It’s seeping into our lives through burgeoning phone and tablet computer apps, in products targeted to help those with physical challenges, via videogames and, yes, of course, in some movies, notably porn productions. Unlike some other computer-based technologies, however, “augmented reality” or AR combines the virtual atop a real base (as visualized, left, in the Raygun Studio illustration), and, thus, may present some new and intriguing copyright infringment issues.
Does the underlying creative material, which must copied and stored in the AR software before augmentation, fall into the “derivative work” copyright category, meaning it generally requires a license to the original work before creative work may be done on it (unless the original work permissibly may be used because it is in public domain or the user enjoys a fair-use defense)?
Copyright law, it appears, will play a big role in AR, as it does in other media, where the author of creative content licenses others to reproduce, distribute, alter, publicly display or publicly perform that content. AR users, however, hope to expand their technology even further into the commercial world by taking everyday images and and turning them into informative, interactive pieces, layering them with video, graphics and other content or information.
While there are few case precedents for this technology now, Sherwood 48 Associates v. Sony Corp of America, a 2002 case, offers some insight. The court in this instance found no infringement for digital displays of ads in movie (From the opinion and order: “This case involves defendant Sony’s 2002 motion picture Spider-Man. To make the scenes in question, Sony took a number of digital pictures of the total surroundings in the actual Times Square, which included the plaintiffs’ three buildings, and then, through digital technology, created its modified version of Times Square in which to place the action in the scenes in question”). Here, the court found that artists may digitally alter nonpermanent advertisements, provided that such changes primarily serve the creative aspect of their work.
Though this case provides a glimpse into AR’s legal future, its implications could be harsh. What if the AR manipulated image is a movie poster or a copyrighted art work? “Contributory infringement” exists in U.S. law when an individual intentionally causes others to infringe copyrights; AR could become part of future legal battles as it moves to the mainstream. Brian Wassom, an attorney who is fast becoming a go-to expert on AR, explores these issues on his blog, Augmented Reality.