Virtual Youtubers & IP issues

Introduction

A virtual identity is not a novel idea in the twenty-first century. It might range from developing a different online profile to lending your voice to an animated character in a film. The virtual reality game Second Life investigated and popularized the concept of the Virtual Individual. In just a few years, the emergence of Virtual YouTubers has achieved popularity, notoriety, and financial security. Yet with this expansion there came a flood of fresh intellectual property (IP) problems. As platforms for sharing material and creating communities around content creators, YouTube and Twitch have become well-known. Youtubers have pushed their way onto the platform for public figures that is mostly centred on humans and turned Youtubers into public figures. Youtubers could be identified and categorised into three types:

 1) An Interactive 2D image,

 2) A virtual avatar of an existing person, and

 3) An entirely virtual character with a unique name and story.

Several photos are utilised in the movie instead of a person's face to create an interactive or live 2D image. The individual may opt to provide their authentic name and other relevant information in this. Under the second category, the individual employs and develops a virtual persona that is dynamic and responsive with emotions and other mannerisms that is a replica of their current online identity. The third type of character is fully virtual, with a background that is separate from the owner's true identity and maintains anonymity. Concerns with Youtubers' rights include those related to character design, personal privacy, licencing, and drawing inspiration from already existing characters.

Legal Pitfalls in Virtual World

In the most recent case between Project Melody and DigitrevX, the YouTuber Melody was taken down by the DMCA after DigitrevX claimed her of violating its intellectual property. She also lost her twitch partnership. The author of the material contacted the artist to commission a piece of original character art. But, the IP rights were ambiguous in the interaction that was viewed as a contract between them. Although there was a transaction, the inventor was ambiguous about the rights they would retain in terms of moral rights or whether it was an implicit license. This situation raises the question of when the work will be regarded as commissioned, a contract for services, or an implicit license.

Next Step: Advancement of Virtual Law

A lawyer might help with the aforementioned issues, but many Youtubers are up-and-coming content producers who lack the resources and expertise to be knowledgeable about the law. They already have the responsibility of staying current on the dynamic platform. With the transfer of rights via NFTs and the implementation of smart contracts, the issue of proper rights over the character and their usage may be handled.  NFTs do not yet give the owner the sole right to commercialise the artwork. The inclusion of commissioned NFTs and the use of smart contracts to enforce them will provide the artist and the creator the proper rights.

The makers often work for companies like Holo Live, which offers them legal counsel, a streaming workstation, and a platform to express themselves, in the absence of smart contracts and NFTs. In exchange, the corporation can keep the Youtubers' rights and give the individual who creates a character a way out if they decide to start other businesses. This makes it possible for the Virtual Character to continue existing even if the original account holder exits the character. The corporation also intervenes when the YouTuber's intellectual property is violated.

Line between Copying and Inspiration

A lookalike of VTuber Pekora was recently seen in an animated series without the creator or the production company's knowledge or permission. As a result, there was an IP breach, and the anime had to remove the character—even if they were simply background characters—from all upcoming episodes. This begs the question of whether or not Youtubers are distinct from those that take inspiration from or mimic human beings. Although 3D or 2D characters are not specifically listed as being copyrighted, they may be protected under creative works under Section 13 of the Copyright Act. We often use two methods to detect such fictitious works. Tests of character definition and storytelling are also available.

A YouTuber may draw inspiration from an existing manga or anime, but the observable character traits—the physical characteristics that distinguish the character in the current artwork—must not be the identical. As was the case in "Ashen Pekora," the offender must be held accountable if the character resembles any other existing character with just minor aesthetic alterations.

Conclusion

Youtubers are playing a significant role in our entertainment sector and provide a number of difficulties. As we head towards the metaverse and Web 3.0, it will be difficult for the current Property rights to keep up with the evolving reality. The continuing Hermès with MetaBirkins NFT Handbag collection case demonstrates how IP is being used to filter ideas from the metaverse.

A VTuber should, in theory, continue to exist even if the character's original creator does. Yet, the personality that individual provides may be entwined with the character, opening the door to massive infringements of intellectual property. There are still many difficulties to overcome, and it will be fascinating to watch how future cases affect the blurry boundaries between the virtual and real worlds and IP rules in the Metaverse.