Alas, because I have way too much to get done, this has to be just a short post. But this recent post from New World Notes caught my eye -- Xstreet, which is a sort of Second Life virtual eBay, has issued some very interesting guidelines (see here, here) about the rules of Second Life commerce, at least such commerce as is listed on Xstreet.
Here is an excerpt from the branding guidelines for Xstreet listings:
* contains or uses a brand name or logo;
* replicates or closely imitates the appearance of a real-world physical product of a brand owner (for example, items that replicate the appearance of brands of cars, jewelry, or shoes that are available in the real world);
* replicates or closely imitates the appearance of a celebrity, famous person, or fictional character from a copyrighted work (for example, avatars that replicate the appearance of movie stars or characters from a book, film, television program, or game); or
* replicates or uses an artistic or creative work that is the subject of copyright (for example, virtual artwork that replicates artwork available in the real world or a sound clip that includes part of a song recording).
So, e.g., as Wagner James Au points out, the Barack Obama and Angelina Jolie avatars currently listed are a no go under the new policy.
Since I co-wrote an article about the potential for trademark infringement in virtual worlds (and Second Life sneaker sales in particular) I can't say I'm too surprised by this policy. Yet, at the same time, it seems to me that these rules reflect a fairly aggressive approach to IP policy.
The law of brands is primarily about protecting consumers from confusion about the source of the goods they are purchasing. While I think that most consumer protection policies can and should map onto Second Life generally, I'm dubious that anyone would be confused into thinking that a Barack Obama avatar was an avatar endorsed by the president. And I can easily envision situations where First Amendment rights, as well as Second Life community norms, would come into conflict with these guidelines.
At the same time, I understand where Linden and Xstreet are coming from. Given the uncertainty about many areas of IP law, most service providers ending up setting similar policies that prohibit certain kinds of user-generated content. To the extent the new guidelines mirror these pro-IP norms, I suppose Second Life is growing up... and becoming less interesting.
Update: Like I said, this is a short post, but in response to the first comment, I guess I should clarify that the Obama and Jolie avatars are potentially brands, but are generally protected instead (in the United States) by a body of state law called the "right of publicity" that has its roots in protections for personal privacy. (I taught a law school seminar about it not too long ago.) As the first commenter notes, the boundaries of the right of publicity can come into contact with First Amendment protections, meaning that the Obama avatar should raise stronger concerns about rights to free speech.
My point, though, is that the Linden/Xstreet policy doesn't have this kind of nuance, and seems to conflate the right of publicity (and copyright) with brand protection. Confusing these is common enough on the street, but the end result of making that confusion into a listing policy for SL is an expansion of existing IP rights in the virtual world.
There is much more to be said about this, but I've just got too much to get done at the moment!:-\