my own persona. Furthermore, concerning the rights of the museum on the image of the painting: one could also plea that under USA copyright law (and dozen of others that recognize 'fair use'): It is believed that the use of low-resolution images of works of art

1. for critical commentary on
1. the work in question,
2. the artistic genre or technique of the work of art or
3. the school to which the artist belongs
2. qualifies as fair use under United States copyright law.

.

As you will notice when you visit Wizard Gynoid's 'MC Escher's Stars in Second Life', the title of the build contains the attribution. I dare to say this is not an mere replica, but an artistic interpretation where a lot of work was involved in personalising it: the original sketch is 2D black and white, the 3D build is - well - 3D, with coloured textures, an elaborate fly, different chameleons, etc. Of course, a judge could rule otherwise. ;)

Gracie, yes, many different versions out there. Because it depends on the country your in, the precedents or the perspective of the judge (if something is taken to trial), the original medium, the medium of reproduction, the use of the reproduction (commercial, non-commercial, education), ... . Add to that that the idea of a 'virtual world' is new to laws - where some countries did not even incorporate the idea of internet/virtual data as a medium in their laws yet. You get a big mixed up ball of yarn that can be unravelled in very different ways - if it can be unravelled at all! ;)

Vint ... you don't get it: IT'S ALL DETAILS! Why do you think lawyers get involved in this crap? (And no, Gracie, I am, most emphatically NOT a lawyer ... I just play guitar, remember?).

If the photo came out of a book, the publisher is the copyright holder for the photo ...and chances are VERY high that they themselves only were "licensed" to use it for that and that alone. Are you applying Spanish law or US law? What is the jurisdiction? YOu can't just pick and choose when it comes to that ... well, you can, but it will catch up with you. By the way, publishers can't just take a photo that they have used once before and simply "re-use" for a later edition of the book, so the photo in question would be contemporary with the textbook, so now the question becomes WHAT BOOK WAS USED and when was it published?

Taking a digital copy of that photo and using it in the manner of this installation is not "fair use" under the most lenient of definitiions (where is the publication of the critical commentary? where is the "school" for its' educational usage?). You're only clouding the issue by bringing in "fair use" ... as for unraveling the ball, you just can't be lazy and take the Wikipedia way out ... andas a matter of fact, the "virtual world" is not so wide-open as you suggest, Vint. Look at case law for digital texts and you will see that the big publishers have been patrolling the use of electronic and digital reproduction of materila for the past 30 years. What we're seeing is the backlash of creators who have been victimized by restrictive agreements and it is bringing things more out in the open.

Sorry if you that seems like a cheap shot, but I have to deal with this in the real world, where Japanese scholars who should know better are coming in to our (US) institution and taking digital photos of artifacts and documents, allegedly strictly "for personal use" and proceeding to use them for their publications and posting them to their websites without attribution. And there's nothing I cna do except have the Director write a very politely-worded but obvious note explaining that they need to at least give credit to the institution they have ripped off ...

Gracie, about the posters: the big musuems get paid big bucks to license the use of the images to poster makers. It is a BIG business for the museums. As for the use of images inteaching art history classes (I'm neck-deep in a project to digitize the entire slide collection of our Art Dept even now, so this is painfully fresh), again ... museums charge big bucks to allow slides to be made of their art works ... they license their use. We cannnot digitize the commercially prepared slides because it would violate both the license and the copyright. Ditto the creation of digital databases/collections of images for teaching. ArtSource is a very pricey product for this reason (licensing of use). If the profs shoot thier own stuff, then no worries (we hold quite a bit of that kind of material)

Being an artist and being creative are fine, but if you care about enjoying the fruits of your creative labors in this lifetime, you need to educate yourself on the rights that you have and how best to protect them and your work. As Anton (Braendle) and I have both repeatedly said, there is too much rank amateurism in SL when it comes to making art. Too many of the self-proclaimed "artists" are not taking the time to understand that there is a lot more to it than what they get away with in SL (One of the reasons that Anton was so vehement about that whole photography "debate" recently).

As for derivative works, ala Rauschenberg, it's controversial at best. Anton did some RL photos of a Serra sculpture. Nothing that could explicitly be identified as Serra's "Vortex", but if you knew the piece, you'd figure it out. To play it safe, he contacted Serra's agents and told them what he did and how he wanted to use the portfolio of work. They gave him Serra's blessings to use the images as he saw fit.

Their reasoning was as follows ... Anton was not claiming that the sculpture was his creation, only that the photographic INTERPRETATION of Serra's sculpture was his. His use of the images would not have a negative impact on the commercial value of either the sculpture or Serra's reputation. Finally, because the sculpture was in a publically-open space (in front of the Modern in Fort Worth, TX) it was, quite literally, in the public domain (it had been commissioned as a public sculpture). So Anton holds the copyright on those photos which are, effectively, derivative works of Serra's Vortex .

The less manipulative forms of derivative art are indeed problematic ... I thinkit's more of a problem if you are being negative in your portrayal of the sourcework as it opens up the possibility that you could be accused of deliberately diminishing your source/artist's financial potential ... and that way law suits lie. Same thing with music: Wierd Al is constantly doing satires ... he always asks first and is rarely denied.

ok, time to speak: a friend has found this blog today and has sent me the link. i would have appreciated having heard from it earlier, as i am part of the topic here with my photography at * p_OO_f * gallery http://slurl.com/secondlife/Envy/28/221/22 but as the whole discussion started, it moves on in an inappropriate way, and in parts unrealistical, uninformed, expressing opinions rather than knowledge.

firstly i would wish to say that vint isn´t an official in charge person of the rezzable/NPIRL at all, as confirmed by rezzable authoroties (like by miki gymnast, who indeed is). still she behaves like she had anything to say, also did towards me, up til threatening. but perhaps this blog is her way out of that: nothing to say, no true research done, still expressing opinions about not well researched or irrelevant legal situations.

secondly izikael novi, who started the whole story by accusing me of copying her art, is in fact publishing black swan pictures on her flickr site without naming light waves or rezzable http://www.flickr.com/photos/26379671@N02/ (light waves btw hasnt any problem with me taking and selling pictures, sadly black swan is owned by rezzable, and he only gets commission on sales of his sculptures. is that ethical? well, a type of agreement for sure: build us a sim for free, and wull have you participate on possible profit....).

izikael has published private chat conversations, and only bits of them, which seemed to serve her purpose. she left the resolutions out complety, also those bits where is no resolution. that behaviour is illegal in several senses: first she acts against linden TOS by publishing private IM, secondly she acts against TOS by publishing private IMs others had. thirdly the whole rezzable group, or ego essex, acted against TOS by copying private IM into group chat to read for their whole group. so dear rezzables, please watch what you and your members do :) publishing and spreading IMs that can be cut out and manipulated can cause all of you to get bannend from SL :)

talkign about photography, it is not against the TOS, unless it is privately closed sims or private people. you can discuss it as much as you like, sim-millionaires like anshe chung have tried it before you in vain.

i guess we need to look at two sides here: one is fact, one is wish to be. there is no such thing as content protection on SL, it all belongs to linden labs, and we rent it. the rest is consent and respect.

what i was glad to learn about is the pride and emotions of people take in their building. and learning that i owe more respect, and am now really glad to name all artists my photography is based on, if recognizable. funnily most of the 3D artists, and even some 2D artists appreciate it (notecard at my gallery). and those who don´t, make the drama we are in.

those who like their art being photographed are aware that any promotion is good promotion. and also that 2D is not replacing 3D. light waves loves his tied angel fly around the web and SL on pictures, because it brings attention to his 3D art. what rezzable does here is not protecting the artist, but their own income, because they sell each statue for L$ 35,000. how much does the initial artist light waves get from that in comission? i don´t know...

the misunderstanding with izikael novi was simple, and simple to solve - from my view: i took pictures a 3D environment at NPIRL, called underworld, for what it still is to me. izikael said - as she sells single textures there - i was copying pictures. that wasnt my intention, i wanted to catch the overall athmosphere. when she saw my pictures the gallery and was in pain about them, i took them off. easy. but that wasnt enough, as it seems.

gary kohime even blamed me for offering a totally manipulated picture for sale of a sculpture i BOUGHT from him. so where do we start, and where do we stop with pride? when i buy a piece, it is mine and i do with it what i want. or not?

i am working really well with many of the high class 3D artists in SL. i take pictures, as they are, or change them in PS. i also get my good arts customers in, who have several sims and can take many prims, and help 3D artists to sell their pieces. i am not living in the illusion that a picture can replace the 3D piece. but i am living in the belief that 3D in RL and SL are a different arts form than 2D. and both have the right to be there. the eiffel tower is an amazing built, but not all can have it in their living room. and to be honest with you, i will not see it any different in SL. apart from showing and naming more appreciation.

for now the legale situation as such is that anybody can drool about it as much as they like. lawyers from all nations can discuss, or those who might have read an article and sell it as their knowledge. SL belongs to linden. all we can do is discuss constructively and share respect. and not trying to harm somebody´s good reputation with in fact illegal methods. especially not when "unclean" oneselves. and especially not against TOS. and we shall never underestimate people´s ego.

i have learned a lot the past week. firstly that i owe more appreciation and naming to my fellow artists, 3D or 2D (which i thought showing them in my articles and sales for them - but yet perhaps not obvious to some...). and that i do now in every picture and notecard.

secondly that SL is really small, and that an inmature behaviour of some can cause real harm, unrealistic discussions, up to shrink-ready behaviours.

my idea for all of us for a next situation like this would be: ask first before you knock down. is there perhaps a misunderstanding? is a drama needed, or can it be solved in an easy way?

RL laws do not apply in SL, but universal laws indeed do - that is my belief. and i am grateful for what i had the chance to learn. i hope some others do so too :)

rightasrain, thank your for your constructive explanation. miki was the same. i very much appreciate. experiencing that (and not assuming first i was a bad criminal) after having made a mistake would have solved issues very quickly, from my point of view. and of course i will respect your rules at rezzables, and mention artists. what i really despise is the drama poured over me, with no thought about consequences. even bugging my sim owner and friend, and trying to hold her responsable for my acts, placing 18 ARs against me, in my view is pure hysteria. and that makes me hit back hard, if needed. i will simply not accept having my reputation, good will and integrity doubted and harmed that way.
as for the copyright discussion this could go on forever.... very interesting what you write aldo!

HOLYSMOKE!!!!!!! A girl takes a holiday and comes back to a storm that has already passed... Great discussion. And you all weathered it so friendly-like. Heee.

What do you think of NPIRL's request to LL to add a CC tab in the object editor, as well as a Creative Commons option in the right click pie menu, so that everyone can see, with a simple right mouse click, what the rights are on an object?

http://npirl.blogspot.com/2008/06/dear-m-linden-please-help-content.html

Hmmm?
Bett

Welcome back, Bettina.

While I appreciated the discussion over on the NPIRL blog, it would appear that one of the biggest hurdles to ANY solution to this conundrum inside a riddle inside a mystery is USER EDUCATION.

Linden Labs has repeatedly been shown to be all but totally ineffective in helping to enforce the creator's rights. And if the artists aren't willing to spend the time to learn their rights and to take action to protect those rights as best as they are able, then I, for one, can feel little sympathy for them. The serious artists will find the solutions and take steps to enact them.

If nothing else, after this little kerfluffle there are now more folks who know something about Creative Commons and other alternatives to IP rights management. That can only be seen as a good thing.