Does Augmenting Art Infringe Its Copyright?

As I’ve written about before, artists and entrepreneurs have already found various creative ways to interact with physical artwork through augmented reality.  The Public Art Project, for example, sponsored a campaign that allowed various artists to digitally superimpose their own messages on billboards and other commercial advertising.  A related project recognized the face of a pirate captain in the poster for the movie Pirates of the Caribbean 4, and caused it to morph into the face of Lehman Brothers’ president–“the real pirate,” according to the artist.

But how does copyright law apply to all of this?  To my knowledge, no one has raised copyright objections to these specific examples, and I’m not suggesting that anyone should.  But it’s an important question to consider now, because this sort of augmented substitution is only going to get more commonplace in the very near future.

Let’s start by describing exactly what copyright does and does not protect.  Any tangible work containing even a modicum of original, creative expression qualifies for copyright protection.  That includes visual art, sculptural works, photos, movies, and the like.  Section 106 of the U.S. Copyright Act gives authors the exclusive right to control five specific uses of their works: the rights to reproduce, distribute, publicly display, and publicly perform it, and to make derivative works of the original.

In the specific factual context that we’re considering here–i.e., using static, physical displays to trigger an augmented experience on a user’s mobile device–the rights of distribution, public display, and public performance don’t seem likely to come into play.  The original work is already being displayed; the augmented content doesn’t change that, nor does it further distribute the image.

How about the rights of reproduction and derivative works?  Those issues are a little more nuanced.  In the typical “augmented substitution” scenario, in which content on a mobile screen simply overlays or complements the existing work, no infringement is likely.  That’s because the digital content isn’t actually doing anything to the original work.  It’s not making a copy of or altering the original.  Even though the physical display acts as a trigger for the digital content, and even though the user’s mobile device causes the digital content to appear as if it exists in the real world in place of the original, it doesn’t actually exist there.  It’s an effective illusion for creating an immersive experience, but it’s an illusion nonetheless.  The content stays on the mobile screen, where it is a separate digital work that exists apart from the physical display.

But the question gets more complicated when the digital content actually makes the physical display appear to morph.  That’s because. more likely than not, the AR software has already stored a copy of the original and altered versions of the physical work in its memory.  In other words, the programmer may have created a reproduction and a derivative of the physical work long before anyone uses the program to interact with the physical artwork.

As an example consider this AR content called “Italicizing Mona Lisa.”  It is designed to display on your phone as you hold it up to a physical version of the iconic painting, creating the illusion of animation in the painting:

Italicizing Mona Lisa by Amir Baradaran from Amir Baradaran on Vimeo.

In order to create the illusion of movement in the physical painting, the AR programmer first reproduced the artwork, then created a digital alteration of it.  That doesn’t raise any copyright concerns here, because Mona Lisa has long since passed into the public domain.  But artists who digitally copy and morph copyrighted works are taking a risk.

Of course, that isn’t the end of the analysis.  A number of defensed could potentially apply in any given case, most notably the defense of fair use.  But that’s a fact-specific defense that applies on a case-by-case basis.  Certain legal principles may very well develop in the near future that apply generally to all AR uses of physical works (and I’ve certainly got my own ideas about what those principles should be, which I’d be happy to discuss with you offline), but exactly how that will play out remains to be seen.

What is certain is that using mobile devices to augment two-dimensional printed content is a business that’s getting a lot bigger, so these are issues that a lot of companies will be encountering very soon.

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