Copyright in an Augmented Reality

Today I presented to the American Bar Association’s Intellectual Property Section on “Copyright in an Augmented Reality.”  I’m humbled by how well-received it was, and was thrilled by the audience’s many engaging and thoughtful questions and comments.  I think the group came away with an appreciation for some of the challenges that this emerging technology will bring.

I tried recording the session both in audio and audiovisual form, but neither worked out.  In place of completely redelivering the presentation, then, I will share with you the following,cleaned-up version of the outline that I worked from.  It lacks the visual effect of my video-laden Prezi and the intriguing conversation that ensued, but, if nothing else, it will give you a flavor of the topics we discussed.

I. Introduction to AR.  What it is, how it will manifest itself, how it works.

  • Define terms.  Augment, Reality.  “Using digital technology to enhance our perception of the physical world.”
  • Mostly visual, although there are some projects that augment other senses, like touch and hearing.
  • Concept is nothing new – at least as old as the line on NFL broadcasts.
  • Today, takes several forms.
    • Webcams.
      • Hold recognized object up to webcam, get superimposed image on monitor.  Requires you to run correct app.
      • Usually a QR code
      • Popular in magazines — subgenre called “interactive print” that many hope will save the medium.
      • Doesn’t always require QR, as in Lego kiosk.  Newer magazine apps likewise use image recognition.
    • Mobile.
      • Recognize objects and superimpose data.
      • See in tourist guides.
      • Yelp’s Monocle feature has had this for years.  Floating directions/reviews for various establishments.
      • Conceptual mapping apps.  Already have 3D streetview for Android and iOS.
      • Gaming — PS Vita, Nintendo 3DS.
    • Windshields
      • GM, others working on augmented windshield tht will recognize roads, signs, aid in driving.
      • See concept in MI4 movie.
    • Eyewear.
      • Where the potential and promise of AR lies.
      • Google Glass is what it looks like today.
      • People will be creating constant video and photos. Will have auto picture mode.
      • Sci-fi tells us to expect Terminator vision.
      • More likely to look like social media, especially when combined with facial recognition.
      • This “Wearbale computing” phenomenon is taking off.  Not just Google.  Apple has multiple patents.
      • Ultimately leading to contact lenses. Again, we see that in movies like MI4.
      • But what will life be like in that kind of world for the average Joe?  (Play clip from short film Sight.)
II.  Copyrighting AR. 
  • Section 102 describes basic requirements – original work, fixed in tangible medium of expression in which it can be perceived.
  • Tangible medium perceived with device — not problematic.  Digital data / software already copyrightable even though it lives on a hard drive and can only be seen on a monitor screen.  AR doesn’t necessarily change where the data resides, only how see it.  It liberates data from the screen.  We perceive it as floating in air, but it’s not.  Still on a 2D display, whether monitor or glasses, just displayed more creatively.
  • Works of authorship.  Again, anything that can be digitized can be augmented. We’ve already seen examples of virtually every one of these in augmented form.
  • Original works / idea-expression dichotomy.  Here it gets a little more complicated.
    • Will see a lot of digitizing of real objects in digital space.  Mere dimensional shifting is not expression.  Meshwerks v Toyota (CA10 2008) established this, several have followed it.
    • Also likely to see avatars of real human people.  Likewise not copyrightable?  What about as databases, as one author suggested following Meshwerks?  Not hypothetical — companies are dealing with this right now.
    • There is already some litigation on this subject, re virtual objects in WoW and Second Life.  Held to be copyrightable, and probably correctly so.  Only takes small amount of creativity, even in rendering of real or realistic objects.
    • But protection only extends to the creative aspects.  At what point will virtual objects become so utilitarian, and their designs so dictated by function, that the merger doctrine prevents copyrighting?
III.  Copyright Infringement & AR

    A. Reproduction. 
  • Software.  Most straightforward means of copying.  Industry is evolving rapidly, and I’ve spoken to several in the industry who complain that their software is being copied into the releases of others.  Common complaint throughout software world.  Already some litigation about how copying software beyond its Creative Commons license is infringement.
  • Panoramas.  Not AR per se, but it’s a tech that’s available now, and it shows how easy it is to sweep up copyrighted images when we make artificial reproductions of the world around us.  I’ve defended litigation that cost hundreds of thousands of dollars over images that appeared in the background of a movie or TV commercial for fractions of a second.  How much more would artists litigate over images in these virtual worlds?
  • Incidental copying.  Sometimes, in order to comment on an existing physical work, one needs to copy it digitally before augmenting it.
B.  Derivative works.
  • Remember, augment is defined to mean “Add to, alter”.  So by definition, AR alters the world around us.
  • Instaglasses example shows how AR “alters” our view of real-life objects.  What about when they are copyrighted objects?
  • Example – Daniel Suarez books.  Roy Merritt Burning Man statue.  Derivative work?  Probably not, since it’s an overlay.
  • What about reality filters?  Compare the video editing cases.  But there, new, redacted copies of the movies were actually made.
  • As virtual objects replace physical ones, will we create digital derivative works where physical copies would not have?  Whither the first sale doctrine?  Will our ability to manipulate digital objects depend on the scope of our license?
C.  Public display.
  • AR puts content into contexts for which it may not have been originally intended. The British Museum offers an iPhone app that displays historical photos in the exact physical location in which they were taken, allowing users to hold up their phones and view the photos in context.  Is this a public display that exceeds the museum’s license to display the photo on a wall?  By requiring a user to be in a particular public place in order to see content, do apps like this transform a personal, “private” viewing experience into a public display?
  • This may have content providers, revisiting old licenses, like publishers are now with internet republications.  They’re still having a hard time figuring out if they can reproduce written articles on DVD sets–how are they going to figure out augmented space?
  • User-generated content and social media will guarantee that works get publicly displayed in all sorts of unanticipated ways
D.  Public performance.
  • Similarly, AR will allow video content and animations to be performed in contexts unimagined when the content was created and licensed?
  • Hangover II case fought over whether tattoo was fixed, and whther it could be publlcly displayed on a person.  What if the tattoo digitally moved?
  • Case in point: the Nintendo 3ds uses a form of AR to display animations when its video camera recognizes a predetermined AR “marker”–a 2D, usually printed, symbol.  One man got such a marker tattooed on his arm, to allow the animation (here, a dragon) to be seen whenever someone views his tattoo through the appropriate device.  Is that a public performance of the animation?  Is it licensed?
E.  Moral Rights. 
  • VARA gives artist the right to prevent “intentional distortion, mutulation, modficiation” .  Only the physical AR will enable users to superimpose works of visual art onto any physical surrounding they choose–the ultimate mashup.  Will this violate the moral rights of artists?
  • Mona Lisa / Amar Baradarian example – obviously public domain, but shows what can be done digitally to artwork.
  • European coutries originated the concept of moral rights, likely to be much stricter.
IV.  Coping With AR
A.  Enforcement. 
  • Could pursue the old fashioned way, through litigation, like prior mass lawsuits.  AR could eclipse them all due to the infinite number of “channels,” just like content could now be located at any of an infinite number of URLs. Recall the Sight example, how anything was viewable anywhere.
  • But how do you find it when only the viewer can see it?  Will AR content be as searchable as the Internet? Currently, AR is a category of apps more than a cohesive network.  Access to any particular AR “realm” is much more balkanized than the web is.  How will rights owners know that their content is being used, much less how it is being used?   Think of AR channels as bit torrent sites that users can walk through, see, and touch.
  • Will open up all new avenues of “v-discovery”. Is it cached?  Where is it?  Where is it fixed?  Access to data alone may not be enough; will need to know perspective to determine how viewed.
B.  Licensing
  • All of these methods of viewing could be licensed.  Consider sync licenses.   They used to be easy — music to video.  But when anything can trigger content, any link can be licensed.
  • How else might revenue be generated?  Pay per view?   Literal paywalls?
C.  Fair Use.
  • All of these examples raise obvious fair use questions.
  • Plenty of examples of AR used for political speech, commentary, criticism.
  • What effect on the market value — and what “Amount of original work used” — when the physical object serves only as a trigger for digital content?  Nothing physical changes.  Analogous to a hyperlink.
  • Raises serious First Amendment argument–associating digital content with physical object is speech activity, and arbitrary expressive choice.
  • That’s distinct from altering digital works that are then displayed in physical format–that’s still subject to traditional fair use analysis.
D.  How will the Copyright Act change to cope?
  • The Internet brought us the DMCA, anti-circumvention protections, takedown notices, Napster- and torrent-induced mass litigation, and anti-streaming laws that have yet to be passed.  What legal changes will AR inspire?
  • The DMCA has evolved so that everyone is ISP.  Pinterest and other social media are breaking down the concept of incidental reproduction being infringment.
  • Interaction with the physical world is what makes AR unique.  So will it alter the meaning of “public display and performance”?

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