Copyright and Fair Use in Virtual Worlds
Posted by darklordofdebate on July 11, 2010
I’ve been meaning to write on this subject ever since I began playing Second Life a few months ago and started exploring the many unique environments it has to offer. For those not familiar with it, Second Life allows users to create vast virtual environments and to buy and sell virtual goods with an in-game currency that is exchangeable with real currency. Second Life itself is extremely interesting from a copyright perspective, since its entire virtual economy is based on copyright. Since the in-game economy is based on buying and selling virtual goods, the value of these goods relies on artificial scarcity produced by copy protections ultimately backed by copyright. It is another aspect of copyright in Second Life that I am interested in right now, however–namely the copyright implications raised by the nature of many of the virtual environments themselves.
I have previously written on one important type of fan-made “remixing” of popular intellectual properties in the form of anime music videos and similar fanvids. I argue that these types of fan-made media provide far more benefit to the original copyright holders than harm, and that these types of uses should be considered “fair use” under U.S. copyright law. In virtual worlds like Second Life however, there is an even more elaborate and sophisticated type of fan-made media that is even more threatened by excessive copyright enforcement–virtual environments based on copyrighted books, TV shows, and films.
As I’ve explored Second Life I’ve noticed that some of the most popular “sims” (simulations: user-created virtual environments) are sci-fi and fantasy role play sims–many of which are based on popular movies and television shows. I have discovered probably a dozen highly detailed sims based on Star Trek, Star Wars, Battlestar Galactica, Firefly, and Stargate, as well as several based on the Myst videogame franchise. Many of these contain highly detailed re-creations of exterior and interior environments from their respective franchises, and allow your avatar to dress as characters from the series, purchase objects and weapons based on those in the series, and even fly fully operational replicas of various types of spaceships. Allow me to illustrate with a few pictures:
As you can see, all of these sims are highly detailed, realistic recreations of environments from several highly popular intellectual properties–meticulously modeled down to the tiniest detail by fans who will often spend months creating these sims. And I am willing to bet most sim owners do not go through the trouble of attempting to license their sims, if that would even be possible considering how inaccessible the licensing departments at most major media companies are to ordinary individuals. This makes all of these sims potentially copyright infringing, and leaves them all merely one DMCA notice away from being taken down. This is indeed a serious risk, as those who create these seems must invest a considerable amount of time and money into creating and maintaining them. Running a full-size sim in Second Life can cost around $400 a month, which is paid either out-of-pocket by the sim owner or through donations and virtual sales paid for by members of various role-playing groups. The creators of sims like those above based on popular IPs thus run the risk not only of a lawsuit for copyright infringement, but significant financial loss as well if the sim is taken down–a risk that is not present for fanvids uploaded to YouTube. And it is a significant risk, since I found at least one instance where a Dune themed role-play sim was forced to sanitize their sim of all Dune related material after a copyright claim by the movie studio which owned the rights to the Dune series. Fortunately for them they were able to remove the aspects of the sim explicitly related to the Dune series and turn it into just a generic sci-fi desert planet sim, but for some of the sims shown above that would not be an option, since the entire sim is related to their parent sci-fi series.
Under current copyright law, it is highly questionable whether these sims would be considered fair use by a court if an infringement suit based on them ever came to trial. For a use of copyrighted material to constitute fair use, it must satisfy the four-part test of (1) the purpose and character of the work, (2) the nature of the copied work, (3) amount and substantiality, and (4) effect on the original work’s value. The first and fourth are the most important, which is why I will concentrate on them.
Under the first prong, since these sims do not directly copy anything from their source, they would fall under the derivative works right, and much of the fair use analysis would depend on whether they are “transformative” or merely “derivative.” In most cases sci-fi themed sims try to duplicate original environments from movies or TV shows as faithfully as possible, though they may change minor details or fill in parts that were not shown in the original show. It seems to me that these sims would thus be more of a simple adaptation of the original than a true transformation, since they are merely taking copyrighted scenes and adapting them to 3D virtual environments. It is a process quite similar to when movie studios license movies to videogame companies to adapt into video games.
Another important part of the first prong is whether the use is commercial or noncommercial, with noncommercial use more likely to be fair use. Most sims barely bring in enough income from donations to pay for the sim, and many sims help offset the cost by selling virtual goods which are themselves modeled after things in the series. It is possible to buy a wide variety of outfits (i.e. a Starfleet uniform), spaceships (i.e. a Puddle Jumper from Stargate, a Viper starfighter from Galactica, or the Millennium Falcon from Star Wars), and weapons (i.e. lightsabers from Star Wars), which are either fully operational in the game environment or serve as decoration. While sci-fi themed sims are probably still not making a profit (or at least not a large one), this does add a commercial aspect to them that makes it difficult to characterize them as strictly non-commercial. On the whole then, these sims probably do not satisfy the first prong of the test.
The second and third prongs are likewise questionable. The nature of the copied work is literary/artistic, which generally weighs against fair use. Under amount and substantiality, while these sims don’t by any means incorporate all or even most of the original work, they do often simulate the most important locations in their parent series, and could thus be said to take the “heart” of the copyrighted work. Finally the fourth prong is also fairly weak, as adapting movies and TV shows to video games is an established market which a well-made Second Life sim could be said to compete with, though it is doubtful this could be empirically proven. This would however make these sims likely to fail the fourth prong as well, disqualifying them from claiming a fair use defense.
Under current copyright law, therefore, it appears that these types of Second Life sims based on recreating environments from copyrighted films and TV shows are likely infringing. The question is, should they be? I believe the answer to that is no. While these types of sims may be derivative and even have limited commercial aspects, and may at least in theory compete with other video games based on these franchises, in reality any negative effect they could have on other markets would likely be negligible at best. Even the best made Second Life sims are still amateur and rather clunky in comparison to professionally made video games. Even if made by an experienced sim developer, the Second Life platform simply doesn’t allow for the same degree of functionality and realism that a professionally produced video game has, and consumers would be highly unlikely to forgo buying an officially sanctioned video game in favor of Second Life role-play environments. For example, would a Star Wars fan prefer the Star Wars themed environments in Second Life over the latest Knights of the Old Republic game? Not likely. The two are entirely different and the Second Life environments would be highly unlikely to decrease the market for the other. And even though there is an established market for licensing IPs for adaptation into video games, it’s not like the people who make Second Life sims could afford to pay the studios’ exorbitant licensing fees anyway, eliminating any possibility that they could be a revenue source for the studios.
More importantly, fans creating their own virtual worlds based on their favorite films and TV shows represents a type of cultural innovation that should be promoted rather suppressed by overly restrictive copyright laws. Lawrence Lessig loves to talk about a quote from John Phillip Suzza, who feared that the invention of the phonograph would stop young people from joining together to sing the songs of the day and would turn them into merely passive consumers of media. And that is precisely what happened with 20th century media technologies, which created separate and distinct classes of cultural creators and cultural consumers. Modern computer technologies have reversed this trend and allow “consumers” to now directly interact with the stories and songs that form our culture–in this case by actually “creating” the very worlds in which those stories take place–albeit virtually.
Ever since books and movies have existed, they have formed the backbone of our culture as common cultural reference points which we can all share and relate to. Moreover, they have always been a starting point for our imaginations, which allow us in a sense to participate in these stories ourselves. How many Star Wars fans have not indulged in daydreaming about what it would be like to live in the Star Wars galaxy, or perhaps imagined themselves as part of that great saga? Now with virtual world technologies like Second Life, individuals have the ability to play out such fantasies in a far more concrete manner, actually walking the streets of Courscant or flying on the Millennium Falcon in the guise of their Second Life avatar. It is a natural evolution of the universal desire to interact with and build upon our culture.
It was precisely this type of cultural enrichment that copyright law was designed to promote rather than hinder. It does so primarily by providing financial incentive for authors and artists to create, but we must not lose track of the fact that its ultimate goal is cultural enrichment. Copyright was never meant to give certain big companies a monopoly over culture, and in cases where fans’ follow on creativity builds on major cultural icons like Star Wars and Star Trek without substantially harming the ability of the original creators to profit from their work, it should be encouraged rather than suppressed. Not every use of copyrighted material that can be licensed should be subject to license, as in some cases it may end up decreasing cultural enrichment rather than increasing it. Such is the case here, for if copyright laws were to be rigidly applied to prevent Second Life users from building environments based on these cultural icons, a great deal of incredible creativity would be lost. This matter will only grow more important as virtual worlds continue to mature (perhaps someday even to the level of the fully immersive virtual reality portrayed in the TV show Caprica), and I can only hope that courts and legislatures begin to see the importance of protecting such follow-on creativity before copyright law is allowed to stifle this world of possibilities they represent.
It is high time we expanded our concept of “fair use” to include these types of fan-made creations, for until we do, the law will continue to cast a pall of uncertainty on all such endeavors, producing a chilling effect that can only discourage a great deal of otherwise culturally beneficial creativity.