Back in late October I wrote about how how Second Life content creator Aimee Weber sought to have her avatar's name made into a registered trademark. Well, all legal hurdles were cleared and a bit of virtual world history made in the process.
This is a natural progression of any technology that allows individuals to make profit. Many virtual worlds journalists have been predicting an "avatar singularity" – where the user creates and owns a single avatar for use in virtual worlds as far afield as Blue Mars and Everquest.
From a fascinating post by Virtually Blind, a virtual worlds law blog:
One interesting legal angle here: the avatar, once trademarked, is basically locked into a persistent image, so VB
hopes that ‘Weber’ is happy with her pigtails, butterfly wings, green
tutu, zebra leggings, and stompy boots, because that’s what she’s stuck
with as long as she wants to keep the mark.
In short, the Patent Office's decision to extend a trademark to an avatar which Aimee did not, in fact, create (that credit goes to Linden Lab for developing the program that created the avatar itself) means big things for the virtual world. The legal requirement of keeping an avatar in one look forever might end up killing the content industry it hopes to protect.
If avatar trademarking goes mainstream, this presents a major content creation hurdle. As virtual worlds expand and encompass more of our lives, and the idea of having one persistent avatar between worlds grows, trademarked avatars will be locked into one appearance. They are effectively no longer consumers of virtual goods for as long as they seek to keep their trademarked appearance.
There are also questions of how wide-ranging the trademarking is, given the untested nature of virtual litigation. If I make a bicycle in Second Life and copyright the design, does that protection now deny others the right to make my bike in all other virtual worlds? If someone in Blue Mars creates a product similar to mine unknowingly, can I press charges?
What does this mean for Stroker Serpentine's lawsuit against Linden Lab? Can the content creators targeted by Eros LLC argue that they were merely modifying a product that bore no trademark? Since no lawsuits have been ever been filed related to purely virtual trademarks created and maintained in a virtual space, this is difficult to tell.
Taser argued that Second Life content creators violated their trademark and caused "brand damage" by creating virtual stun guns, but this case involves a real company suing for virtual incarnations. What about a virtual character defending their virtual trademarked products from other avatars in U.S. District Court?
A brave new legal world indeed.