Hands off MY avatar !

Issues with claims of virtual property and identity


Ren Reynolds



This paper argues that there is a gap between current UK \ US law and the social and economic status of avatars.  It is argued that UK and US copyright law does not apply well to avatars as copyright does not subsist, however MMORPG players may have a claim of copyright misuse against developer-publishes who attempt to prevent avatar sales on the basis of copyright in their game software. While players of MMORPGs may also, in certain circumstances, have claims of unregistered trade mark (US law) or passing off (UK law) these are most likely unenforceable in practice. Lastly the paper examines whether the US rights of publicity apply to avatars and avatar sales, concluding that they do; and, just so long as someone sells the entire persona, they may well have a right to pass on their avatar too. The paper concludes by proposing that a non-property sui generis right in avatars should be consider based on Hegelian concepts of the relationship between property and autonomy.


Avatar, Virtual, Copyright, Rights of Publicity, Law.


Virtual worlds are contended spaces. They are a nexus between the physical and the virtual that constantly challenge our ideas about what we mean by ‘real’ and force us to negotiate the ways that we socially express senses of value.

A current focus of this debate is the status of items within MMORPGs (Massively Multiplayer Online Role Play Games). Virtual items are contentious because, the nature of MMORPGs combined with the practice of players has lead to economic value being associated with virtual items (Castronova 2001; 2002; 2003a); this in turn has attracted commercial interests, scholars, fraudsters and lawyers. The economic aspect of virtual items has also tended to frame the debate about them in terms of property and an intersection between items, disputed acts, code and the law as it stands (Lastowka & Hunter 2003).

This paper continues this debate by focusing specifically on the legal status of avatars with reference to avatar sales as viewed by UK and US law. A theme of this paper and other recent works (Lastowka & Hunter 2003, Reynolds 2002, Reynolds 2003, Stephens 2003, Taylor 2002) is that the law is significantly out of step with current practice and that the growth in real world economic interests and related crime associated with virtual worlds is sufficient impetus to explicitly include virtual items within legal ontology.

The paper uses the term avatar rather than player character as the paper aims to draw general lessons drawn from virtual worlds rather than just those that are ostensibly game spaces, what’s more I believe that the context that these issues should be viewed in is growing social utility of virtual spaces generally, in this light this paper examines conflicts over avatar sales and the applicability or a range of current laws, the paper concludes by briefly suggests a sui generis right in avatars which not a traditional property right.


There is an on-going dispute between the developer-publishers of MMORPGs and those players that trade in virtual items and avatars. Developer-publishers continue to assert that players do not have the rights to trade in virtual items and attempt to prevent the trade (though removing player accounts, working with companies like eBay to remove items for sale etc.), and groups of players continue to buy and sell on sites like playerauctions.com, uber-auctions.com and EQtraders.com. Both sides claim that they have legal rights to conduct their actions. 

But it would be wrong to portray the debate over ownership as just between players and companies. Players often look down on those that attempt to buy themselves status without the effort that everyone else has put in (Gonji 2002), and there is the social issue of people who have gained power with out the skills to use it. There is also a debate within the industry about the relationship between the need to give players real creative autonomy and the need to maintain a coherent virtual world (Glowacki 2002; Kosak 2002; Koster 2000).

However, the trade in virtual items has now begun to attract real world crime (Dibble 2003) and questions about the nature of virtual crime (Becker 2002; Castronova 2003b) - so perhaps it is time that we resolved the legal status of virtual items.


The law most commonly associated with property disputes over virtual world items is copyright. Developer-publishers believe that they have a natural property right in virtual items as they create virtual worlds so own every aspect of them. Developer-publishers also tend to believe that the control that property rights grant them is needed for marinating coherence in a virtual world that necessary for the good of all players. What’s more they believe in the legality of these rights because of both intellectual property law (Mulligan 2000) and the contract that they hold with players of the game (see below).

Many players also believe that they have a natural right of property in both virtual items and especially avatars, this stems also from law and the view that as there is no avatar in the box when the game is purchased so avatars must be created through the application of player effort, hence from labour-desert theory is naturally their property.

Assertions of right

Many developer-publishers assert their rights over virtual items in the contract that they have with players. These contracts are in the form of an End User Licence Agreement which tends to be displayed when a player installs the software and requires the player to click ‘I Agree’ before the game can be played (a so called click-wrap contract). The EULA for Sony Online Entertainment’s (SOE) EverQuest New Dawn (European edition 2002) for example, does not contain a printed form of the EULA as part of the physical game packaging or materials.

Strong assertions of control are common in EULA’s. For example Clause 9 the  EverQuest EULA states: ‘You may not sell, attempt to sell, purchase, attempt to purchase, auction or facilitate the purchase, sale or auction of any accounts, items, coin or copyrighted material relating to the Games’. Similarly Electronic Arts’ Ultima Online licence states at Paragraph 5(c):


Rights. You acknowledge and agree that all characters created, and items acquired and developed as a result of game play are part of the Software and Service and are the sole property of EA.com. You acknowledge that: (i) the Software and the Service permit access to Content that is protected by copyrights, trademarks, and other proprietary rights owned by EA.com or Content Providers (collectively, "Rights").


 Whereas the End User Access and Licence Agreement for Mythic Entertainment’s Dark Age of Camelot, a document that runs to just over 9,000 words, states at (2):


OWNERSHIP OF SYSTEM, GAME AND GAME CONTENT; RIGHTS TO ACCESS AND USE SAME” (A) “Ownership of System, Game and Game Content”, that “You acknowledge and agree that Mythic is the sole and exclusive owner of the System, and that Mythic or its suppliers are the sole and exclusive owner(s) of all right, title and interest (including, without limitation, all intellectual property rights), code, programs, routines, subroutines, objects, files, data, characters (including all items, currency, objects and attributes comprising or associated with a character and an Account).


And again (just in case you missed it), at 2(B):


Mythic Owns Accounts, Account Attributes, Characters, Items and Objects; Assignment” that “You acknowledge and agree that your Account(s), and all attributes of your Accounts, including all guilds, groups, titles, and characters, and objects, currency and items acquired, developed or delivered by or to characters as a result of Game play through your Accounts are part of the System and the Game Content, and are the sole and exclusive property of Mythic, including any and all copyrights and intellectual property rights in or to any and all of the same, all of which are hereby expressly reserved.

Questionable Copyright

The assertions contained in these contracts rest on a number of questionable legal assumptions. Either they assume that: copyright subsists in avatars and other virtual items and that the developer-publisher holds that copyright and that the rights granted under copyright encompass avatar sales, and, lastly, that any contractual clauses to this effect are legally enforceable. Or they assume that: the developer-publisher hold copyright in some other work and that these rights are extensible under licence to control the act of avatar sales. The following section examines each of these assumptions, concluding that they are all either baseless in law or tenuously arguable at best.

Does Copyright subsist in avatars ?

Copyright subsists in original works of authorship. If we grant that as an avatar has a unique name within a give virtual world and it exists, it passes the minimal tests for originality generally used. So to establish copyright we need to determine whether an avatar is work and whether there is an author.

In copyright terms there are four options for the type of work that an avatar might be: software, database, computer-generated work or some other type of work. Similarly there are five potential authors: player, developer-publisher (assuming that the program was created by a programmer who granted copyright to the developer-publisher), player & developer-publisher, computer or no one.


In general, copyright law treats software as a type of literary work and grants copyright in the code that makes up a piece of software. This principle is established under international law by article 10 of the TRIPS[1] Agreement (Trade Related Aspects of Intellectual Property Rights), which reads (art. 10(1) TRIPS):  Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971)’. Though by tradition, WTO member states have interpreted international treaties in subtly different way when enacting or revising national laws.

US law follows the general thrust of international and most national laws stating (17 USC §101[2]): ‘A “computer program” is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result’. Since Apple v Franklin[3] the US courts have affirmed the position that copyright covers instructions at three levels of code: high level languages, binary and object code. The judgement also re-enforced that “it is only the instructions themselves” that are covered. This scope excludes two areas: the idea for a program as opposed to an individual express expression as recorded in code; and data upon which instructions operate (see below for further scope limiting cases).

The European position is slightly more ambiguous, at least at the level of statue. The so called European ‘Software Directive’[4] states “the term ‘computer program’ shall include programs in any form”, and the UK’s implementation of this directive into English law provides no explicit definition of software whatsoever. Instead the Copyright, Designs and Patents Act[5] defines a ‘literary work’ variously as (Act sec. 3(1)): A table or compilation other than a database, a computer program, Preparatory design material for a compute program, a database.

English law thus relies heavily on case law rather than legislation to define the scope of software, and case law (at least in respect of software) rests heavily on the interpretive procedures and definitions created in US courts (Lemley .

The defining case in the UK is Richardson v Flanders[6]. In this case the judge, Ferris J, establishes a scope parallel between ‘the detail of certain routines’ and ‘the plot of a book or other literary work’ which mirrors arguments (Rowland & Macdonald 2000) in the US case Whelan v Jaslow[7], a case that set out certain idea \ expression tests which set limits on the scope of the application of copyright to code in the form of source or object code.  Ferris J also applies tests established in the US case Computer Associates v Altai[8] which, amongst other things, deals with the nature of non-literal copying of a computer program.

Are avatars software for the purposes of copyright?

In both the US and the UK case law has established that the copyright in software subsists in code. Now, while aspect of an avatar such as the way that is displayed, the way that it interacts with other system elements are controlled by code, what individuates a give avatar is not this code (which is common) but a set of data entries stored in a database or other wise (Lee 2003). Hence copyright in the game software does not apply to any given avatar, also what ever else they might be doing, when a player creates and uses an avatar they are not creating a piece software open to copyright either.

Databases – UK & EU Law

In system terms an avatar is individuated by an entry in a data set - generally held in a database. This raises the question of whether an avatar is a database in legal terms and thus what rights would be afforded to whom.

The UK law of copyright (established pre-1988) provides for copyright in a ‘compilation’ as distinct from the rights the may be held in any individual part of that collection. The test for where copyright subsists in a collection is that there has been sufficient ‘skill, industry or experience applied in the production of the collection’ (Charlton 2000) in relation to this Ladbrook v William Hill[9]  ruled that copyright could subsist in a football pool coupon, thus setting a minimal standard for a collection.

Post 1988 UK law incorporated the EU database directive. This defines a database as a legal object for the first time and in addition to copyright created a sui generis database right. Under the directive a database is defined as (Database Directive[10] 1(d)): ‘a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means’. The directive defines that copyright subsists if and only if (Id .3(1)): [the databases] which, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation.

Similarly the Directive grants a sui generis Database right, this time to a ‘maker’ (not author) such that (Id. 7(1)):  ‘qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilization of the whole or of a substantial part evaluated qualitatively and/or quantitatively, of the contents of that database’. The directive goes on to provide rights in respect of extraction and re-utilization.

Do avatars fall within the scope of EU \ UK database law?

In respect of copyright - it is plausible that copyright does subsist in a database of avatars as a whole , as each avatar is ‘data’ and the database schema can be seen as an ‘arrangement’ and would most probably pass the minimal criteria for ‘intellectual creation’. However, this right in the database does not extend to copyright in any given avatar as the directive states (Id. 3(2)):  ‘The copyright protection of databases provided for by this Directive shall not extend to their contents and shall be without prejudice to any rights subsisting in those contents themselves’. If we took the database to be constituted by an individual avatar (which in practice it would not be) and sought to see if copyright subsisted we would begin to get into conflicts of right as while the developer-publisher may have defined the schema; the player, in creating the avatar, selects many of the values in that schema. So there might be a case of joint ownership, but more likely we would have two in-substantial and conflicting claims.

In respect of the sui generis rights – again it is possible that these would apply to a database of avatars as a whole. But as the rights apply to “all or a substantial part of the contents” (Id. at 7(2)(a) and (b)) of the database, they again would not apply to an individual avatar.

So neither copyright in a database or sui generis database rights subsist in an individual avatar under UK law.

Databases – US Law

Databases do not exist in the legal ontology of US copyright. There is no sui generis right in databases either. Hence the situation is akin to the pre-1988 situation in the UK with a databases being seen as a collection, falling under the general provisions for literary work as interpreted in case law.

The foundation case in the US interpretation of copyright in collections is Feist v. Rural Telephone Service[11]. Feist established that just as copyright does not subsist in facts alone - it does not subsist in collections of facts simply in virtue of the effort taken to compile them. That is, Feist rejected the ‘sweat of the brow’ test as basis for copyright (Id. at II(B)).  Now, while Whelan v. Jaslow[12] overturned an argument from Baker v. Seldon[13] the idea \ expression dichotomy ruled out copyright in a form, holding that “blank forms may be copyrighted if they are sufficiently innovative that their arrangement of information is itself informative” (supra at A File Structures), CCC Information Services v. Maclean Hunter Market Reports[14] later ruled that copyright could subsist in both items within the collection and the collection as a whole sating (Id. at Discussion 2) ‘listings also embody sufficient originality to pass Feist's low threshold.  These include: (1) the selection and manner of presentation of optional features for inclusion’

Do avatars fall under the US definition of a collection for copyright purposes?

Applying this mixture of case law to avatars we have the very same issues faced with the definition of database under EU law. That is, while copyright can subsist in a collection; claims of right would be moot as, again, it is the developer-publisher that defines the database schema so may enjoy copyright in the collection as a whole, whereas it is the player that creates each avatar and selects the weighting of their characteristics, hence the status of an avatar as an individual work is unaffected.

Computer-generated and computer-aided Works

When a player eagerly un-wraps their MMORPG software package, puts the disk in a computer, runs it and generates a character they have created something that was not there when they took the wrapping off the software package. As we have established above copyright does not subsist in this creation, however it came about. But let us suppose for a moment that the thing created might be open to copyright – this raises the question of who the author would be adjudged to be.

Computer-generated works under UK law

The concept of a computer-generated work is specifically referenced in UK law (The UK Copyright Act sec. 9(3)): ‘In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken. And (Id. at sec. 178): "computer-generated", in relation to a work, means that the work is generated by computer in circumstances such that there is no human author of the work’.

This provision in the Act was created to reflect that fact that in an increasingly computerised society a growing number of works my fall outside copyright as no human author is directly responsible for the creation of the work (Millard 2000). As with ‘computer program’ the term ‘computer-generated’ is not defined further. However in the case of Express Newspapers v Liverpool Daily Post & Echo[15], the work under consideration was seen to fall within the scope of computer-generated. In this case a computer program was used to generate unique five letter sequences which were printed on 22 million cards as part of a competition called Millionaire of the Month. Council for the defence argued that as there was no human author copyright did not subsist – hence the defendant was free to publish the winning sequence is their newspaper. Ruling, Whitford J defined the role of the computer as instrumental, saying “The computer was no more than a tool” and rejected the defence argument stating “it would be to suggest that, if you write your work with a pen, it is the pen which is the author of the work rather than the person who drives the pen.” In the ruling the author of the work was adjudged to be the programmer.

Express v Liverpool Daily Post establishes that in practice copyright can subsist in computer-generated works under UK law. Moreover the case seems to suggest that a work is computer-generated when the computer is in sense acting on its own to produce the actual works i.e. in this case an algorithm was used to select each of the five letter sequences rather than a human making any decision or creative act in each case. Most relevant to the matter at hand, the ruling seems to interpret “arrangements necessary for the creation of the work” as the use of a computer program, as opposed to the creation of that program. While Whitford J’s pen analogy supports this reading of the Act i.e. it is the user of the pen not the designer or maker of the pen that is the author; the ruling is slightly ambiguous as the person adjudged to be the author was both the user of the program and the programmer.

Under UK law - if an avatar were a work, who would be the Author ?

First it should be re-iterated that that the concept of a computer-generated work rests on the pre-existing concept of work, the only aspect that it modifies is attribution of authorship – hence the discussion of copyright subsistence above is not affected by the existence of computer-generated works in UK law.

Having said this, if copyright was to subsist in an avatar, case law suggests that authorship is granted to the user of the software not the developer of the software or the software itself.

Computer-generated works under US law

Again, US laws lacks the categories provided under UK law. Hence each option for authorship (user, developer-publisher, user and developer-publisher, computer or no one) has to be examined individually on the basis of case law.  Unfortunately as things presently stand there are arguments to support each interpretation of authorship. The arguments for user and developer-publisher are as follows:

Users – could argue that a computer program is effectively an instrument of user in a relationship that is akin to a ‘work for hire’ agreement. This interpretation of computer as tool is supported by the final report of The National Commission on New Technological Uses of Copyrighted Works commissioned by the US Congress in 1974. However, the final report of the National Commission on New Technological Uses of Copyrighted Works (1978) did not take this view, suggesting instead that copyright might rest with the computer (Glasser 2001).

Developer-publishers - could argue that a computer-generated work is a derivative work of the program in which they hold copyright. The force of this argument depends very much on the nature of the final work and its relationship to the original program. In MicroStar v FormGen[16] the court considered the nature of addition levels created for the game Duke Nukem 3D and whether they constituted an enhanced game. The court ruled that they did as they incorporated pre-existing protected works. However, as Stephens (2002) has argued - if we try to apply this to virtual items we will find that they are not derivative as they ‘simply expedite the realization of a more advanced form of the pre-existing work’.

Avatars as computer-generated works under US law

As there is no specific provision for computer generated works under US, the most likely test that would be applied for copyright subsistence and authorship is the derivative work test. But as outlined above, virtual items are unlikely to be adjudged to be derivative works, which lends support to earlier arguments that copyright does not subsist under US law and hence the question of authorship is void.

Are Monopoly rights breached when an avatar is transfered?

Molly Stephens (2002) has also argued that, even if copyright did subsist in an avatar, and if that copyright were held by the developer-publisher; the act of selling an avatar does not necessarily infringe the developer-publisher’s rights. Under US law, the five exclusive rights held by a copyright holder are:  the right to make copies; prepare derivative works; sell copies; perform the work publicly; display the work publicly.

As copyright subsists in the code of the game and not in the data which individuates a particular avatar, and as when an avatar is transferred between individuals object code is not copied, Stephens argues that transferring an avatar between individuals is not a breach of the monopoly in making copies, preparing derivative works (see above also) or selling copies. A player might breach the display monopoly if they advertised their avatar using screen shots that included copyrighted work, but this is not essential to selling an avatar. Lastly, a sale does not constitute a public performance as, Stephens argues, the performance would be of the games a whole which remains under the control of the developer publisher.

In summary, selling an avatar is not a breach of the developer-publishers copyright in the game.

are EULA terms that ban avartar tranfer enforsable ?

Returning to the type of MMORPG EULA evidenced earlier – what are we to make of these in the light of the status of copyright discussed above ?

This paper has argued that copyright does not subsist in an avatar. If this is the case, signing a piece of paper or clicking I ACCEPT on a screen with the words ‘I accept that you hold copyright in an avatar’ does nothing to change this. Contract does not change copyright law - it simply applies it.

Licensing side step

But a developer-publisher does not have to make any claims about property in avatars or the extent of those rights in order to attempt to control avatar sales. A developer-publisher can say that the licence under which the player has been granted permission to use the developer-publisher’s copyrighted work i.e. the core MMROPG game; is such that the player can only use they character that they have personally initiated and developed.

The question that faces anyone who wishes to sell or purchase an avatar is whether such a clause would be enforceable?

Limits of contract

Under EU law there are strong public policy limits set on consumer contacts by the Unfair Terms in Consumer Contracts Directive[17] which states that clause that ‘causes a significant imbalance in the parties'  rights’(Id. at art. 3(1)) are unfair as are one that are ‘not individually negotiated’ (Id. at art. 3(1)). However the Directive does not pertain to contracts where the consumer is ‘acting for purposes relating to his trade, business or profession’ (Id. at art. 1(c)) hence commercial transactions over avatars are unlikely to be covered. Moreover, the directive does not apply to ‘the definition of the main subject matter of the contract’ (Id. at art. 4(2)); now, as the matter under consideration is a players avatar and the use of the client software and MMORPG game in general there is certainly a case to suggest that such terms do pertain to the main subject matter of the contract hence fall outside the scope of the directive.

US law has no direct equivalent to the EU’s Unfair Terms Directive. In fact recent moves in the US such as the Federal DMCA (Digital Millennium Copyright Act), and the proposed uniform State UCITA (the Uniform Computer Information Transaction Act) law, tend to derive public policy from an assumption of market neutrality rather than giving consumer the benefit of the doubt (Nimmer 1998).

So, under both EU and US contract law, terms in a EULA which effectively precluded the transfer or sale of avatars between players would be seen as enforceable. But this it not the end the story for the enforceability of contract terms.

Copyright misuse

Many jurisdictions have adjudged that there are sound public policy reasons for limiting the control of works and other materials by virtue of the rights granted under various intellectual property laws. If a copyright holder includes terms in a contract which limit or prohibit acts that would otherwise by permissible under prevailing copyright laws; they may, under US law, be adjudged to be in abuse of intellectual property law on a number of grounds: that they are violating the public policy that motivates the law, that the terms are anti-competitive, or they the terms breach anti-trust laws (Elkin-Koren 2001). What’s more anyone claiming an alleged abuse does no have to demonstrate injury as a result of said acts.

The principle that an intellectual property law could not, on the basis of public policy, be leveraged to restrict otherwise permissible acts was established in the case of Morton Salt v Suppiger[18] where the maker of a salt tablet machine attempted to licence the use of their machines to farmers on the condition that only the machine makers salt tablets were used with the machine. Here the Supreme Court ruled that ‘[while the grant of patent provides monopoly rights it] equally forbids the use of the patent to secure an exclusive right or limited monopoly not granted by the Patent Office and which it is contrary to public policy to grant’. Twenty or so years before this in Motion Picture Patents v Universal Film[19] the Supreme Court made the general ruling that that a patent licence could not be used to prescribe a restricted use to the detriment of the public. This case concerned a licence for ‘projecting-kinetoscopes’ which stated that the film projectors could only be used with films that projected film patented by the licensing company, in a very strongly worded ruling the court stated ‘A restriction which would give to the plaintiff such a potential power for evil over an industry which must be recognized as an important element in the amusement life of the nation, under the conclusions we have stated in this opinion, is plainly void, because wholly without the scope and purpose of our patent laws, and because, if sustained, it would be gravely injurious to that public interest, which we have seen is more a favorite of the law than is the promotion of private fortunes’. Here it is interesting that the court took into account the ‘amusement life of the nation’ and did not restrict itself to purely commercial considerations.

While it was in 1968 that the US Supreme court confirmed that the scope of rights in a copyright work is just those rights outlined in the act, stating in Fortnightly v United Artists[20] that ‘The Copyright Act does not give a copyright holder control over all uses of his copyrighted work …If a person, without authorization from the copyright holder, puts a copyrighted work to a use within the scope of one of these "exclusive rights," he infringes the copyright. If he puts the work to a use not enumerated in 1 [section 1 of the prevailing act], he does not infringe’. It was not until the 1990 case Lasercombe v Reynolds[21] that the Supreme Court considered whether there was a defence of copyright misuse based on principles equivalent to Morton Salt. It established that there is, stating ‘since copyright and patent law serve parallel public interests, a ‘misuse’ defense should apply to infringement actions brought to vindicate either right’.

Does a EULA constitute Copyright misuse under US law ?

The striking similarity between the control that a EULA seeks to extend to avatars and other virtual items i.e. using copyright in a game system as a basis to restrict certain uses of an avatar (and other virtual items) that would ordinarily be permitted by virtue of that right, and cases that have been judged by the US supreme court strong suggests that not only are such terms un-enforceable but they that would be ruled misuse of copyright.

can avatars constitue part of legal identity ?

In certain instances the law protects they way that things are identified. The law can also protect associations with an identity such as reputation or ‘good will’. There are a wide range of examples of this type of law such as trademark, the European notion of moral rights in copyright, and US rights of publicity laws.

Now, if we assume that a person sells services within an online world - say they are a guide for new players of an MMORPG; they will be come associated with this trade by way of their avatar. As some laws protect the association between identities and trade it is possible that the avatar is protected in some way.

Trade mark

Trademark is an internationally recognized property which, broadly speaking, grants certain monopoly rights in symbols, words or pictures associated with a particular product or service. As with copyright there are international agreements relating to trademark, such as the Paris Convention[22] and the 1994 GATT Agreement[23], and state laws such as the Lanham Act[24] in the US and the UK Trademark Act[25].  However, as always, each is subtly different in letter and interpretation.

As Stephens (2002) has detailed, under US law our online guide is likely to enjoy protection under the Lanham Act by virtue of the fact that, at the very least, the name of their avatar will be unique in the virtual world and though its association with a service could be recognised as an unregistered trademark This would grant a monopoly right in the use of the avatar for commerce within the given virtual world. However while trademark is alienable, it is moot whether the same laws would, in them selves, enable the sale or licensing of the avatar due to the difficulties in maintain good will (in the case of a sale) and quality in the service (in the case of licensing) – though both points are arguable.

While UK law does (in effect) provide protection for unregistered trade marks this is under the remedy of passing off – so in theory an avatar may be protected under UK law.  However passing off is negative right being based in part on the common law of deceit and in part on rights to restrain the use of a name by another in circumstances where use might bring about legal action as established in Routh v Webster[26] (Phillips & Firth 2001) – hence does not confer positive rights of property in an name or avatar.

Rights of Publicity

In the US, rights of publicity enable an individual to control the commercial use of their identity (McCarthy 1995).  Rights of Publicity are recognised either under common law or legislation (or both) in about half of all US states (Carpenter 2001). In general, rights of publicity provide injunctive relief and damages when there has been a non-consensual commercial use of an individual’s personality or person. That is, their: name, voice, signature, photograph, image, likeness, distinctive appearance, gesture or mannerisms (see for example Indiana State law[27] specifically ‘“Personality” defined’ at Ind. Code § 32-36-1-6). Rights of publicity are not a tort but are property and as such are fully alienable and descendible (Baird 2001, Beard 2001).

Applying rights of publicity laws to anyone in any circumstance is difficult. This is because the nature of the rights are based on the particularities of State law and because existing case law can be vague and in some cases contradictory (Haemmerli 1999), this said there is a possibility that rights of publicity do cover individuals and their avatars.

Do rights of publicity extend to avatars ?

The question of the applicability of rights of publicity to an avatar has two be answered in two parts. First, whether and avatar would be seen as part of an individuals persona. Second, whether an individual in a virtual community would be seen to hold rights in their personality. As there is no UK equivalent to right of publicity (Boyd 2002) or any US federal statue, this analysis will restricted to general principles of US State law and specific laws were applicable.

Do avatars identify ?

The question of whether an avatar falls within the scope of a publicity right depends on the drafting of that right and its interpretation. Unless a state law defines rights of publicity as encompassing the use of a very specifically defined set of artefact that exclude and avatar then the most likely scope test that would be applied is whether and avatar is sufficient to identify an individual. It looks like one can argue that as an avatar does not look like an individual then it could never fall under these rights. However some courts have ruled that likeness is not a requirement. The key case here is Motschenbacher v Reynolds[28] which examined whether under California state law a the use of a distinctively marked car in a commercial infringed a drivers right of publicity, finding that it did Judge Koelsch stated ‘that the driver is not identifiable as plaintiff is erroneous’ and of the relationship between the markings and persona ‘these  markings  were  not  only  peculiar  to  the plaintiff's cars but they caused some persons to think the car in question was plaintiff's and to infer that the person driving the car was the plaintiff’. Hence it is conceivable that an avatar would be ruled in scope as people that interact with an avatar do identify it with an individual. However, Carpenter (2001) argues that the ‘identifiably’ test has been so inconsistent applied that is has become muddled and complete ineffective”. Yet if there is no test how would we know if these rights ever applied?

Are players famous enough ?

The second issue at stake here is whether rights would be granted to a player. In essence this comes down to the question of whether an individual is famous enough. The case often reference here is Midler v. Ford[29] where Judge Noonan stated ‘We hold only that when a distinctive voice of a professional singer is widely known and is deliberately  imitated  in  order  to  sell  a  product,  the sellers have appropriated what is not theirs’ this has been interpreted as adding a ‘widely known’ test to publicity rights claims such as in Waits v. Frito Lay[30] which held that widely known could be defined as ‘known  to  a large number of people throughout a relatively large geographic area’. But the judgment in Midler v. Ford did not use ‘widely know’ as a test for subsistence of rights in a particular individual, the judgement states (my italics):


We need not and do not go so far as to hold that every imitation of a voice to advertise merchandise is actionable. We hold only that when a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California.


This is not the same as stating ‘We hold that only when…’ which would be a broad limitation of scope based on ‘widely known’ which is how the judgment seems to be interpreted.  What’s more Noonan also stated ‘The human voice is one of the most palpable ways identity is manifested.   We are all  aware  that  a  friend  is  at  once  known  by  a  few words on the phone’.

So it is likely that a court could rule that a player is famous enough to enjoy rights of publicity. The simplest argument is that – if another person uses our guides avatar and successfully takes business from the player, then the success of this act means that the guide must have sufficient notoriety for their persona to be commanded effectively – that is the fact of successful transgress defines the minimal limit of fame. 

Do rights of publicity apply to avatar sales ?

Rights of publicity are negative rights; that is, rights of non-interference. They protect an individual from others exploiting that individual’s personality without their permission, hence they do not directly confer property rights on any given artefact, such as an avatar. But, rights of publicity are alienable.

So what if our virtual guide sells their publicity rights? If we grant that their avatar is part of their persona for the purposes of rights of publicity; then, if the guide sells these rights it seems reasonable to expect that the buyer would have claims on the guide’s avatar. A legal argument against this would be the that there is copyright pre-emption in the avatar, but, as shown above it is highly unlikely that there is copyright in the avatar – so there seems little reason to suppose that the avatar should not be transferred as part of this transaction, as the avatar substantially forms the persona in a given virtual world.


Given the architecture of current MMORPGs and present UK and US law, it seems clear that copyright does not subsist in avatars whether we categorise them as software, a collection or a database. Indeed assertions of property over avatars by developer-publishers based upon their copyright in the game may be a misuse of that copyright. Whereas it is at least arguable that a player’s rights of trademark or rights of publicity may in fact extend to their avatar.

This leaves the practice of avatar sales in a legal netherworld. Players don’t have the rights to sell avatars as abstract items of property and developer-publishers don’t have the rights to stop or regulate the trade. But money will continue to change hands. The law really must catch up.

So do we just make avatar into property ?

One reading of this legal analysis suggests that we should take an alternative approach. The relationship between expressions of persona and identity that rights of publicity try to capture resonate with the relationship between avatar and individual. What strikes many as odd is that what is granted under rights of publicity are fully alienable property rights. As Jacoby & Zimmerman (2002) put it – does it make sense that Tiger Woods could (in theory) own the persona of Michael Jordan ? Perhaps some things should not be understood as property. 

A philosophical argument to support this position might suggest that rather than taking a Lockean \ labour-desert approach to avatars we should take a Hegelian view. That is we should see property as something that enables individuals to be autonomous. Taking into account both the necessarily mediated nature of relationships in virtual communities (Giese 1998; Scoville 1999) and the strength of identification between expression and person (including the bonds formed with the wider community) we may be motivated to construct a sui generis right of identity that applies, at the very least, to tokens of identity in virtual spaces (Giordano 1998). Hegel’s theory of property would suggest that something that is an expression of our persona which if controlled by another would significantly reduce our autonomy cannot be property ().

Does this apply to MMORPG avatars?

Not yet.



Author Biography

Ren Reynolds is a private researcher interested in the ethics of technology, computer games and virtual worlds. Research includes virtue and virtual action, cheating and the philosophical underpinning of virtual identity and property.


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[1] The TRIPS Agreement is Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, signed in Marrakesh, Morocco on 15 April 1994.

[2] United States Copyright act 1976, United States Code Title 17 Chapter 1 Section 101, (B).

[3] Apple Computer, Inc. v. Franklin Computer Corp. United States Court of Appeals for the Third Circuit 714 F.2d 1240 1983.

[4] Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs Official Journal L 122 , 17/05/1991 P. 0042 – 0046.

[5] Copyright, Designs and Patents Act 1988, as amended by the Copyright (Computer Programs) regulations 1992.

[6] John Richardson Computers Ltd. V Flanders [1993] FSR 497, High Court.

[7] Whelan Assoc. v. Jaslow Dental Lab, Inc., 797 F.2d 1222, 230 USPQ 481 (3d Cir. 1986), cert. denied, 479 U.S. 1031 (1987).

[8] Computer Associates International Inc. v. Altai Inc. U.S. District Court Eastern District of New York.

August 9, 1991 775 F.Supp. 544, 20 USPQ2d 1641.

[9] Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273.

[10] Council Directive No. 96/9/EC of 11 March 1996 (O.J. No. L77, 27.3.96, page 20) on the legal protection of databases enacted into UK law under The Copyright and Rights in Databases Regulations 1997 which amended The Copyright, Designs and Patents Act 1988.

[11] Feist Publications, Inc. v. Rural Telephone Service Co., 499 US 340 (1991).

[12] Whelan Associates, Inc. v.Jaslow Dental Laboratory, Inc. US 797 F.2d 1222 (1986).

[13] Baker v. Seldon , 101 U.S. 99 (1879).

[14] CCC Information Services , Inc., v. Maclean Hunter Market Reports, Inc ., 44 F.3d 61 (2d Cir. 1994).

[15] Express Newspapers plc v Liverpool Daily Post & Echo plc [1985] 1 WLR 1089.

[16] Micro Star v. FormGen, Inc. 154 F.3d 1107 (9th Cir. 1988).

[17] Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts.

[18] Morton Salt Co. v. G.S. Suppiger Co. 314 U.S. 488 (1942).

[19] Motion Picture Patents Co. v.  Universal Film MFG. Co., 243 U.S. 502 (1917).

[20] Fortnightly Corp. v. United Artists, 392 U.S. 390 (1968).

[21] Lasercomb America, Inc. v. Reynolds 911 F.2d 970 (4th Cir. 1990).

[22] Paris Convention for the Protection of Industrial Property of March 20, 1883.

[23] World Trade Agreement 1994 (establishing the WTO and including GATT Uruguay 1994): Annex 1C Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods.

[24] 15 U.S.C. §§ 1051 – 1127.

[25] Trade Marks Act 1994 which brought into UK law: First Directive 89/104/EEC of the Council, of 21 December 1988, to Approximate the Laws of the Member States Relating to Trade Marks (OJ EC No L 40 of 11.2.1989, p. 1).

[26] Routh v. Webster (1847) 10 Beav. 561, 50 E.R. 698.

[27] Ind. Code § 32-36.

[28] Motschenbacher v. R.J. Reynolds Tobacco Company, 498 F.2d 821 (9th Cir. 1974).

[29] Midler v. Ford, 849 F. 2d 460 (9th Cir. 1988).

[30] Waits v. Frito Lay, 978 F. 2d 1093 (9th Cir. 1992).