The prevalence of virtual identity has experienced a notable increase in the 21st century, primarily due to the infusion of technology with our everyday life. The scope of this phenomenon extends from the creation of alternative online identities on social media platforms to the adoption of animated character personas in diverse media formats.
VTubers, which is an abbreviation for “virtual YouTubers,” pertain to individuals that produce and distribute material on various social media platforms, including YouTube, Twitch, and TikTok. Rather than physically presenting themselves, these designers utilize virtual avatars that mimic their actions and expressions in a two-dimensional manner. The rationales behind the use of such avatars exhibit a range of factors, encompassing mental health, physical welfare, personal safety, and the aspiration for a unique online identity. Irrespective of the underlying justification, the phenomenon of VTubing facilitates the acquisition of significant fan bases for numerous content providers who may not have otherwise garnered such levels of attention. Furthermore, a considerable number of well-established influencers, who enjoy a substantial following, have adopted this phenomenon by integrating VTube avatars into their material repertoire in order to enhance its variety.
The expeditious rise of Vtubers has granted them the luxury of instant celebrity, and economic security inside a comparatively brief timeframe. Nevertheless, this expansion has also brought up a myriad of modern Intellectual Property (IP) issues. YouTube and Twitch, being prominent social media platforms, have established their eminence by allowing the sharing of content and fostering the growth of communities of creators. Within these digital channels, Vtubers have successfully established a distinct presence, assuming the role of public figures, despite their utilization of non-human avatars. VTubers can be classified into three main categories:
1) Interactive 2D pictures
2) Virtual Representation of a Pre-existing Individual
3) Wholly Virtual Characters
Legal Ramifications of content in the Virtual World
Character design often involves transferring intellectual property rights from artists to content creators. When artists enter employment agreements, the artwork becomes the legal property of the creator, granting exclusive rights through registration. However, an overlooked issue is the lack of clarity in copyright ownership.
In a recent dispute between Projekt Melody and DigitrevX, the VTuber ‘Melody’ faced a temporary suspension due to a Digital Millennium Copyright Act (DMCA) takedown by DigitrevX, citing intellectual property violations. Melody had commissioned an artist to create a unique character design, but the agreement lacked precision on IP rights, including moral rights and implicit licenses. This case raises questions about categorizing such endeavors as commissions, service contracts, works for hire or implicit licenses.
Copying vs Inspiration; Treading The Thin Line
A recent incident involved a VTuber named Pekora, whose likeness was used in an animated series without permission, leading to a breach of intellectual property rights. The character resembling Pekora was removed from subsequent anime episodes. This raises a legal question: Is there a distinction between drawing inspiration from a human being and VTubers? The law doesn’t explicitly differentiate between 3D and 2D characters in copyright protection, considering both as artistic works under Section 13 of the Copyright Act.
To determine the copyright status of such fictional characters, legal standards are often employed, with two primary tests being pivotal: the Character Delineation Test and the Story Being Told Test.
The Character Delineation Test necessitates that the character possesses conceptual and physical attributes that are consistent, identifiable, and unique, with distinguishing characteristics. This test was developed in the US case of Nichols v Universal Pictures. The ‘Character delineation’ test means whether the particular character is sufficiently and distinctively delineated so that it warrants protection. It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for making them too indistinct.
The Story Being Told Test examines the development and traits of a character in the context of fictional works. If the fundamental plot appears to be the same, with similar elements serving as key components of the story rather than merely facilitating the plot’s progression, a legal claim may be justified.
Courts worldwide generally employ these tests to ascertain cases of intellectual property infringement. In the case of VTubers, while they can draw inspiration from existing real life/fictional characters, it is crucial that the visible character traits, namely their physical attributes that make them distinct in the original artwork, do not mirror those of the source material.
VTubers are a major part of the entertainment industry, presenting new challenges. Existing intellectual property laws are adapting to the evolving landscape, especially in the context of the metaverse and Web 3.0. An ongoing dispute between Hermès and MetaBirkins over an NFT handbag collection highlights the examination of inspiration issues in the metaverse within the realm of IP law.
In theory, a VTuber should persist even if the original person departs, but their unique personality can become closely associated with the character, potentially leading to IP issues. The complexities in this domain are significant, and it’s crucial to monitor upcoming cases that will shape and define IP laws in the Metaverse, addressing the blurred lines between the virtual and real worlds.