Of copyrights and flying phalluses -- a note on avatar rights

"Are you ready for avatar rights?" asks lawyer and recent McGill University graduate Jeff Roberts in the Toronto Star. "If you believe it's laughable for a digital character to consider suing in a real-life court, think again", he writes. "As online games soar in popularity and rake in millions, the distinction between virtual characters and their creators is eroding". Warning of sinister things to come, he reminds readers that, in 2006, digital representatives of real world news outlets arranged an interview in Second Life with an avatar named Anshe Chung. After Chung arrived online to discuss how she had become the largest real estate magnate inside the game and, by doing so, a millionaire outside of it, the interview was derailed when Chung was bombarded by a montage of giant phalluses introduced to the online studio by a hacker.

Avatars, Roberts points out, have also been victims of fraud, murder (by so-called "character killers") and even sexual assault. At the same time, the provenance of certain avatars is becoming the subject of ethical scrutiny amid reports of Asian gaming sweatshops that produce characters for export. As these online worlds grow in scale, so do the conflicts that emerge within them.

The intellectual property aspects of avatar rights cannot be ignored. Writes Roberts:

"While it is becoming apparent that people have rights within digital realms, it remains uncertain how those rights should be defined. In the case of Chung (victim of the flying penis attack), her real-world husband attempted to use copyright law to force media outlets to remove images related to the incident. He retracted the threats after a number of groups complained that the demands amounted to news censorship.

Copyright and other forms of property rights have so far formed the basis of the handful of lawsuits from online realms that are trickling into the world's courts. These cases typically involve plaintiffs who have lost virtual assets through the termination of their accounts or who have had their merchandise in a game illegally copied by digital counterfeiters.

... A harder question is whether these digital creatures should also enjoy personal rights. For instance, it seems somehow perverse to rely on a notion like property damage to address a cyber-rape (the first instance of which was reported in 1993).

... Despite the popularity of online computer games, the extent to which digital people should be endowed with actual rights remains an open question. In this country, it appears the distinction between avatars and individuals will remain intact for the foreseeable future".

The IPKat sees no difference between avatars and any other fictional characters and proposes to lobby for recognition as a juridical person in his own right.

Avatar sued for copyright infringement here
When the Tweenies sued the BBC for human rights violations here
Of copyrights and flying phalluses -- a note on avatar rights Of copyrights and flying phalluses -- a note on avatar rights Reviewed by Jeremy on Tuesday, July 08, 2008 Rating: 5


  1. Avatars are just a passing fancy hence make a nice topic for a dissertation or a legal article but not much more.

  2. I entirely disagree with the previous post suggesting avatars are a "passing" fancy. They've been around a long time and these stories are getting more and more common.

    What they are, and probably always will be, is a "minority" fancy. To say that they are therefore only good material for dissertations or articles is to sideline a minority who, more commonly, want their voice to be heard along with every other minority out there.

    As for the main post. I agree that the idea that online rape is proprty damage is completely perverse (at least in the absence of AI significantly better than current technology permits). What it could be is harrassment which could be serious enough, and potentially psychologically damaging enough to the person behind the avatar in the case of rape, to be a criminal action.

  3. I(tm)- Wanna bet?

    Sounds to me like the comment from the Post Office director on the (then) recent invention of the telephone "Ha! Electric messages? When I want to send a message I use a messenger boy!"

  4. "I (tm) said...

    Avatars are just a passing fancy hence make a nice topic for a dissertation or a legal article but not much more."

    What are you basing the "passing fancy" claim on? As I see it Avatars are simply becoming more and more complex. "Back-in-the-day" it wasn't an "avatar" that we had, it was just a handle, a name. On the BBS, IRC, and MUD channels of old that was your avatar; although not really called an avatar these handles served the same purpose of modern avatars: they were an individual's cyber presence as both personal representation and character (especially on the MUDs).

  5. Re the first poster, some relevant quotations:

    "Guitar groups are on the way out Mr Epstein" (Decca records, turning down the Beatles in 1962).

    "It doesn’t matter what he does, he will never amount to anything." (schoolteacher to the father of a 16 year-old Albert Einstein).

  6. I saw an interesting commentary on the BBC some months ago relating to this very subject. One idea expressed in this was to use a sports analogy to regulate the online world - rather than IP.

    Basically in contact sports, what would normally be considered an assault (such as in boxing, rugby, fouls in football etc), the law in most cases allows to be governed by the regulatory body of that sport (FA, boxing federation etc) and only intervenes in extreme cases, where the rules of the sport in question have been broken and this leads to a serious injury to another player.

    The analogous use in online worlds would apply where the "virtual world" provider ensures that there are rules for that world. This is not a real world activity, it is a game and in certain cases, what would constitute a criminal offence in the real world, does not necessarily cause any harm when performed in the online world, although in certain cases it can constitute libel or cause financial loss. For example in online games it is often the whole point of the game to kill opposing players' characters - clearly no one is actually harmed. However, where in an online world a person suffers financial loss through virtual fraud, then the law can intervene. As for a role for IP, the regulations of a game should clarify what status any character or virtual property developed or acquired by a player actually has in a real world sense - i.e. who has the IP rights relating to that player and his or her virtual possessions, essentially the rule book of the game becomes a contract between the player and the provider and the attractiveness of that contract can become an aspect of competition between the various game providers (who provides an attractive contractual (i.e. regulatory) arrangement will get more customers).


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