Once in Second Life, here is a nice copyright question. Section 120(a) of the Copyright Act, added in 1990 when protection was accorded for the first time statutorily to architectural works, reads:
"(a) Pictorial Representations Permitted. — The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place."
The limitation to buildings is important, since the legislation does not provide an exemption for the copying of plans or drawings of architectural works. The limitation to two-dimensional reproductions of course heightens the interest in what is a three-dimensional reproduction. Note too that the exemption is limited to architectural works that have been constructed. This limitation is something of an analog to fair use and unpublished works: where a work has not yet been built, the architectural work owner can sue for unauthorized two-dimensional copies, subject of course to other limitations in the act, like fair use. Finally, the built structure must be located in or ordinarily visible from a public place for Section 120(a) to kick in.
Applying the above to Second Life, let’s say that a 3D model contained in a city mapping program of a proposed, unconstructed architectural work like the Freedom Tower in Manhattan is posted to Second Life as part of a resident’s site. Section 120(a) doesn’t apply because the work is unconstructed, but is there liability? Or, let’s say there is a constructed work in a public place, and it is posted to Second Life where it forms part of a resident’s site. Does 120(a) apply and is there liability is it doesn’t?
What, no HT for my hypos? Prof., ya wound me! ;-)
ReplyDeleteSeriously, I encourage everyone to check out Judge Posner's talk tomorrow and wander around SL a bit . . . there are all sorts of bleeding-edge copyright issues presented by this virtual world.
Anyway, my $0.02 on the hypo:
(1) If the architectural work is unconstructed, then the reproduction of the building design in a SL 3D model constitutes the creation of an unauthorized architectural work. (Recall that under 17 USC 101, an architectural work is the design of a building as embodied in any tangible medium of expression -- and a 3d model certanly fits that definition.) It thus is no different than if someone improperly reproduces copyrighted music, artwork, etc., in SL -- it's infringement.
Of course, there could be a decent fair use issue that might well get to a jury. I'll leave the particulars of the fair use analysis to Prof. Patry and Judge Posner (perhaps the good judge will comment on this tomorrow night), but my gut is that ultimately the fair use defense wouldn't succeed.
(2) If the architectural work *has* been physically constructed in a publicly-visible place, and the user "clones" it by taking a series of exterior photographs and using them to create a 3d model for SL, I suspect that some courts would stretch a bit and find that it is the equivalent of a "pictorial representation" exempted by 120(a). However, from a textual analysis of the statute, a 3d model would appear to be fundamentally different from a "pictorial representation."
(3) However, if the virtual "clone" goes beyond the exterior of a publicly visible building, and/or was constructed from technical drawings or CAD files rather than information obtainable from viewing the building, then the public policy objectives of 120(a) aren't really implicated, and I think a court would be less likely to strech 120(a) to cover it.
Of course, once the building is physically constructed, then the fair use calculus may be a bit different and might tip in favor of the user.
LKB in Houston (SL: Ludwig Swain)
An interesting question, which is why I suggest my clients get design patents on their building exeteriors to eliminate the ambiguity. Although I'm not aware of any caselaw on point, the "virtual construction" should be held to be an infringement under 35 U.S.C. sec. 271. If the use is not "for sale", it may not fall within sec. 289, but that section is an additional, and not a sole, remedy.
ReplyDeletehttp://www.virtualaloft.com/
One question I was kicking around with LBK, who first raised the issue with me was when is something 3D oe 2D? Is a pictorial representation within the meaning of 120(a) limited to flat representations or does it include what are referred to as 3D computer images, say as contrasted to things like 3D models? How might this ipact on the SL issue?
ReplyDeleteRe: 2D vs. 3D, very tough question, especially when you consider that while SL *appears* to be a 3D universe, all you are actually seeing is a series of 2D images on your computer monitor.
ReplyDeleteOn the other hand, I've had defendants in AWCPA cases try and argue that because blueprints are 2D representations, they also ought to qualify as "pictorial representations" exempt from the statute -- a construction that is plainly at odds with the legislative intent.
While I generally don't like to depart from a textual analysis of a statute unless such is really necessary, this might be such a case. While I may be wrong (and I encourage Prof. Patry to correct me if I am), my understanding was that the import and intent of this part of 120(a) was to eliminate the possibility that a photographer or other graphic artist who merely captures the image of a building as it is seen from a public place could be deemed to have improperly created a derivative work. In short, if people are free to view the building anyway, it should not be an act of infringement to merely preserve such views as pictorial representations.
On the other hand, while making pictorial representations of what the building looks like is OK, making an infringing architectural work (i.e., a drawing, model, or building that embodies the design of the building) is not.
So, what of a SL 3D building model?
If it is developed from merely capturing and using exterior views of a constructed building, and any "copying" is limited to reproducing such views, then it fits within the intent of 120(a). On the other hand, if it is created by going beyond such public views (especially if scale floorplan drawings or CAD files are copied or otherwise used in its development), then we've gotten beyond the intent of 120(a) and into the realm of derivative architectural works.
Related question / hypo: if someone creates a design for a building in SL that could not be constructed in the real world (e.g., something with impossibly long spans or that otherwise defy the laws of physics), could such a building design qualify as an "architectural work" that would make the illegal copying of that work (e.g., by another SL user) an act of infringement?
LKB in Houston
A slight alteration, where commercial interests come into play and damages are perhaps more cognizable. Most 3d shooter games have two components...the underlying engine that controls the game's dynamics, and levels (maps, essentially) in which the game operates. For years people have created add-ons to popular games gratis that allow you to shoot your friends virtually in famous settings. Pursuant to this, what about this hypo?
ReplyDeleteAssault at Freedom Tower! Shoot your way through 1776 feet of action and adventure, using the design and layout of the actual Freedom Tower. $29.99 at subpar retailers everywhere.
To mix it up even more, what if the game takes place in a partially constructed Freedom Tower?
LBK has asked some tough questions. The intent of 120(a) was to permit people to take pictures of buildings for personal use and for commercial purposes like books on architecture.
ReplyDeleteThe limitation to 2D representations was intended to permit architectural works owners to have control over physically constructed models.
To me all of these issues arise out of an unfortumate choice made in 1990 in drafting the legislation to consider the "copy" for fixation purposes of the architectural work to include 2D. Had we limited fixation to the actual building, the lines between architectural works and plans would have been clean. At the same time, it would have been a violation of the architectural plans to construct a building before the architect did. But a certain professor from a New York City law school expressed concern about the architect nevertheless being "scooped," as it were. I thought the concern misplaced and that it would screw things up, as it has. But the decision was made to go with the lowest common denominator, so now we have the mess we do.
As for an exclusively SL design, yes that would qualify as a fixation, but the purpose of the statute was to limit protection to those works that can be built, hence the references to habitability. An unbuildable design would still be protected as a pictorial, graphic, or sculptural work.
Prof. Patry:
ReplyDeleteRe: habitability, that's probably the cleanest answer to my last hypo. If it couldn't be physically built in the real world, then it also couldn't possibly be habitable; ergo not a protected architectural work.
(For those of you not familiar with this area of the law, the question of what constitutes a "building" for purposes of the AWCPA turns on whether or not the structure at issue is "habitable" by humans. Ergo, houses, gazebos, office buildings, etc. are protected, but things like bridges, monuments, and parking lots are not. There was a spirited debate here a while back about whether or not a parking garage was "habitable" or not.)
LKB in Houston