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Pop Quiz: Why will the legal relationship between the individual and their representation in a virtual environment change?

a) Though the combined forces of player pressure, academics writing detailed papers and bloggers blogging?
or
b) Though A list stars and their A list entertainment lawyers trying to secure more control and more moolah?

I’m going with (b).

And on this theme MSNBC has a recent piece on stars seeking more control over of their digital doppelgangers.

This is not simply an issue of extracting cash from the new medium. It’s also one of control.

When an actor signs to do a film they get to see the script and can always refuse to perform acts that they feel don’t fit their profile. But as soon as they are digitised it’s a different game. LTORs Gollum is fine example of what can be done with CG and a big budget – but from the stars point of view, at least that’s in the hands of the director, with a video game the stars are in your hands – and that’s something they really might not want given some people's imagination.

Of course this does not apply to me and my avatar because:

(i) It does not look like me
(ii) I’m not famous

Er, but hold on:

(i’) With VW’s like 2L and SWG my avatar could look like me if I chose, more to the point it could look like you

(ii’) I am famous ! You’ve heard of me, your reading my stuff right now, look look there’s my name – see fame. Or take the case TNs very own Julian - the reputation that he holds in a VW is directly related his profession as a broker – and that’s the kind of reputation courts respect

So does this trend start to add weight to the claims made by us Z-listers in respect of control of our digital selves?

Ren

Comments

[MM]

1.

I don't know about 'avatar rights.' I think most of these discussions are really property issues. But in the case of a single-player video game, that's a little different. If the actors want the money, they are going to have to give up control of the player character.

I suppose that that the actors should have a say in what games their images are licensed to. But I hope that we don't have a situation where a great game doesn't get made because the actor they wanted to be the PC won't sign on.

Furthermore, I don't think that anyone outside of the noisemakers are going to hold actors responsible for crude screenshots made by kids.

[greglas]

2.

What makes you think you don't have control over your digital self, Ren?

Tom Loftus is writing some fun stuff on games.

This on Half-Life: http://msnbc.msn.com/id/3078409/

This on emotions in games (featuring Stern and Mateas from GTA): http://www.msnbc.msn.com/id/4038606/

This on religion in games: http://msnbc.msn.com/id/3078392/ (Which I previously called "fluffy and rambling" -- sorry, Tom, I thought no one was reading and I do like fluffy and rambling things. Witness the stuff I post here.)

More of his writings here: http://msnbc.msn.com/id/3033082/

[Cory Ondrejka]

3.

MM> Furthermore, I don't think that anyone outside of the noisemakers are going to hold actors responsible for crude screenshots made by kids.

Truly customizable avatars, like Second Life's and SWG's, enable users to make avatars that look remarkably like real people, including real celebrities. Depending upon the use of the avatars, I would think that parody laws might apply (although IANAL). Alternately, would it go the path of photography and require model release forms?

[Cory Ondrejka]

4.

Ren> (i’) With VW’s like 2L and SWG my avatar could look like me if I chose

Ren, I didn't think that you looked like a Mon Calamari :-)

In all seriousness, great post. We've created some avatars that match real people during press tours and this will only become more of an issue as more products copy SL's morph and texture blending tech.

[greglas]

5.

Nah, Ren looks more like a Bothan... :-)

See http://www.bowbrick.com/code/

Who is this Lessig guy you're hanging with, Ren?

[Ren]

6.

Greg> What makes you think you don't have control over your digital self, Ren?

Because the nearest thing that seems to apply is the US (surreal) Rights of Publicity, now quite apart from the fact that I’m in the UK and cant think of any UK / EU law that covers a similar area, RoP seems to require both a commercial angle (rather than this just being a human right) and a degree of fame which would probably not encompass reputation in a given VW.

[Ren]

7.

Descending into silliness now…

For the avoidance of doubt: Esther and Larry were hanging with me, not the other way round :)

Re: the scurrilous remarks about my appearance: I’m consulting my crack legal team as I type :)
Though as the UK politician Tony Benn once said when once considering legal action: the lawyers told me that I didn’t have a reputation to defend.

In case any viewers are wondering what the rest of the TN crew (and some contributors) look like, a good slice of us are imaged here (Ted looks soo lifestyle don’t you think) and (users be warned the following page contains at least one image of Eric Zimmerman) here.

[greglas]

8.

Well, there's a lot of state variation here in the US on exactly what RoP means (whether it exists, whether "fame" is required, what is commercial/non-commercial) -- see the links in the "Authorial Play" post from a few days back.

But point taken that you're in the UK... Perhaps you're lucky? Exactly what kind of "control" would you like to have over your digital self?

[Ren]

9.

Greg> Well, there's a lot of state variation here in the US on exactly what RoP means
Yes I should have added confused / contradictory to surreal

> Exactly what kind of "control" would you like to have over your digital self?

Mmm, I’ve never really made a list and of course it depends what we mean by digital self, here I am thinking something more than a current avatar (I’ve also not notated the boundary conditions yet either – these always seem to be coming in my next paper). Boundary conditions are possibly something:

• that looks very like me
  or
  
• some how has aspects of my personality encoded in the AI
  or
  
• is tightly associated with personal data about me e.g. NI number, bank account, DNA data, retinal data
  or
  
• is a recognised token of identity in civil society and is used as a form of proxy for, say, voting

Off the top of my head, things that I would not like to happen in this case are:

• It to be owned by a company
• To be deleted with out me being told
• Words to be put in its mouth

It’s bad of me not to have made the rights / boundary conditions list, however I do think that this is the way to go to think about these things i.e. look at the rights and implications first then do the legal gap analysis.

[hunter]

10.

Spring 2002 Linden Lab participated on a Stanford Law School panel which addressed some of these issues. Two years ago there was even less academic thought and relevant case law so the discussion was largely around hypotheticals but I've included the panel description below - perhaps some of the other panelists have since published works discussing these issues.

Stanford Law School, Spring 2002
PANEL 2: Problems of Identity in Digital Animation

Panelists will consider the legal implications of recent advances in digital animation that enable extremely sophisticated, realistic representations of both actual and fictional personalities. Avatars, virtual puppets and fully developed "virtual celebrities," such as Kyoto Date and Final Fantasy's Dr. Aki Ross, are pushing legal definitions of personhood and rights of personality. Should protections that exist for image, likeness and voice be extended to cover new boundaries? The panel will look at how legal protections can be balanced with artistic freedom as animation technology increases the ease of altering digital performances.
Panelists: Gregg Homer, Entertainment Law Group (moderator); Prof. Joseph Beard, St. John's Univ. Law School; Prof. Christoph Bregler, Stanford University; Philip Rosedale, Linden Lab; Richard Thompson, Bloom Hergott

[greglas]

11.

Excellent find, Hunter! We've talked about Joe Beard's work here before. He's evidently been doing the virtual human issues for quite a while...

Check out the video of the panel. The sound and video are pretty awful, but it is intelligible.

[Scott McMillin]

12.

2nd = second; 2 = two.

This is an aside, but I thought I'd let you all know that within its own community Second Life is referred to using the acronym "SL" not "2L".

Maybe it's just me but everytime I see 2L I think "Two Life."

1/2L might be okay for Half Life because 1/2 = Half. Anyway don't take it from me -- look at Cory's posts.

Sorry to interrupt, but it's been bugging me for a while now.

[Dennis G. Jerz]

13.

.5L?
L/2?

[Alan Stern]

14.

I like the distinction drawn in the initial post between in-game avatars resembling real world persons versus securing rights for purely in-game persona. This sounds very much like identity theft, a common-enough issue these days. Perhaps this will become only more important as/if virtual world interactions become more commonplace and comprehensive.

Nowadays, if someone misappropriates my name or likeness in a game, I'm unlikely to care too much unless they do something that has an impact on me in the real world. Without such a causal connection, any such rights are superfluous and unnecessary. But does such a causal connection exist today between these virtual worlds and the real world? If someone in SL were to construct an 'Alan-the-Idiot' avatar (AV), would I in fact have any reason, let alone right, to pursue this? At that point, would such an AV violate the Terms of Service for SL? (Admittedly, I haven't checked the ToS yet.)

[Ren]

15.

Alan,
I’ve always imagined that if someone does something to damage ones reputation in a way that has economically harmful effects then there is bound to be a legal avenue somewhere that one could hang an action on.

Hence my feeling that if one trades on ones identity in some way, even if this is in a virtual world, then a bunch of rights (and indeed obligations) would start to obtain.

If for instance your are a SL vendor or event organiser then part of your business worth is based on the good will associated with your identity – so if someone does create an 'Alan-the-Idiot' avatar the surely there are all types of leagal avenues you might take: dredging the memory of US law phrases such as trade dress, un-registered trademark and indeed the good old RoP come to mind.

However if we go down this route I think we would also find thing like your right to sell your avatar might be restricted as the situation of someone else ‘being’ you and you being a party to that is, to say the least, tricky.

Ren