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Feb 11, 2004



Without some sort of regulation, there can be no market; people will just be able to steal. If we saw an act that was 'authored' in an mmporg show up on a sitcom, we'd have a much better basis for argument.

Having said that, I don't think discourse between players should be subject to copyright, nor every-day roleplay, for the same reasons given for professional wrestling. But if a player writes a play and performs it in a game, then that is definitely an authored work, and should be protected.

If a player creates an area or an object or some similar content for a game, while those areas or objects may be subject copyright, the uses of those areas or objects are incidental, and should not be subject to copyright.

As an aside, I've only ever seen Jake "The Snake" Roberts perform the "DDT". Or JYD (showing my age?) and "The Thump". Am I not watching enough wrestling?


It is great to hear the major players talking about user created content. Raph has spoken about it often but generally in abstract terms.

I think that in the long term, SW:G's hyper-restrictive ToS will limit the quality of content their users generate but, as I've written on before, SW is such a valuable license, that there is a reason for them to play by different rules.


If I read Greg’s post correctly I think that what he characterises as the the legal version of the ludology / narratology debate is the law try to get to grips with two types of shift: one social, one technological.

But first to reprise IP and what I think it is getting at. Copyright can subsist where there is an Original Work of an Author. This is a car crash of legal fictions. The original authorial work presumes all kinds of stuff about the ‘romantic’ ideal of the creator, it also has implicit within it all kinds of power relations between artist and audience. When we take all this on board Copyright fits in the circumstance where someone creates a fixed thing and others consume that thing. So if I paint a picture I have the copyright in it. Performance is covered in a secondary way – the performance is not subject to copyright but a recording of it is, the people in the performance are paid to perform and the people watching it pay either on the day for the event or after the fact for, say, the DVD.

OK all this is moot at the edges, but let’s look at bigger shifts.

The social shift is that in producer / consumer power relations. As soon as we get into games there is a change. Players are participants in the act not passive (don’t go there media theories you know what I mean) consumers. This challenges the underlying power structure. Particularly when a player thinks: hay I’m the most interesting thing in here. What’s more the object of interest appears no longer to be the fixed item – who cares about a recording of an MMO session? Of course there are fixed objects subject to IP – the interface, the plot line, the code etc etc; but the shift of focus pushes these to the background.

This shift is also playing it self out in the US laws of ‘Rights of Publicity’ with these aspects of a persona are subject to property law, which again moves focus away from any fixed object an onto individuals i.e. the act of being me is my property.

Looking at the technical side of things, the legal scholar JJ Beard has written extensively on the use of modern digital technology to capture not only a performance but the underlying characteristic of that performance. The classic is that of the ‘digital clone’ of actor R Patrick being created for the liquid-metal cyborg in Terminator 2, then being used in Jurassic Park. Is the digitisation of someone characteristics that can then be manipulated in a computer really the property of a studio?

A similar argument is rumbling in the area of voice systemization where at least one company is making extensive recordings of actors voices, splitting this into individual phonemes then using these as the basis of voice synthesis – if you here the actor and the synth the result is uncanny.

A number of factors need to play out here. The law it self has a momentum. Applying legal ontology to the world provides a neat-ish way of looking at things but as technology and society develop more and more stuff leaks out of the sides. The law has always reacted – the history of IP can be written as history to technological development (the printing press which was he motivation for the original Statue of Anne, cable television etc). What is interesting is where the watershed point is and whether IP, in particular Copyright, re-invents itself of whether we get a whole new bunch of laws. Personally I the legal community to step outside the box and stop thinking of developments as a different type of property and see them as a re-application of fundamental human rights – but that’s just me.



Ren, thanks for the thoughts. Dan and I are actually working on an article now about copyright that touches on a few of the issues you raise.

Rights of publicity are a great topic, given the fact that we've currently got a mix of inconsistent and undertheorized state doctrines and statutes. I think the digital right of publicity issues you point out (that Prof. Beard wrote about -- that is a great article, isn't it?) deserve much more attention than they are getting.

Have you seen this student note from Virginia JOLT?


It's kind of in the same vein as the Beard article.



The 'act of being [you]' is not precisely what creates the property right. That is, it does not inhere as a basic human right.

The act that creates the property interest is making the persona valuable. At least in theory, it's similar to mark protection: if you make a mark valuable, then the law will create for you a protectable property interest (because the persona is non-rival). It's unjust enrichment.

And just as in the case of copyright, technology is eliminating the costs associated with associated with infringing, so the law is likely to compensate.

But, right to publicity certainly will not provide the average MMO* player a property right in their avatar.

Jeff Cole


Greg> Have you seen this student note from Virginia JOLT?

I have now :)

Greg> I think the digital right of publicity issues you point out (that Prof. Beard wrote about -- that is a great article, isn't it?) deserve much more attention than they are getting.

Yes I find it odd that more is not written on the area. Though The Journal Entertainment Law Review actually has quite a lot of pieces on the relationship between personality and property, and quite a number of papers on the Rights of Publicity specifically.


Jeff Cole >But, right to publicity certainly will not provide the average MMO* player a property right in their avatar.

Why not?




Very generally, because the right to publicity protects only that non-rival value that a person creates in a persona; it does not inhere in the persona.

Jeff Cole


I don't think that's correct, Jeff. It does inhere in the persona. ROP stems doctrinally from the right of privacy (according to the Prosser's view, at least, which seems to be the mainstream). So, unlike copyright, it is not about rewarding creativity.

The big ROP issue for avatars is actually that the avatar is NOT a real persona. You should read the Beard article. It's very good.



Greg> www.law.berkeley.edu/journals/btlj/articles/vol16/beard/beard.pdf

As a general convention could people include the title of things that they link to please?

This is Clones Zones and Twilight Zones (full ref: Beard. J. J., (2001), Clones, Bones and Twilight Zones: Protecting the digital persona of the quick, the dead and the imaginary, Berkeley Technology Law Journal, 16:3).


But but but: The Motschenbacher case.

Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974) - where the use of the image a race car was deemed to contravene the drivers ROP. Isn’t this indicative of the courts willingness to extend ROP to artefacts that signify a person?

My avatar certainly signifies me, so it seems at least arguable that I have an ROP right in it and that that right can’t be simply transferred under the EULA. Now this would mainly seem to be a negative right i.e. it would stop the game company using my avatar (implicitly its association with my persona) for their commercial purposes, but if I sold my entire persona why would the buyer not get control of the avatar too?




Note: My experience is limited, based mostly on Nimmer's article in Duke's Journal of Law and Contemporary Problems (I will try and dig up a cite later, when I get home), and, of course, Zacchini v. Scripps-Howard.

Indeed, privacy is implicated. Note, however, that there are two distinct rights: right of publicity and publicity rights.

Note also the tortious character of their roots.

Right of publicity creates a quasi-property interest in the right to profit from one's primary income-producing activity thourgh exploiting the persona (more of a "property" interest). Compare with publicity rights which prevent others from appropriating one's identity for profit (more of a tort, less of a "property" interest). Persona v. identity.

To illustrate your avatar example: there is not likely to be a publicity right in the avatar because the avatar is not the player's identity. A player could conceivably, create a right of publicity, I suppose. Perhaps not in the current MMO* state of art, but certainly in similar contexts. That some entity might infringe that avatar's right of publicity, does not necessarily mean that the entity infringes that player's publicity rights.

At least, that's my limited understanding.

I am pretty sure, though, any right of publicity is not going to give to the average MMO* player *any* ownership over their avatar. Certainly not to any extent that a player might successfully assert such a right over the EULA.

Jeff Cole


There's a basic summary of rights of publicity here: http://www.law.cornell.edu/topics/publicity.html



Thanks for the link. Here is the distinction I was trying to make:

"Wherever the line in particular situations is to be drawn between media reports that are protected and those that are not, we are quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer's entire act without his consent. The Constitution no more prevents a State from requiring respondent to compensate petitioner for broadcasting his act on television than it would privilege respondent to film and broadcast a copyrighted dramatic work without liability to the copyright owner.
* * *
'The rationale for (protecting the right of publicity) is the straightforward one of preventing unjust enrichment by the theft of good will. No social purpose is served by having the defendant get free some aspect of the plaintiff that would have market value and for which he would normally pay.' Kalven, Privacy in Tort Law Were Warren and Brandeis Wrong?, 31 Law & Contemp. Prob. 326, 331 (1966). Moreover, the broadcast of petitioner's entire performance, unlike the unauthorized use of another's name for purposes of trade or the incidental use of a name or picture by the press, goes to the heart of petitioner's ability to earn a living as an entertainer." Zacchini, 433 US 574-6 (citing Prosser).

Ren: Missed your post last time.

[Greg: Nimmer, The Right of Publicity, 19 Law & Contemp.Prob. 203 (1954) ... from Mots]

Ren & Greg:

From Mots: "'... the effect of the appropriation decisions is to recognize or create an exclusive right in the individual plaintiff to a species of trade name, his own, and a kind of trade mark in his likeness. It seems quite pointless to dispute over whether such a right is to be classified as 'property'; it is at least clearly proprietary in its nature. Once protected by the law, it is a right of value upon which the plaintiff can capitalize by selling licenses.'" 498 F.2d at 826 (emphasis added, citing Prosser).

There clearly needs to be "something more" than mere character creation. The "right" doesn't inhere in the avatar (to which I sloppily referred to earlier as "persona"), it inheres in the work to create the persona.

Jeff Cole


Oh, and I keep meaning to tie this into the thread: the right of publicity inheres in the "authorship" of the avatar rather than the avatar.

Volokh (channelled through Greg): "not all play qualifies as legal authorship."

Jeff Cole


Jeff> The "right" doesn't inhere in the avatar (to which I sloppily referred to earlier as "persona"), it inheres in the work to create the persona.

No, I'm afraid that's still not right. You should re-read the material at the link.


Greg: I have, but still disagree with you.

You seem to be focused only on the privacy aspect. I agree that a person's right to privacy does inhere in the person. And to the extent that you mean limit Right of Publicity to privacy, then I guess I agree. In that case, then you are also right that the problem for avatars is that they are not "identities." Sort of like a trade secret.

But if you take the "unfair competition" approach, then the right inheres in the work to create the value. In this case, a player might indeed have a Right of Publicity interest in her avatar that is completely distinct from her right to privacy (her publicity rights). Sort of like a trademark.

I'll try one more time: "It is the plaintiff's name as a symbol of his identity that is involved here, and not as a mere name. Unless there is some tortious use made of it, there is no such thing as an exclusive right to the use of a name; and any one can be given or assume any name he likes. It is only when he makes use of the name to pirate the plaintiff's identity for some advantage of his own * * * that he becomes liable. It is in this sense that 'appropriation' must be understood." Mots quoting Prosser (emphasis added).

Perhaps our difference is semantic, or perhaps you can provide me more than just a statement that I am wrong.

Jeff Cole


Motschenbacher was decided over 30 years ago -- a lot has happened in ROP cases since then. ROP, as currently understood, does not comport with Lockean theories of property via labor/desert, nor does it comport with trademark theory.

I'd really rather not explain it anymore, so I'll stop correcting you. See this for more detail.


Greg: That article is fine.

I was not talking about the audience's Lockean labor/desert as a property right in the persona.

Rather I was talking about the right inhering in the person's Lockean (cringe) labor/desert.

And in Dean Haemmerli's analysis the Lockean labor/desert rationale (w/r/t the person) is part of the direct and immediate "evocation" analysis.

I, too, am tired of it. Thanks for the links, I will spend more time with them.

Jeff Cole


toontown is a tight game

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