A person who operates under the name Guide Hawk or guidehawk_ltd has been marketing Second Life related goods on eBay by using an array of images taken from other users. But here's the kicker ... he has watermarked these images and defends them as his own! Some examples include Khamindie by Arahan Claveau and an image by Lena Kennedy. Not the least of this person's victims is Linden Lab itself, whose trademark logo is used to promote the products without the "No infringement is intended" notice required of any website or blog that uses the logo which might cause brand confusion.
A simple misunderstanding? Well Lena Kennedy contacted Guide Hawk and by his response it would seem Guide is sticking to his guns. Here is what he had to say:
"I have paid for use of these photos and have express permission from Linden Labs [sic] to post them on my auctions. There is no ownership from the avatar of photos in MMORG games, as there is no ownership from the photographer as well. I found this out from contacting Linden Labs[sic] while searching for good photos to use in my auction. This is true with all MMORG's as the user gives up rights of ownership and intellectual property when they make something in the game. The person taking the photo is technically breaking copyright if they use it for financial gain without permission from the makers of the game. "
I have yet to hear how Guide paid for these images but I'm going to take a guess that he paid his regular monthly usage fee to Linden Lab and now believes that fee buys him ownership of any IP that comes out of the platform.
But Guide is fatally mistaken on a number of other fronts as well. There is some debate as to whether a photo of an avatar becomes the intellectual property of the photographer or the avatar. There is some precedent for this debate in the Anshe Chung incident where she ultimately retracted her DMCA takedown notices on the grounds that the photographers of her griefing did indeed own the rights to the footage. That incident, however, was about "fair use" rather than the commercial use of other people's avatars.
But none of this is even remotely relevant here because Guide was not the photographer OR the avatar! He had nothing to do with the entire creative process. All he did was lift other people's photography and watermarked the work as his own.
He also states that all MMORG users give up the rights of ownership and IP when they make something in the game. Well, I'll chalk this up to Guide being unfamiliar with the Second Life Terms of Service. SL is famous for being one of the only virtual environments where users retain their IP rights. It would seem Guide is clearly unaware of this.
Guide has many similar auctions and the number of copyright violations is not yet known. Massively readers may want to go check it out to see if their own images are being used! Despite numerous complaints eBay has yet to remove the copyright violations from their website which means the next step will likely be a DMCA notice to Guide Hawk and to eBay. I would also expect some action from Linden Lab's legal department regarding the improper use of their logo.
In the mean time, watermark your photos! And if you can ... nail them down.
(Thanks to Cristiano Midnight and Joshua Nightshade for the heads up!)
