VARA rights get a Second Life.

• Author: Brown, Nathan D.
• Position: Visual Artists Rights Act of 1990

Cite as 11. J. High Tech. L. 280 (2011)

1. Introduction: VARA Rights and Second Life II. Are Electronic Worlds a Proper Medium for Works of Visual Art? A. What a Work of Visual Art is Not--Posters, and Promotional Items B. What a Work of Visual Art is Not--Electronic Information Services and Publications III. Can a Second Life Work Fulfill the 200 Copies Requirement? A. Data Images on RAM 1. Copyright Act's Definition of a "Copy" 2. RAM Images as Copies in the House Report and Case Law a. MAI Systems and RAM Copies in the Infringement Context b. RAM Data Images in the Context of an Author's Fixation 3. Trend Away from the RAM Copy Doctrine B. Second Life Works--How Many Copies? IV. Evaluating the Merits of Second Life's VARA Claim V. Implications of Success and Defensive Measures VI. Conclusion I. Introduction: VARA Rights and Second Life

   The three-dimensional online experience offered by Linden Lab's Second Life has become an online phenomenon. More than twenty million people worldwide have accounts and more than 825,000 people logged into the interface more than once in March of 2010. (1) In fact, some commentators suggest that within the next decade experiences like Second Life will become a primary venue for both entertainment and commerce. (2) These commentators suggest that because a three-dimensional experience is superior to the two-dimensional experience of websites, it will become the primary way to do business on the Internet. (3) Such a shift would make three-dimensional online worlds a multi-billion dollar industry.

   If this shift occurs, protection of intellectual property rights within the three-dimensional electronic world will become increasingly important. Second Life provides an interesting model of what these rights might look like for two reasons: (1) users have almost unfettered freedom to manipulate the Second Life world, allowing them to create their own intellectual property, and (2) Second Life "respects" the intellectual property rights of its users. (4) These two features distinguish Second Life from other three-dimensional online experiences. (5)

   First, other games in this genre have granted users only a very limited ability to manipulate the world to create new and original objects. (6) In fact, many games such as World of Warcraft and Age of Conan allow players to make only replicas of items that were previously conceived and created by the game's staff. (7) Second Life, on the other hand, provides a platform and interface for an entirely user-created world, enabling a player to create his own intellectual property such as paintings, architecture, and literature. (8)

   Second, many online three-dimensional games force players to waive their intellectual property rights for anything the player creates in-game; however, Second Life has agreed to respect the user's intellectual property and does not claim any ownership in it. (9) This provides an interesting peek into what a bustling three-dimensional online commerce might look like because it is unlikely that authors would give a full waiver of intellectual property rights that could be worth millions of dollars.

   This article considers the possible protection and implications of the Visual Artists Rights Act ("VARA") upon Second Life and similar experiences created in the future. (10) If VARA protection attaches to visual works within Second Life, it could create significant difficulties for the platform. The most obvious difficulty presented is the protection afforded to "work[s] of recognized stature." (11) Authors of such works are protected against the unauthorized destruction of their work. (12) This could mean that Second Life or similar online services would be liable for server meltdowns that result in lost data or for hackers who destroy works. These services might, for example, be liable for going out of business because it would require shutting down the servers resulting in the destruction of the digital work.

   To fully investigate whether Second Life artwork, meaning works that exist only in Second Life, could receive VARA protection, this article examines several relevant VARA requirements. This examination takes the reader on a familiar, if difficult, path through the standard for electronic copies, but with unexpected results. Specifically, in Part II this article examines whether an electronic work could be an appropriate "medium" for a work of visual art as defined by the statute. Part III discusses whether electronic works in a Second Life environment can withstand VARA's requirement that works of visual art exist in fewer than 200 copies when thousands of data images of each work are transmitted as an inherent part of the online experience. Part IV examines whether Second Life VARA claims could succeed on the merits in the current legal environment even if they could theoretically pass these hurdles. Finally, Part V analyzes the defenses that three-dimensional online experiences could assert and measures these experiences could take to protect themselves against VARA claims.

   At each juncture, this article will focus primarily on arguments that could prevent all or substantially all electronic visual works from VARA protection because even a few successful claims can lead to substantial costs for the proprietors of these online communities.

2. Are Electronic Worlds a Proper Medium for Works of Visual Art?

   VARA was enacted in 1990 due to increasing pressure from foreign countries on the United States to comply with the Berne Convention, which the United States signed only a year earlier. (13) Section 6bis of the Berne Convention requires signatories to recognize certain moral rights, including the right of attribution and the right to integrity, but the treaty left specific legislation to the discretion of the signatories. (14) Moral rights protect authors of works. (15) Specifically, the right of attribution is an inalienable right that entitles the author to have his name be associated with a work, even if he has sold the copyright to the work and the right to integrity allows an author to prevent the destruction of his works even when he has sold the work and its copyright. (16) While Congress claimed that the United States already complied with Article 6bis, (17) it nonetheless passed an act protecting the rights of attribution and integrity for certain visual artists. (18) However, VARA was narrowly limited in scope, reflecting Congress' general hesitance to recognize any moral rights. (19)

   Section 106A of the Copyright Act protects the moral rights of attribution and integrity, but its protection is limited to works of visual art. (20) The most obvious hurdle facing a VARA claim arising from Second Life is whether an electronic work can be a "work of visual art" within the meaning of the statute. (21) This part will address the first component of this question--whether an electronic artwork in Second Life, such as a data image of a "sculpture" or "painting," is an acceptable artistic medium for a work of visual art.

   VARA defines a "work of visual art" in Section 101 as: A "work of visual art" is--

   (1) a painting, drawing, print, or sculpture ... or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures....; or

   (2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author. (22)

   While works in Second Life are displayed on a user's screen as paintings and sculptures, they are electronic files and whether they fit within VARA's definition of those terms is a key inquiry, and somewhat unclear from the definition itself. (23)

   On the one hand the Act's legislative history, as embodied in the House Report (hereinafter "Report"), suggests the definition of a "work of visual art" has some flexibility and could include electronic files. (24) Congress recognized that "[a]rtists may work in a variety of media, and use any number of materials in creating their works." (25) Based upon this, the Report explains that whether a work falls within VARA's definition of visual art "should not depend on the medium or materials used." (26) This would seem to suggest that an artist who did not use "paint" to create his work, but instead used bits and pixels, might create a work qualifying as a VARA "painting." (27) In further support of a broad definition, the Report instructs courts to "use common sense and generally accepted standards of the artistic community in determining whether a particular work falls within the scope of the definition." (28) One district court used this flexibility to find that VARA's definition of painting and sculpture could include a wildflower arrangement. (29)

   The fact that Congress told courts to use "common sense and generally accepted standards of the artistic community" suggests that, as art evolves, the definition of a "work of visual art" evolves with it. (30) If virtual paintings and sculptures become an important medium for visual artists, then a court's common sense could accommodate virtual works with VARA protection. (31) Further, that the House Report explicitly suggests flexibility in medium implies that a work in the electronic medium could receive protection. (32)

   On the other hand, several elements of the House Report suggest a narrower view of a painting, sculpture, drawing, print, or photograph. (33) The Report states that the definition is "not synonymous with any other definition of the Copyright Act and, in particular, it is narrower than the definition of 'pictorial, graphic, and sculptural works.'" (34) The Report explains that Congress intentionally used a narrow definition for a work of visual art in order to narrow the scope of VARA's protection. (35) In addition, the Report includes Representative Markey's testimony that "... we have gone to extreme lengths to very narrowly...