"In contrast to previous economic eras,
intellectual property will be the primary source
of new wealth in the 21st century."
- Gregory A Piccionelli, 1989
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The Flat Web Is Dead, Long Live The Avatars

(And The IP Rights Therein)

MARCH 2010

The motion picture Avatar has become a global phenomenon, breaking virtually every box office record ($2 billion at the time of this writing).   But in addition to great financial success, the film has also succeeded in introducing a world-wide audience to the concept of remotely controllable versions of persons in the form of “avatars”.   If you haven’t yet seen the movie, I highly recommend that you do.   It is not only a great sci-fi flick, it is also, in my opinion, required viewing for forward-looking adult entertainment entrepreneurs who would like a glimpse of things to come.  I say this because both the story’s concept of a remotely controllable personal avatar in a strange world, and the immersive computer generated imagery technology used to make the movie, are rapidly becoming integral parts of the virtual worlds phenomenon that many believe will dominate the next phase of the Internet. 


Like the main character in Avatar, a human who controls a genetically-custom-made alter ego avatar that lives in an alien world, participants in online 3D worlds interact through self-selected and often highly customized digital actor avatars.  Perhaps this highlights another reason for the film’s success, perhaps by tapping into something fundamental in our nature that desires a personal avatar.  After all, people are buying tickets in record numbers to see a film about avatars at the same time they are joining online virtual worlds in record numbers to interact with each other as avatars


But it may well be that the current exponential growth of interest in online virtual worlds and the unprecedented popularity of Avatar is more than just a coincidence.   According to Jon Landau, the producer of Avatar, in a recent interview with CNET News, online “virtual worlds are another avenue for people to be creative and tell stories.”  As virtual world technology evolves, he predicts “People (will) go in and record their stories and present their stories, just like they do (now) with YouTube.”


Taking that sentiment a step further, according to Internet pioneer Brian Shuster, creator of the popular adult virtual world Red Light Center, we are coming to the end of the era of what he calls “The Flat Web” as we transition to a 3D Web where virtual world technology becomes the norm.


Indeed, many technologies needed to support such a transition to an avatar driven immersive web environment already exist and are improving at a breakneck speed.  Take for example the issue of quality of the avatars or “synthespians” (a term I coined in the early 1990’s for digital actors) in virtual worlds.   While most online “worlds” currently support avatars that look like computer game characters, high quality “photorealistic” avatars have already been developed that are virtually indistinguishable from a video of a real person.   For a good example of just how realistic avatars can be using today’s technology, check out “Emily” at www.youtube.com/watch?v=UYgLFt5wfP4.


As the digital actor technology develops, more and more content will involve avatars.  This is because of another Hollywood technology known as “motion capture” or “performance capture” that records the movements of human actors, and then uses the recorded data to animate digital actors in 2D or 3D computer renderings.  Used in association with a digital actor that is a photorealistic synthespian, this technology allows one actor to provide a performance that is viewed by the audience as having been performed by another.  


Increasingly, veteran special effects artists, like Will Anielewicz of George Lucas's Industrial Light and Magic, are predicting that computer-generated digital actors will soon be indistinguishable from real actors.  In an interview with journalist Asahi Shimbun, Anielewicz said that stunt actors will be the first to be replaced by digital doubles. “We can now accomplish such realism with digital stunt doubles that it's pretty much making stunt actors obsolete”.


It isn’t difficult to imagine how the combination of photorealistic avatars and performance capture could someday impact adult entertainment.   Especially considering that 3D avatars can now be created from laser scans of adult performers that capture a high definition digital representation of all the topographical features of the actress or actor for about $3,000.   Once “scanned” the performer’s likeness can be mapped over an indefinite number avatar wireframes providing the possibility of unlimited future content creation depicting the performer as he or she looked at the time of the scan.   Other technology allows digital animators to create 3D digital “skins” for wireframe synthespians from pre-existing 2D video or photographic content. 


But for the present, the expense of performance capture technology and photorealistic avatar creation remains prohibitively high for all but the most sophisticated adult content production companies, such as Digital Playground who used the technology in Pirates II: Stagnetti’s Revenge.  But like most digital technologies, the cost of performance capture and photorealistic avatar creation are expected to decrease substantially over time and will likely soon be affordable for many more adult and non-adult content production companies, and then, eventually, for the general public.   But regardless of whether such technology becomes available to the masses in one year or five, it is virtually certain that it will be critically important for producers to possess the necessary intellectual property rights to create avatars based on real people. 


Digital Actor Rights.


Like the creation of animated characters, avatar creation involves intellectual property rights.   For example, like cartoon character animators, avatar creators possess copyrights in the expressive components of the avatars they create.   In fact, a growing area of legal interest in virtual world commerce involves intellectual property protection of avatars and avatar accessories, such as clothes, weapons, etc. that are created.  Increased interest in such protection is understandable as tens of millions of dollars are now spent annually by consumers on such customized avatars and other “virtual goods”.   In fact, at last year’s Engage! Expo, the virtual world industry’s première trade show, a panel presentation reported that this market is growing at least as rapidly as memberships in virtual worlds. 


Because avatars are at center stage in all online virtual worlds, most computer games, and now in an increasing number of Hollywood movies, ownership rights in attractive or interesting avatars are becoming valuable new digital age assets.   Correspondingly, creation or exploitation of an avatar that infringes a right possessed by another person has already become a new potential source of legal liability. 


Thus, as we enter the era of the avatar actor, here are a couple of tips for forward- looking adult entertainment companies that want to start creating performer-based digital actors or be ready and able to exploit the 2D content they create to produce non-infringing 3D avatars as technology costs fall.


1. Acquire the necessary rights to create an avatar based on your performers.  If an avatar resembling a person is used for commercial purposes (e.g., used in association with the advertising of goods or services) the person whose image is appropriated may have a claim for damages under what is known as the “right of publicity” doctrine.  The right of publicity, which is not recognized in all states, provides a person with the right to prevent the unauthorized commercial use of the individual’s name, likeness, or other recognizable aspect of one’s persona.  In some states, like California, unauthorized commercial use also includes a person’s voice.  Because of these rights, and the likelihood that there will be additional or “future-created” rights that will apply to use of a person’s likeness as a synthespian, companies desiring to create performer-based avatars are well advised to obtain legal counseling regarding how such rights can be acquired.   For example, for over 15 years our firm has provided to many of our content production clients specially worded agreements designed to acquire such digital actor rights and other rights, like the rights to turn 2D content depictions of a person into 3D depictions.   


2. Digitally scan your talent, if possible.   As discussed above, digital scans of talent, can be, if proper rights are acquired, the basic source material for the creation of a virtually unlimited amount of future content.  Additionally, as we enter the era of photorealistic avatars and computer game characters, it is possible that there will be substantial demand for use of high quality scans of exceptional adult performers who were scanned in their prime.  So if your company can afford to digitally scan compelling performers, you might be well advised to do so.   Also, if you are talent, you might want to consider investing in a scan of yourself for all the same reasons.


3.  Register the copyrights in all the avatars are other synthespian works your company creates.  The law involving virtual worlds and the avatars and virtual objects within them is embryonic and just beginning to evolve.   But if the first few cases dealing with issues of copyrights in avatars and other objects created for use in virtual worlds are any indication, it is likely the courts will recognize and enforce intellectual property rights in avatars, virtual objects and virtual worlds as a whole.   I personally believe that this will be the case.   As such, I strongly urge anyone who creates avatars, virtual objects or whole virtual worlds to register the copyrights in such works as soon as possible, to maximize the enforceability of their copyrights in such works.


The area of digital actor rights, like the area of digital actor technology, is still in its infancy, much as domain name rights were in the mid 1990s.  But just as the value of domain names grew along with the growth and development of the 2D Flat Web, so to is it likely that the value of compelling avatars will grow as the 3D web emerges.


Welcome to the brave new virtual world. 


This article is not intended to be, nor should be considered to be, legal advice.  I strongly urge you to seek the counsel of a qualified and experienced adult entertainment attorney familiar with the legal matters discussed in this article.


Gregory A. Piccionelli is an intellectual property and adult entertainment attorney experienced in Internet matters.  He can be reached at Piccionelli & Sarno at (805) 497-5886 or greg@piccionellisarno.com.






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