I Derryth

Rowan Derryth's Virtual Adventures

Destination: Copyright Infringement

Dante Gabriel Rossetti, 'Astarte Syriaca' (1877). Oil on canvas, 72 x 42 in. Collection: Manchester City Art Gallery.

I am not usually one to criticise Linden Labs, I think they have their wonderful aspects, and areas that need improvement. But last night they left me incredibly disappointed. Before I explain, indulge me while I give you some background. You might be entertained: it is a tale of gorgeous art, and misdirection!

Those who know me well know that one of my very favourite paintings is Astarte Syriaca by Dante Gabriel Rossetti. A sensuous, incredibly beautiful portrait of his muse Jane Morris, Rossetti wrote an equally seductive poem to accompany it, an ode to his desire for the model which includes the lines:

Her twofold girdle clasps the infinite boon
Of bliss whereof the heaven and earth commune…

 

Translation: her belt, which winds under her breasts and about her hips, highlights her seductively saucy bits that Rossetti desires. The painting and poem shocked Victorians for its overt sexuality, which is perhaps part of why we love it today.

Pre-Raphaelite art is ubiquitously reproduced today on everything from dorm-room posters to coffee mugs. Like the Impressionists, their colourful and beautiful canvases are safe and comfortable to contemporary audiences, and museums and collectors who own the originals make a neat profit on reproductions rights. As an art historian, I don’t actually have a huge problem with this; it assists in keeping the majority of these collections open and free to the public (at least in Europe). And I love the irony of my coffee thermos with Munch’s The Scream on it.

So, why am I opening this issue up here? Last night, I found myself at the TOC Gallery (Touch of Class, apparently), looking at this:

'Astarte Syriaca', mislabeled 'The Annunciation', for sale. Rossetti's 'The Beloved' can be seen at left.

TOC might be familiar to many readers. It is a rather large ‘gallery’ (I use that term with a great deal of apprehension here); sky platforms really, which displays popular works of art in photoshopped frames – for sale. They are fairly cheap at around $150L a piece, and the gallery certainly isn’t alone in this type of business: people have been importing (and sometimes selling) ‘rezzed repros’ (my new term) inworld all along.

In fact, rezzed repros were the very first thing I ever saw in SL. My noob-girl’s first teleport was to the Dresden Gallery, a wonderful virtual recreation of the actual Dresden Gallery made in partnership with the Dresden University of Technology. The works on display are Old Masters, and as well from their own collection. Some are available for purchase, which is really a donation to help keep the project going – not a private money-making scheme.

[Note: I had lovely images by PJ to post here of the Dresden Gallery, but have withheld them pending permission due to the following notecard given by the management:

© 2009: The idea, works of art, shop articles and buildings as well as their virtual reproductions are the property of the Staatliche Kunstsammlungen Dresden and may not be copied, duplicated or otherwise used, in whole or in part, in real life or in the virtual world without permission. www.skd-dresden.de ]

I came to SL to explore the arts, and it wasn’t long before I discovered the virtual art I now write about. But along the way, I remember finding another place in the now-vanished Victoriana sim that displayed – and sold – Pre-Raphaelite art. The owner at least provided notecards with each piece giving a basic discussion of the work, so it was arguably educational. But they were also selling the pieces, and some were so badly stretched it made me cringe (art historian’s pet peeve). This was the first time I got to thinking about these issues from an ethical and legal standpoint.

Back to the TOC ‘Gallery’. I probably don’t need to spell out why this place bothers me. The obvious profiteering on images that the owner has no legal right to use is fairly distasteful, but that isn’t enough to make me post about it here. It’s how I GOT to that gallery that is the bigger problem, and why I was compelled to write about it.

The TOC Gallery is currently featured in the Second Life Destination Guide, under arts.

The TOC Gallery

Let’s set aside the laughable descriptor of ‘Classical Paintings’ (the Classical period in art history refers to ancient Greece, Rome, and the Mediterranean, not the ca. 15th-20th century repros for sale at TOC). How on EARTH is this in the Destination Guide?!

For those who are unfamiliar, the Destination Guide are not paid ads, and selections for inclusion are at the sole discretion of Linden Lab, according to the Linden Labs FAQ.

EDIT: ACCORDING TO THE BOX AT THE TOP OF THE FAQ, I’m not even allowed to quote the page! I am seriously dying laughing at this. I can LINK to it, but I can’t… well I can’t even tell you what I can’t do, because that would be ‘copy’ and ‘distribute’ – OOPS, did I do it? Anyway…

The TOC certainly is not in line with the very first favourable criteria for selection: edited, please see the section on selection criteria to find the very first criteria which shall not be named. TOC is a series of sky platforms and boxes textured with rezzed repros (Matisse is spinning in his grave), not very creatively designed, with a jumble of ‘framed’ works all around, and bizarre red and blue prims sticking out with no apparent purpose.

In addition to this, it has no redeeming educational function. You can look at the images, but there is no information provided about them (unlike the Dresden, which provides an audio guide, notecards, and signs in special exhibits, such as one on Canaletto). And there is also no guarantee what IS there is correct: Astarte Syriaca, for example, is labeled The Annunciation, exhibiting a clear lack of art historical (or religious) knowledge by the owner. Finally, there is certainly no collection information provided, so not even an attempt to credit the rights holder of these works.

Works by Klimt, Hopper, and Pollock are amongst the many popular modern artists being flogged.

Now, to be fair, I DID chat with a couple of the people walking around. They were enjoying seeing the work, which I think is the one redeeming value of this place – however, they, like me, wondered how these works could be for sale. Could the owner have possibly secured the rights to reproduce and sell hundreds of famous works?

I think we all can guess that the answer to that question is a definitive no.

Furthermore, by selling works that are currently under copyright (or without having obtained reproduction rights), the TOC Gallery is not only in violation of Linden Lab’s Terms of Service, but is promoting content for which they do not have or own rights – a point on which there is a big fat warning in red on the FAQ:

EDITED AGAIN: Please go look for the red warning box which I am not allowed to show you here.

So, how do I know they have not acquired the right for the hundreds of works of art they are displaying and selling? First – come on. Second – I am very familiar with several of the collections these works belong to, and as well know some of the curators involved, and am confident they would have never approved this. And in the case of works that are in collections which allow photography – such as Astarte Syriaca (Manchester City Gallery) or Regina Cordium (Glasgow Museums) – the quality of photos, in the museum lighting, would be very poor indeed, which is not the case here. Thirdly, we have the confession of the TOC ‘Gallery’ owner himself.

TOC is owned by Dwayanu Weyland, a resident since 2006. While debating whether I should contact him directly and do a little investigative journalism, I was saved the chore by the discovery that someone else had already done so: arts community leader and Linden Endowment for the Arts (LEA) Committee Member Sasun Steinbeck.

Sasun made a blog post about this place back in September. She approached him about his ‘gallery’, and included the conversation she had with this guy, which you should definitely go read. But allow me to quote a couple choice gems here:

Sasun Steinbeck: Maybe you don’t realize that you are selling copyrighted content
Sasun Steinbeck: which is illegal
Dwayanu Weyland: and your ownership of those rights is what??

Dwayanu Weyland: I find the american idea that they own the internet amusing and annoying both. I would point out that the typical sale price in my gallery is about 35 pence real, which is below the legal boundary for copyright violations. I also don’t see anybody trying to extradite the ill-gotten gains.
Sasun Steinbeck: it’s illegal to even display copyrighted images without permission, it doesn’t even matter of you make a dime or not. SL is a commercial application that benefits from the display of art in galleries such as yours, but I’d guess that it does look worse if you do make a profit, which you are, even though it isn’t much
Dwayanu Weyland: i don’t care a lot for your silly laws, tho obviously i’m subject to the Linden’s judgements. Last I checked with them, museum reproductions were fine.

Dwayanu Weyland: i can walk in to the National Museum and photograph a painting, and if i escape security Winking smiley Winking smiley Winking smiley, i’m home free.
Sasun Steinbeck: that doesn’t mean you can sell that photograph or even display it without permission, unless it falls under fair use guidelines. which this most certainly does not
Dwayanu Weyland: you obey everything you are told ! good to have sheep in the world.
Sasun Steinbeck: content theft is wrong, no matter what you may think, it is unethical and illegal
Dwayanu Weyland: I realise you represent the hundreds of poor to middling and very rarely good sl artists, who are frustrated at being incapable of selling their work, because nobody will buy it.

Wheee!

I’m not sure where Dwayanu got his rather dubious legal advice, but ’35 pence real’ adds up. I wouldn’t want to speculate how much he makes from his business… and guess what? I don’t have to! He let us know in a comment on NWN’s post ‘Unconsumed’, on SL spending:

My first two business attempts were failures, yes, I was clueless in a business sense. But I learned and my third attempt grosses around $L 2,500 / day, covering tier and misc plus RL Xmas. All without putting any money in to SL other than 1st year Premium fee.

That was in late 2009. At today’s rate of exchange, this equals roughly $3,000 US dollars per year. Let’s be clear: Dwayanu isn’t exactly turning a massive profit here, but neither is that small change. The problem as I see it is twofold: 1) What he was doing is both unethical and in part (if not in whole) illegal; and 2) Linden Labs shouldn’t be promoting it.

The thing is, what Dwayanu is doing here is exploiting a very grey area of copyright law: the use of reproductions of original material. The first puzzling question is whether a photograph that is a faithful representation of an original work that is OUT of copyright, falls under the same copyright as the original, or whether it is considered a new work of art. It is a conundrum that is at the heart of wikimedia and creative commons debates. Some museums allow their artworks to be photographed (the British Museum and the V&A immediately come to mind), at which point the photo is yours to use (and sell) to your heart’s content. Most of these, however, are little more than poorly lit snapshots. Other museums do not allow photography, and rely on reproduction fees for income (The National Gallery London, the Tate, and the Getty come to mind). And the debate here is, how can they charge for a work that is out of copyright?

Waterhouse may be long dead, but Tate Britain still owns the reproduction rights to many of the works seen for sale here.

What you pay is not for copyright, but rather a licensing fee to use their own reproduction of the image. By disallowing photography in the museum, they ensure that the only proper images come from them. But in the age of scanners and digital photographs, beautiful DYI repros can easily be made and put on the web. And personally, I’m a fan – I use them for educational purposes. Which falls under Fair Use.

Let’s talk about that term for just a second – and I must make a disclaimer, I am no copyright expert. I’m simply someone who has to deal with this professionally on a regular basis. According to this rather good explanation of the Digital Millenium Copyright Act (DMCA, something many content creators are familiar with, and if you aren’t, you NEED to be):

The Fair Use provision of the Copyright Act basically allows reproduction and other uses of copyrighted works under certain conditions for purposes such as criticism, comment, news reporting, teaching, scholarship or research.

Rezzed repros of living British artist John Hoyland's work priced at $165 each.

The TOC ‘Gallery’ is doing none of the above. They are making REAL money off of them. Furthermore, only a portion of what is being sold could even be argued to be OUT of copyright. Basically, copyright law varies from country to country, but in many places a work is protected from the author’s death plus 70 years. TOC sells numerous works still in copyright; for example, Rothko died in 1970, Picasso in 1973; elementary math tells us that these artists have not been dead 70 years, so those works are still clearly copyrightable. Even worse, living artists are represented. And unless the owner is actually British abstract painter John Hoyland, I’d think selling his work in the TOC was definitely a no no. I suppose it would be easy enough to check: Hoyland, a Royal Academician is represented by Alan Wheatley Art.
So what’s to be done? If the museums were contacted, would they waste their time pursuing this? Can this even be controlled within an environment like Second Life? I admit, it seems like a losing battle, but in the way of finding some kind of solution, I’ll bring this back to the critical issue at hand.

Linden Labs should not be promoting a business like the TOC ‘Gallery’ via the Destination Guide, or any other means.

Furthermore, they should be keeping their eagle eye on such practices to cover their own legal asses. And, they SHOULD, instead, be promoting galleries who display either rezzed repro or virtual repro work for non-commercial, educational purposes (such as Dresden, or the now sadly defunct Primtings), and/or those which display original rezzed or virtual art – of which there are plenty! (And beautiful ones too, not poorly constructed platforms that are basically eyesores.)

Finally, as consumers, we must stop paying our lindens for rezzed repros that are being sold illegally – even if they seem very cheap and we think no one will care. It baffles me why someone would pay $150L for something they could google and upload themselves for $10L. You could even buy a lovely frame to put it it in for not much more, which is a far cry better than the boring ones photoshopped on in most places.

Picasso is one of the many 'not dead very long' artists being sold. Also, the cut-in-half 'Las Meninas' as a carpet made me cringe.

Here is another suggestion. Why not buy some original art made by your fellow community members? There are so many wonderful virtual artists in SL (Dwayanu’s erudite opinion aside), why not become a virtual art collector? There is something for every taste:

As I said, the TOC ‘Gallery’ isn’t alone in these practices, and there are even some wonderful content creators out there who sadly do this in their home decorating shops (I might quietly send you some slaps on the wrist and point you to this article). But TOC gets to be the bad example because Linden Labs has seen it to promote them in the Destination Guide (and, well, because of the poor attitude displayed elsewhere).

I’m a champion of SL to the contemporary art world, and I would prefer to bring the amazing work of virtual artists to its attention than yet another crappy example of why SL has such a poor reputation. I’m asking the Lab to help me help them to look good – and reputable! – in the eyes of the art world. Remove the TOC Gallery from the Destination Guide, and make sure in future that whoever is in charge of deciding such things does a little bit more thoughtful research in to what makes a supportable destination – especially in the arts.

Special thanks to PJ Trenton for the investigative google foo in researching this, and with photography assistance. 

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13 comments on “Destination: Copyright Infringement

  1. The Literate Pen
    July 13, 2011

    You can say that again…in fact you can say it until you are blue in the face and some people will never get it but for Linden to support, even promote such unethical practices is a slap in the face of every artist who labors to produce something unique and special.

  2. Douglas Story
    July 13, 2011

    Brava, Rowan. The snotty, defiant attitude of this creep is typical of this type, who Sasun unmasks regularly. Good on you for this excellent post.

  3. Rosalie Oldrich
    July 13, 2011

    As Co-director of the former Frank Lloyd Wright Virtual Museum, we legally, peacefully, and very regretfully complied with the requests of the FLW Foundation in RL when they declined to re-sign our licensing agreement with them. Down it all came – no battles – because all involved in the project supported the intellectual property rights represented by the Foundation. No one was happy and many people criticized the Foundation for their shortsightedness, but they were within their legal and ethical rights as protectors of Mr. Wright’s name and images. And that’s how it should be.

  4. glyphgravesGlyph
    July 13, 2011

    Nicely said and done Rowen.

  5. Gabi
    July 13, 2011

    This is no “gallery”. It’s a store. One that is making money by breaking the law (of many countries) and breaking SL’s Terms of Service.

    I recommend that as many people as possible file an abuse report on this situation, and that you include a request in your report to LL for removal of this location from the SL Destination Guide.

    Mr. Weyland seems to think he is above the laws of most countries on the planet, but does seem to acknowledge that he has to follow Linden Law. Well guess what? Take a look at Section 4.4 of Second Life’s Terms of Service:

    <>

    You can view the complete TOS at: http://secondlife.com/corporate/tos.php

    As this is a direct violation of Second Life’s TOS, it *does* qualify as something for which you can file an abuse report.

    Instructions on how to file an abuse report: http://community.secondlife.com/t5/English-Knowledge-Base/Filing-an-abuse-report/ta-p/700065

    And to make it convenient for you to include the location of the abuse when you file your report, here is the SLRUL for the TOC “Gallery”: http://slurl.com/secondlife/Leelight/71/102/661

    Please join me in filing an abuse report on this situation. The more reports that LL receives, the more likely they are to remove it from the Destination Guide and to hopefully shut this place down. It’s illegal. It’s unethical. It’s against the TOS. And worst of all, this guy is making money from it AND proclaiming that fact publicly.

    We can’t stop all thieves and jerks in SL, but I think it’s time to stop this one.

  6. Gabi
    July 13, 2011

    Whoops! My paste of Section 4.4 of the TOS did not come through in my comment above as I had intended. Here it is:

    4.4 If properly notified, Linden Lab responds to complaints that User Content infringes another’s intellectual property.

    Intellectual property infringement on the Service is a violation of this Terms of Service, and you agree not to engage in such infringement. It is our policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act and to terminate the accounts of repeat infringers in appropriate circumstances. We operate an intellectual property complaint process for complaints that User Content infringes another’s intellectual property, the details of which are available in our Intellectual Property Policy. Linden Lab reserves the right to disable, delete or terminate, without notice, any user’s Content or access to the Service if that user is determined by Linden Lab to infringe or repeatedly infringe.

  7. Rowan Derryth
    July 13, 2011

    Thanks everyone.

    Rosie, I did think about the FLWVM a great deal when writing this. You are right, we complied immediately, even though we learned in hindsight that actually we would have been within our rights to simply remove any copyrighted material and carry on with the museum.

    Gabi, thanks for that information, which is of course valuable for everyone! I definitely feel your outrage. I did consider simply filing a complaint, but 1) I am not in charge of the intellectual property in charge, so didn’t think my complaint would be taken seriously; and 2) I’ve seen how difficult it has been for content creators I have known to deal with DMCAs and Linden Labs.

    So I chose the power of my digital pen, instead. It would be nice if, at the very least, Linden Labs did the right thing and take this down. I’m certainly not encouraging people to take on a crusade of paperwork against TOC ‘Gallery’ (as I mentioned there are countless others doing similar things – even some businesses many of us love). But perhaps we can spread the word a bit about the problems with this practice – some people might simply be operating out of (and purchasing in) ignorance.

  8. Simeon Beresford
    July 13, 2011

    ” It is our policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act and to terminate the accounts of repeat infringers in appropriate circumstances. ”
    To be compliant the notice has to be given by the copyright holder.

    Buisness that rely on DMCA motices do not normally police copyright otherwise since this can remove their protection under the DMCA act.

    • Rowan Derryth
      July 13, 2011

      This is what I thought.

      I do, however, know the responsible agents for several of these copyrights. So very tempting.

  9. Otenth
    July 13, 2011

    Excellent post, and they certainly sound disreputable. Thank you for the list of artists! I will be checking out several of them.

    But before anyone starts reporting *all* fine-art reproductions, bear in mind the differences between the U.S. and elsewhere, to which Rowan indirectly refers: “The first puzzling question is whether a photograph that is a faithful representation of an original work that is OUT of copyright, falls under the same copyright as the original, or whether it is considered a new work of art.” The case of Bridgeman v. Corel has been taken by Wikimedia (and others) to show that an accurate reproduction of a piece of art in the public domain cannot be copyrighted because it is not original. This does not take into account any moral rights you may believe a museum or owner of the original piece may have, nor the law in other countries, some of which acknowledge the role of skill in establishing a copyright. And of course I must caution that IANAL.

    On Fair Use, I’m curious about Rowan’s understanding of the matter. With written works (and my experience is with written works, not visual), one would *never* claim fair use for reproducing the full work, even for educational purposes. Is this common with visual works, to claim Fair Use when reproducing the entire image? I think Fair Use is an important doctrine, and I wish there were clearer guidelines.

    • Rowan Derryth
      July 13, 2011

      Thanks Otenth!

      Yes, what you stated about a ‘faithful representation’ is accurate in terms of what Wikimedia commons uses as their basis. And for what it is worth, I actually agree with this assessment – though a friend and colleague who is an expert in this area assures me that there is STILL a lot of grey, here. But as I noted, MANY of the works in TOC are not in the public domain.

      As for Fair Use – yes, you are right about written work… although I think there is some grey here, too – for example, can you not reproduce an entire journal article? What about a book chapter? Or is it a percentage.

      For a visual work, yes, you may reproduce the whole piece (rather than just a detail), as it just wouldn’t work otherwise. So, for example, many of us teach with powerpoints, and add them too moodle or blackboard for our students, but they are loaded with disclaimers about being for educational purposes. I am also considering turning mine into watermarked jpegs rather than just putting up the powerpoints, for not only are they full of Fair Use images, but they are my intellectual property as well.

      But I’m with you Otenth, I wish it were clearer on all of it, and I welcome any further insights you (or others) might have.

      • Otenth
        July 13, 2011

        Oh, yes, it was abundantly clear from your report how much of their content is very much still under copyright, no matter how you interpret it!

        For written materials, there aren’t any clear guidelines, but the relationship of the excerpt to the whole is important. You can use a relatively small portion of the text, but if it conveys the central point of the entire work, it might not be considered Fair Use (I found an example of that in the Wikipedia Fair Use article). But people do use rules of thumb: a couple of lines from a poem; two or three paragraphs from a book. A journal article is an entire work, so you couldn’t reproduce the whole thing (the magazine I work for has a copyright for the entire presentation, but the copyright for each individual article rests with the author, unless it’s work for hire). A book chapter (assuming a single author of the whole book) is almost undoubtedly too much to reproduce as Fair Use.

        Colleges and Universities have begun using a very stringent standard for the packets reproduced for sale to students. I’ve received elaborate permissions documents for excerpts that I would have thought were Fair Use.

        But since the only way to know for sure is to be taken to court and win, I can see why they err on the side of caution!

  10. Douglas Story
    July 13, 2011

    Rowan, give in to that temptation! Please!

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This entry was posted on July 13, 2011 by in Art, Copyright, Uncategorized.
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