Of copyright, IP and product licensing

I’ve been watching a semi-interesting forum discussion going on since the weekend

In essence, some are getting upset over the fact that CBS, who now own the rights to the Star Trek franchise world-wide, have apparently “clamped down” on Trek merchandise for sale in SL, with the result that at least one creator has had all wares removed from vendors and the Marketplace, and may have also been banned.

While one may initially feel sympathy for those involved, it has to be said – as several have in commenting on the forum thread itself – that at the end of the day, copyright is copyright, period. Just because the holder happens to be a major entertainment conglomerate doesn’t make the fact that in building and selling content derived from their products, and thus potentially impinging on their copyrights, any less “wrong” than finding the guy on the next parcel over to yours is hard at work copying your own original builds.

Some of those expressing upset at the move do so on the basis that CBS (and before them, Viacom / Paramount) may have flip-flopped over matters in the past, and that holders of other franchises are more lenient. Sadly, none of this matters a jot. Nor does the issue of “fan loyalty” or any other argument.

The major issue in this matter, and the one that gets little or no mention in the topic, is that of licensing.

The fact of the matter is that over the years those holding the Star Trek franchise have made a considerable amount of money through licensing deals with other companies, allowing the latter to make Trek-related products (both real and digital) wither exclusively or in cooperation with others. These deals generally involve a significant upfront payment from the licence holder, usually coupled with a royalties payment scheme based upon unit sales.

As such, while CBS / Viacom / Paramount may well have wibbled over some matters, that licences have been granted at the exchange of large amounts of money, they do actually have an obligation to ensure said licences are protected, period. It doesn’t matter if the person in violation is a fan or not.

There are many great Trek-related (and other franchise-based) models and other goods on sale in SL. While there is no doubting the skill and dedication of those making them, many nevertheless are open to accusations of copyright / IP infringement

Some posters in the thread are calling for LL to get involved in matters. Yet the fact is, LL do not need to involve themselves in matters. I’d actually suggest that, on balance, it is far better that they don’t get involved in this, or any other licensing situation in terms of negotiations over rights even if they were so minded, as it is very likely that things would not end well for anyone.

A far better solution, as some have suggested, is for the Trek fans themselves to address the matter with CBS – and the roadmap for them doing so has already been drawn. At the end of 2010, the Battlestar Galactica community faced an identical situation Universal Studios took issue with BSG-related goods being sold in SL. At the time the fans responded by engaging with Universal and discussing the situation with them.

The result was that in February 2011, Universal Studios agreed to allow BSG-related merchandise to remain available in SL, so long as it was not being sold for personal profit / gain. One might question how actually effective this arrangement has been (there are admittedly a fair proportion of BSG-derived items on active sale in the Marketplace), but the arrangement at least leaves people knowing where they stand, and that those persisting in selling franchise-related merchandise which may be subject to licence arrangements elsewhere and / or are liable to be looked upon as copyright/IP infringing would know precisely where they stand.

At this point in time, there seems little reason to suspect CBS would not be willing to enter into such an agreement if approached positively, and I would hope that if they are not already doing so, Trek fans in SL are making overtures along such lines already. In fact, I’ll be rather surprised if this isn’t already the case. In 2010/2011 the Universal deal was reached through the able assistance of Anthony Haslage, (Ntanel Swordthain in SL), himself of the International Federation of Trekkers (IFT), and Entertainment Consumers Association (ECA) Second Life Chapter President. So not only is the roadmap there, the chief architect for bringing it to pass is himself well-placed to represent SL Trek fans.

In the meantime, perhaps the biggest question this situation leaves open is what will happen with regards to Star Wars merchandise in SL now that Disney has acquired LucasFilm, and, presumably, the rights to the highly lucrative merchandising arrangements related to that franchise.

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11 thoughts on “Of copyright, IP and product licensing

  1. There’s plenty to chew on in that thread, some good comments and ideas, such as Linden lab securing deals and replies about how they shouldn’t, I think there’s room for Linden Lab and residents to secure deals.

    However, as many in the thread point out, there’s also plenty of room for original content, although some original content is clearly inspired by other content!

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    1. Personally, I don’t think LL should involve themselves in any deal of this nature, period.

      Why?

      Because it is unlikely that any holder of a large-scale franchise (Trek, Star Wars, whatever), is going to look beyond the Lab requesting a deal, or be really geared towards handling such a unique environment as SL. Therefore, the likelihood is that were LL to approach Franchise X, they’d face the same kind of deal as everyone else: fork out a large amount up front in licence fee, then hand over a given percentage of sales as royalty. It would then be up to LL to work out how this is then leveraged out of content sold within SL, which could become a significant headache for all concerned.

      I take this view because in all probability, Franchise X would see LL as a commercial concern in its own right, and would care very little as to how it operates, what its margins are, or anything else.

      As it stands, the BSG solution would seem to be the way forward in this particular instance – although it is hard to gauge how successful that has been – as it offers up a clear example of understanding and agreement which more than adequately fits the Trek environment.

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      1. I think it depends upon the nature of the deal, LL were clearly involved in getting the Marlin studios textures into everyone’s inventory, although the main work was almost certainly done by Vryl Valkyrie, LL would still have to have reached some sort of agreement.

        A deal whereby a percentage of all sales goes to someone else, wouldn’t be an area where LL wouldn’t want to tread due to the administrative nightmare, that’s a deal for residents to forge.

        The right to use a logo or brand name however, is an area where LL could tread, or reccomended media streams whereby they are approved for usage within Second Life, that’s more LL territory.

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        1. LL could with logos and brands – were they the actual user of said logo, etc. I’m really not convinced the situation is that clear-cut where they’d effectively be acting on behalf of users who wish to use a brand name or logo for their own purposes are concerned.

          Also, with regards to this particular situation, it’s with remembering that many “logos” are also licenced. In Star Trek, for example, the UFP symobol, the rank / ship badges, etc., are all licenced to companies producing badges, insignia, replica compins, etc.

          However you look at it, it is a potential minefield with the danger of precedence being set which could ultimately do as much harm.

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  2. Well, another aspect of this issue between CBS and the makers of Trek stuff on SL is that, so I am told, early on in SL’s history, Paramount actually went into SL to encourage there to become a Star Trek fan and RP environment on SL. That is, Paramount actually, deliberately encouraged their fandom to come make and distribute Star Trek stuff there. So, CBS buys up Paramount, and along comes, presumably, some chairwarmer at CBS who one day gets notified “Hey, there’s people on this virtual world over here MAKING and SELLING Star Trek stuff!!!!” and so, one hand who doesn’t know what another hand of Paramount had specifically and deliberately set in motion… slaps down these people who were doing exactly what that other hand had intended for them to be doing.

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    1. With respect, the argument about Paramount (Viacom) “encouraging role-play” entirely misses the point.

      The issue isn’t about Trek-related role-play in SL. The fact that people are to quote you “MAKING and SELLING Star Tek stuff” for personal gain is the problem – the fact that (whether you or I like it or not) people have been infringing upon given copyright – copyright which has elsewhere been licenced.

      Paramount / Viacom may well have enocurage Trek RP in SL – but that doesn’t mean by any stretch of the imagination that they were giving people carte blanc to profit from their copyrights through the sale of unlicenced merchandise.

      As it is, and as commented in the article, there is no reason why this cannot be settled amicably (if indeed there even is a major issue); the way has been shown through the BSG agreement reached with Universal Studios: for Star Trek related goods to continue to be provided to fan in SL, so long as they are provided free of charge.

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      1. Well, some of the ones I saw commenting about this in group IM seemed to be implying that when Paramount originally came to SL, the fans making and *selling* of their creations was part of what Paramount intended and encouraged to happen, but all of this was well before my time, so I dunno if I was reading that into their meaning, without them intending it to be read by me that way, or if that actually WAS the case, so I didn’t mention that part of it here.

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        1. I can believe Paramount / Viacom (who actually owned the Paramount brand and all products in the early 2000s), talking-up role-play, etc. But I’d honestly (and speaking from experience of having dealt with Viacom in the late 1990s in relation to rl Star Trek convention organisation in the UK) be very surprised if they mentioned anything about “selling” goods in-world. Viacom have always been fairly strong gate-keepers of the Trek brand / franchise. I can, however, see general encouragement being misunderstood to be overall endorsement of all Trek-related activities in-world.

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  3. Good article. What I find rather interesting from maybe a slightly different perspective but an observation over the years. Positive Fandom is what keeps a lot of the Video Franchises alive, healthy and kicking. Star Trek, BSG, Stargate * etc all have very loyal fans and they are really the supporting foundations for these shows & spin off products. I would consider myself a fan of these movies/shows as I just love good SciFi. Personally I think it would doing themselves a disservice to clamp down and kill the RP & squelch the Fans of their shows & related products. A pinch of goodwill goes a long way (seems corporate america forgot that ancient and well known marketing value). The BSG model is certainly a positive one which encourages the fans. I don’t think that Paramount wants to get a fairly significant segment of their Fan’s upset with them, as that will translate into lost revenue in the bigger picture, they are more likely interested in coming up with a solution that works for everyone. I say that the fans are significant because not only are they playing in SL and doing their RP, these are also the folks that attend the shows, conferences etc and are a part of a much larger Fan Community overall. If Paramount PeePee’s one one segment, the rest of the segment will know about as fast as if an Atom Bomb hit NYC. You know the old saying of biting the hand that feeds you…. I suppose all the models on TurboSquid and numerous other sites are gonna be at risk now too IF Paramount decideds to be overly greedy…

    Should LL be involved ? A resounding NO. Unless Paramount decided that a Take Down is in order which LL would have to comply with, I don’t believe it’s in anyones best interest for LL to be advocating (for or against) or involved in any fashion other than what it eventually will come down to. The reality is that whatever is sold on SL or used in OpenSim really represents a small and rather insignificant amount of DOLLARS in the grand scheme of revenue making for Paramount. Appreciating their fans & supporter’s is a good thing and is a form of insurance for future revenues. LL ARE YOU LISTENING ? not…. your headed the wrong direction there buckies by not listening to those that FEED YOU & YOURS.

    Oddly enough, lately in the news and on web sites / blogs etc you see more & more of this type of clamping down over the past few years… It does not result in these companies making any more profit from doing so and in some cases it’s actually hurt profits & the public image of some of the companies because of their agressiveness and will to litigate. Do you remember when you could watch a TV show or Movie that used Ford or General Motors vehicles only ? The companies would provide the vehicles to the Film Producers for little to nothing and have them returned afterwards (except Dukes of Hazzard LOL). These companies wrote off the costs of these vehicles from their gross and they did so happily BECAUSE… It was Free Advertisement, Promotion and an opportunity to show off their vehicle fleets that were for sale at the time of production. They proved in the 70’s that doing so actually increased sales of particular models… Ahhhh the good old days. In the early 80’s Pepsi Co had a promo that if you bought two cases of their pop, you’d get a Ball Cap or T-Shirt and soon enough, you saw them out there on the street cause people wore them… Free advertisement which increased sales and market penetration.

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    1. Again, the thing to remember about the majority of fan-produced shows out there (of which the most famous in Trek circles is probably The New Voyages). They have the support of the studio and the likes (in New Voyages case) Rod Roddenberry because those making them are not profiting from them.. DVD’s aren’t being made and sold, etc. The films are being produced and made available to all interested parties free of charge.

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