Innovate Articles

Augmented reality is poised to be one of the most important media platforms of this generation. In many ways, media’s AR evolution is inevitable. The ability to depict digital data and objects as if they are present in, and interactive with, the three-dimensional physical world—the defining characteristic of AR—customizes content in a manner for which our physical senses are optimized. Naturally, then, it is also the next frontier of intellectual property protection and enforcement. 

Patent litigation in the AR field has already been raging for years. Because AR capabilities in recent years have been limited to mobile phones and gaming devices, litigation over AR-related patents has been a logical outgrowth of the patent wars that have consumed the mobile device market. Nintendo, Sony, and HTC, to name a few, have already had to defend such suits. What’s more, almost an entire category of promising AR applications, called “virtual try-on”—which allowed consumers at home to use web cameras to “see” how clothing, jewelry, and other accessories would look on them before buying—has already been squelched as a result of a patent enforcement campaign by the non-practicing entity Lennon Image Technologies. At least one AR-related trade secret case has also already been litigated.

Most AR-specific IP disputes, however, will arise in the fields of copyright, trademark, and publicity rights, where articulating and defending against infringement arguments is always more of an art than a science.

The copyright questions begin with the extent to which AR content will be registerable. To be sure, the quantum of original expression necessary to qualify a work for copyright protection is low. But at least some “creative” AR content will be designed to either recreate, or to mimic and merge with, real physical surroundings so much as to not be distinguishable as digital. This calls to mind then-Judge Gorsuch’s opinion in Meshwerks, Inc. v. Toyota Motor Sales USA, Inc., in which he held that a 3-D digital recreation of an actual Toyota vehicle merely recreated an existing work in a new medium, and thus did not contain any original expression that could be copyrighted. That said, purely artificial worlds will not be denied copyright protection merely because they are realistic. 

As AR artists continue to use the physical world as their digital palette, potential copyright infringements will literally be all around us. Many of today’s AR apps, for example, work by recognizing a physical object or two-dimensional symbol, then animating that view before the user’s eyes to create the illusion that it has morphed into something else. Does this process infringe the right to create a derivative work of the object? The likely answer in most cases will be “no,” because—despite appearances that the object has been altered—it hasn’t been. It is merely an illusion caused by superimposing a digital view atop a physical one. In order to create the software necessary to cause the illusion, however, it may be that the physical work was copied and then altered—which may itself amount to an infringement in certain cases.

Questions of public display and performance will be raised as well. If the rationale of recent decision rejecting the “server test” catches on, for example, copyright owners may argue that depicting their works in AR form (if it makes them appear as if they are in a public space) is an unauthorized “public display” of their works. Similarly, many AR experiences will trigger certain content to be displayed or performed only in certain geolocations, even though the content only truly appears on the user’s mobile device (or, eventually, on their smartglasses). Can such displays and performances truly be said to be “public” in nature? 

Trademark and unfair competition issues will be even more diverse. For example, when virtual trademarks can be made to appear as if they are anywhere in physical space, superimposed on whatever may already be there, “false connections” between the virtual advertiser and the unwitting real property owner will abound. This may, in turn, fuel a likelihood of confusion amongst potential consumers as to whether or not the physical business sponsors the virtual advertisement. Then again, the circumstances in which the ad is displayed may dispel any reasonable likelihood of confusion. Today’s AR apps are single-purpose “walled gardens,” meaning that the user is more likely than they might otherwise be to know exactly who provides the content and why it is being displayed the way it is. As we move toward broader, more general-use AR platforms (like Facebook), browser-based content, or “always on” digital eyewear, customer confusion is bound to become more likely. 

Commercial AR content can also be triggered by specific physical objects. Picture a virtual advertisement for Burger King that appears whenever an AR user sees the Golden Arches. Call it “three-dimensional keyword advertising.” When this type of marketing becomes more commonplace, it seems inevitable that we will see a wave of litigation rivaling the search engine keyword cases that have persisted for the past 15 years. Individual people (most often, by means of facial recognition) will also serve as “triggers” for digital content—commercial and otherwise—and will also be depicted in various ways, raising issues that implicate the right of publicity.

However the AR ecosystem develops, new IP challenges await. The future may be many things, but it will not be boring.