Augmented Reality Tattoos and Copyright Law

Two completely unrelated stories broke in the past week that, when considered together, raise interesting questions for the augmented reality industry. (Just the sort of serendipity for which the blogosphere is designed!) The first was the news that the artist behind Mike Tyson’s facial tattoo had filed a copyright infringement suit against Warner Brothers for replicating the tattoo on one of the characters in the upcoming movie, “The Hangover Part 2.” And the guys at Freakonomics have opined that “he has a pretty good legal claim.”

Second came the widely circulated story about the guy who tattooed an AR card onto his wrist that, when viewed through the Nintendo 3DS, generates an AR image:

Of course, those who follow AR literature will recall that this is not the first time people have experimented with AR tattoos. All the way back in February, for example, ThinkAnApp created this animated dragon tattoo:

That video inspired Mashable to write of “the futuristic cyberpunk dream of putting on sunglasses to see people’s skin spring to life.” But what happens when such dreams crash into the reality of lawsuits like the one over Mike Tyson’s tattoo? Will copyright battles of the future be fought over what we put on our skin?

I think the answer is most assuredly “yes.” As I’ve explained before, U.S. copyright law applies to original works of creative expression that are fixed in a tangible medium. Virtually any type of graphic art (like Tyson’s tattoo), digital image (such as the images generated by the Nintendo 3DS), or digital animation (like the flying dragon tattoo above) is sufficiently creative to qualify. Skin is a “tangible medium,” as are the monitors, eyewear, or whatever other type of device on which the image is displayed.

The Copyright Act affords to the creators of such works five basic rights with respect to the copyrighted work–the rights to control its reproduction, adaptation, distribution, public display, and public performance. Typically, as in the Mike Tyson case, a tattoo is a static work of graphical art, so the issue is whether it has been reproduced (on someone else) and put on public display. (The Freakonomics guys point out that there’s a pretty good “implied consent” defense to the public display argument, since the artist had to know that Tyson would go outdoors and occasionally be filmed.)

The issues are a little more complicated for AR tattoos. Rather than being limited to a finite set of skin-and-ink images, AR will allow people to wear a virtually limitless set of digital art and animations. Presumably, however, the copyrighted work in question won’t be the images that are actually inked onto the person’s skin, so there might not be any “reproduction” made of the copyrighted work. As in the examples above, all that’s perceptible to the unaided eye is a marker or QR code. It’s the act of viewing that code through an AR device that renders (and perhaps reproduces, depending on the circumstances) the digital image or animation. That might get the person wearing the tattoo off the hook for copyright infringement, and put the liability on the person using the AR viewer instead. On the other hand, the doctrine of “contributory infringement” exists for holding liable people who intentionally cause others to infringe copyrights; it could conceivably be available in circumstances like these.

(The contributory infringer, however, wouldn’t necessarily be the person who created or wore a tattoo. Markerless AR technology can, and will increasingly be able to, associate digital information with physical objects that were not specifically designed as AR placeholders. But that’s a topic for another day.)

Nor is it obvious that the image generated by an AR tattoo is being displayed or performed “publicly.” That’s especially true today, in 2011, when AR remains a rare, emerging technology, and AR images can be viewed only by webcams and smartphones, and then only in conjunction with a special program or website. So if the “3DS Guy” from the first video above walks down the street with his AR tattoo tomorrow, only someone who knew enough to approach him and ask to look at his wrist through a Nintendo 3DS would see anything other than a black rectangle with a question mark in it. Likewise, the flying dragon tattoo above only looks like a black square until the guy wearing it stands still long enough in front of a webcam connected to the right website.

Neither example seems like a terribly “public” display. When AR eyewear becomes ubiquitous, however, the equation will change radically. But whether, and under what circumstances, such displays and performances can fairly be considered “public” depend on developments that can scarcely be predicted at this point. Use of AR may even become so pervasive that making an image available to be viewed could, as with Tyson’s tattoo, create an “implied license” to “wear” the image publicly.

Whatever happens, the AR-infused world is guaranteed to get a lot more complicated–and interesting–from both a technological and legal viewpoint. Those who undertake to design that world would benefit from informed legal counsel from the earliest planning stages.