Playing in the Virtual Arena: Avatars, Publicity and Identity Reconceptualized through Virtual Worlds and Computer Games

Abstract

In many respects, the commercial and social interactions within virtual worlds are essentially the same as those interactions conducted face-to-face or over less engrossing technologies, however, the immersive nature of the virtual world redefines the nature of the experience. Because virtual worlds mimic their bricks-and-mortar counterparts, they exhibit commercial attributes unlike those of plays, television shows, or motion pictures. To the extent that there is commerce conducted within the medium, the historic separation between commercial conduct and expressive speech must be reconceptualized. In the first instance, such legal line drawing will necessarily be done with crude tools, so this article suggests that just as the theater and motion picture industries turned to collective bargaining agreements to provide a more refined set of rules for professional content development, the entertainment content created in virtual worlds will benefit from similar collective bargaining solutions to legally difficult conundrums.

The article provides an overview of virtual worlds and the legal framework for the regulation of content ownership; addresses the tension between the speech and property rights associated with the participants in this new art form, identifying what the law suggests and how it should evolve through case law and legislation; and suggests the steps that can be taken through private ordering collective bargaining arrangements to further clarify the protections for professionals associated with this developing new medium.

Keywords: virtual worlds, copyright, trademark, collective bargaining, film, motion pictures, First Amendment, publicity, content, viral distribution, intellectual property, computer, software, fair use, avatar, advertising, commercial speech, free speech

JEL Classification: J50, L10, L63, L82, L86, O30, 031, 034, C80