Ekphrasis Extra: Destination… Copyright Infringement


Works by Klimt, Hopper, and Pollock are amongst the many popular modern artists being flogged.

Since my early days in SL, I’ve often wondered how businesses (‘galleries’) got away with selling what I call ‘rezzed repros’ – reproductions of real life art work for which they did not have rights. The other night, my annoyance with this came to a head when I discovered such a place listed in the Second Life Destination Guide.

I’ve written a rather detailed blog post about it all, some of which is excerpted here. As the original post is certainly laden with both my own opinion and particulars about the individuals involved, I didn’t think it fair to write it under the aegis of Prim Perfect. However, our editor thought it might be a subject of interest to our readers, as creative content, DMCA, and copyright law are all part of this issue, and are murky areas for many of us.

Why is selling rezzed repros so wrong? Surely Second Life should be a place where you can hang the painting of your dreams on your living room wall!

Well, up to a point.

No one is going to stop you from uploading your favourite Picasso or Klimt and placing it on a prim (or a nice frame made by your favourite designer) in your virtual home. But if you were to try and sell these in your shop, you would not only be in violation of Linden Labs Terms of Service – but it would be illegal. Business owners who do this knowingly (and many do it in ignorance) are exploiting a very grey area of copyright law: the use of reproductions of original material.

The first part is easy: copyright law varies from country to country, but in general (in Europe and North America)if a work is older than ‘the author’s date of death plus 70 years’, it is considered in the Public Domain. If not, it is subject to copyright. For example, Rothko died in 1970, Picasso in 1973; elementary math tells us that these artists have not been dead 70 years, so their works are still clearly copyrightable.

Picasso is one of the many 'not dead very long' artists being sold inworld. Also, the cut-in-half 'Las Meninas' as a carpet made me cringe.

The next, more puzzling question is whether a photograph that is a faithful representation of an original work that is OUT of copyright (in the public domain), falls under the same copyright as the original, or whether it is considered a new work of art. It is a conundrum that is at the heart of wikimedia and creative commons debates. Some museums allow their artworks to be photographed (the British Museum and the V&A immediately come to mind), at which point the photo is yours to use (and sell) to your heart’s content. Most of these, however, are little more than poorly lit snapshots. Other museums do not allow photography, and rely on reproduction fees for income (The National Gallery London, the Tate, and the Getty come to mind). And the debate here is, how can they charge for a work that is out of copyright?

What you pay is not for copyright, but rather a licensing fee to use their own reproduction of the image. By disallowing photography in the museum, they ensure that the only proper images come from them. But in the age of scanners and digital photographs, beautiful DYI repros can easily be made and put on the web. And personally, I’m a fan – I use them for educational purposes. Which falls under Fair Use.

Waterhouse may be long dead, but Tate Britain still owns the reproduction rights to many of the works seen for sale here.

Let’s talk about that term for just a second – and I must make a disclaimer, I am no copyright expert. I’m simply someone who has to deal with this professionally on a regular basis. According to this rather good explanation of the Digital Millenium Copyright Act (DMCA, something many content creators are familiar with, and if you aren’t, you NEED to be):

The Fair Use provision of the Copyright Act basically allows reproduction and other uses of copyrighted works under certain conditions for purposes such as criticism, comment, news reporting, teaching, scholarship or research.

A GOOD example of a place in SL which is showing – and selling – virtual work lawfully is the Dresden Gallery, a wonderful virtual recreation of the actual Dresden Gallery made in partnership with the Dresden University of Technology. The works on display are Old Masters, and as well from their own collection. Some are available for purchase, which is really a donation to help keep the project going – not a private money-making scheme. In fact, I cannot even display the lovely images of the Dresden I asked PJ Trenton to shoot for me, as they require permission of the gallery due to copyright. The Dresden informs all visitors via notecard:

© 2009: The idea, works of art, shop articles and buildings as well as their virtual reproductions are the property of the Staatliche Kunstsammlungen Dresden and may not be copied, duplicated or otherwise used, in whole or in part, in real life or in the virtual world without permission. www.skd-dresden.de 

Rezzing a reproduction and making a profit from it without reproduction rights is clearly against the Terms of Service. Section 4.4 states:

Intellectual property infringement on the Service is a violation of this Terms of Service, and you agree not to engage in such infringement.

Featuring such a place in the SL Destination Guide is shocking, infuriating, and disappointing – particularly in light of all the other wonderful virtual art out there!

As DCMA complaints need to be filed by the copyright owner, it is unlikely anything will be done from that side (although I do personally know several curators who would be interested to know that paintings in their collection are being exploited). So what can we do? Educate people, as it may be the case that many violations are made innocently. And for those who persist? How about if we stop giving them our lindens. As I said above, if you MUST have that Raphael gracing your virtual palazzo, why not just pay $10L and do it yourself, rather than pay $150L to someone selling it illegally?

Here is another suggestion. Why not buy some original art made by your fellow community members? There are so many wonderful virtual artists in SL, why not become a virtual art collector? There is something for every taste:

We’ve all seen rather dubious practices of all kinds, when it comes to intellectual property. It is disappointing, however, when Linden Labs so easily lets something like this fall through the cracks. Here’s hoping the situation will be rectified, and not repeated.

***

Special thanks to PJ Trenton for research and image assistance.

6 comments

  1. I never understood the selling of classical and contemporary master paintings in SL. Uploading a texture surely is not beyond most people’s ability. The galleries that consist of nothing more than pics-on-a-prim and sell them (and as you say, often truncating or butchering them in the process) are doing a disservice not only to the artists who’s work they pimp but to art itself.

  2. Thank you for taking the time to write this and put it in context within SL. This subject gets me SO riled up. Public (on the internet) does NOT mean Public Domain. Luckily image match search engines can help monitor flagrant violations but i agree in virtual environments – why not seek out the amazing creativity of those actually working within the medium?

  3. I’m waiting for someone to point out that many of the new avatars introduced by LL are also copyright infringement. Specifically, look at those cars!

  4. Thanks everyone. As a small update, that gallery seems to have been quietly taken down from the Destination Guide. I’m glad Linden Labs made the right decision there, and they’ll hopefully be more careful in the future.

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