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Hastings Law Journal

Authors

Reina Shinohara

Abstract

As we spend more of our days online, we are seeing a shift in content moving towards a progressively simulated reality. The virtual worlds of video games and other online communities have become a norm for many, with an influx of creative content derived from those spaces being widely shared and enjoyed by millions across the country. As instances of works featuring virtual worlds and our virtual representations within those worlds become more frequent, it becomes imperative that there be a clear delineation on what protections govern those expressions within and concerning those virtual spaces. Can an avatar be copyrighted? When a user creates an avatar and uses that avatar to create a separate work, is that work separately protectable? Between End User Licensing Agreements, Terms of Use, and social practices that govern virtual spaces, it is an increasingly complex landscape for those who want to create original content to navigate.

This note explores these questions and suggests a preliminary response regarding what the law should be with respect to the use of avatars in derivative and original works of authorship. First, avatars are copyrightable, to a certain extent and within certain circumstances. Copyright ownership of avatars and virtual representations should be clearly defined to account for the creation of content that feature avatars as the primary subjects. Second, regardless of whether an avatar can be copyrighted in its virtual space of origin, content creators should be given the right to ownership over works that they create using avatars taken out of their respective virtual worlds. To avoid stifling creativity in the new age of virtual creation, there must be clear guiding principles that allow for creators to make use of the virtual representations they inhabit without running the risk of retaliation from the creators of those virtual spaces.

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