\u201cThere\u2019s an angry mob in the conference room!\u201d our new receptionist, Felicia, exclaimed. The mob turned out to be a troop of shaggy artists led by our old client Simeon, and fortunately they hadn\u2019t come to lynch us but to seek advice on a cutting-edge area of law and art: augmented reality, or AR. <\/p>\n
For those readers who are still groping around in the nondigital world, augmented reality is a means of using technology to enhance the real world with graphics, video, sound, or other computer-generated material.<\/p>\n
We were familiar with the use of AR by a number of forward-thinking museums. These institutions let visitors look through their video-enabled smartphones, tablets, or other mobile devices to see original artworks overlaid (or \u201caugmented\u201d) with virtual images. The actual artwork is not physically touched in the process.<\/p>\n
Simeon and his tribe weren\u2019t interested in using AR for conventional purposes. \u201cWhat are the legal risks of \u2018guerrilla hacking\u2019 a museum using the technology?\u201d he asked.<\/p>\n
Simeon\u2019s group had been inspired by several guerrilla hackings at the Museum of Modern Art in New York. In 2010, artists Sander Veenhof and Mark Skwarek encouraged MoMA visitors to use the smartphone app Layar to view virtual works in the museum, including a floating Berlin Wall and an exhibition on the museum\u2019s \u201cnew\u201d seventh floor \u2014 which doesn\u2019t exist in real life. Then, in 2014, performance artist Adam Weinert used AR to stage a virtual choreographic performance of ghostly dancers inside MoMA.<\/p>\n
\u201cAny problem using the museum\u2019s Wi-Fi to stage such a virtual show?\u201d piped up Micky, another artist in the band.<\/p>\n
\u201cPossibly,\u201d we explained, \u201csince accessing the Internet through the museum\u2019s computer equipment without permission could be considered trespassing, even if you don\u2019t monkey around with the Wi-Fi operator.\u201d<\/p>\n
\u201cWe intend to virtually modify a portrait of the museum\u2019s greediest trustee \u2014 an investment banker,\u201d chimed in little Davy. \u201cWe\u2019ll turn him into a hairy chimp.\u201d<\/p>\n
That sounded very familiar. We recalled that the artist BC \u201cHeavy\u201d Biermann had tried something similar in 2011, when he used AR to transform the face of Captain Barbossa, depicted on the poster of the movie<\/p>\n
\u201cPirates of the Caribbean: On Stranger Tides,\u201d into that of another \u201cpirate\u201d: Goldman Sachs CEO Lloyd Blankfein.<\/p>\n
We suggested that augmentation of the museum trustee in this fashion could be considered libel and might be legally actionable by the unhappy banker.<\/p>\n
\u201cHey, hey!\u201d protested Peter, the goofiest artist in the group. \u201cWe\u2019re no monkeys! We believe this is an act of free speech, protected by the Constitution!\u201d<\/p>\n
\u201cPerhaps,\u201d we replied, \u201cbut do you want to spend your last nickel defending that position in court?\u201d<\/p>\n
\u201cWhat about creating an AR experience where visitors who view the logo of the trustee\u2019s bank through their iPhones suddenly see King Kong ravaging the planet?\u201d continued Simeon enthusiastically.<\/p>\n
We replied that something along those lines had been done in 2010, with the iPhone app The Leak in Your Home Town. In that AR experience, as viewers looked at a BP logo through their mobile device, a superimposed image of a broken pipe leaking oil evoked the BP spill in the Gulf.<\/p>\n
\u201cWhat\u2019s the legal risk of augmenting a corporate logo?\u201d asked Davy.<\/p>\n
\u201cTrademark dilution,\u201d we replied. \u201cYou face a claim that you tarnished or weakened the company\u2019s mark. On the other hand, you might have a good free speech argument here \u2014 especially if you were engaging in political speech.\u201d<\/p>\n
But again, we asked if the group wanted to risk the expense of testing this theory in court, especially with a well-funded bank on the opposing side.<\/p>\n
\u201cAnd if we sold T-shirts printed with the trustee\u2019s face enhanced through AR?\u201d Simeon continued.<\/p>\n
\u201cIf you\u2019re profiting from his image, you could be breaching his right of publicity,\u201d we explained. \u201cThirty-one U.S. states allow people \u2014 famous or not \u2014 to control commercial use of their identity. But here, again, you might argue that your speech is simply protected by the First Amendment.\u201d<\/p>\n
The Supreme Court highlighted the importance of online speech in the 1997 decision Reno v. ACLU, which struck down part of the Communications Decency Act of 1996 as infringing free speech rights, reasoning in part that in an online world, any person \u201ccan become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of web pages, mail exploders, and news-groups, the same individual can become a pamphleteer.\u201d<\/p>\n
Peter next asked if the group could use AR to virtually modify the background of a particular painting in the museum \u2014 for instance, by adding the phrase \u201cTHIS PICTURE IS BANANAS!\u201d<\/p>\n
Although we thought this was an interesting artistic commentary, we cautioned that this type of modification could run the risk of copyright infringement. Federal law provides that only the copyright holder of an original painting has the right to make a \u201cderivative work,\u201d meaning changes, additions, and variations to the original. This is assuming that the original copyright holder has not sold or given away the copyright and that the copyright has not fallen into the public domain. This would not apply, for example, to Old Master paintings, which are out of copyright.<\/p>\n
\u201cSo there is no way to modify a contemporary painting without the copyright holder\u2019s permission?\u201d persisted Peter petulantly.<\/p>\n
\u201cPerhaps there is,\u201d we replied. The most obvious defense to this type of claim of copyright infringement is an assertion that the augmentation was \u201cfair use,\u201d meaning that the artist had used the copyrighted painting for purposes such as criticism or comment.<\/p>\n
\u201cSeems like a pretty vague standard,\u201d Peter pouted.<\/p>\n
He was right. The courts have not clearly defined fair use, so relying on it as a defense is as risky as swinging from a vine.<\/p>\n
\u201cWould we be infringing on an artist\u2019s copyright if we simply associated the artwork with a virtual image?\u201d asked Simeon.<\/p>\n
We thought not, since they would not be reproducing or modifying the original \u2014 merely linking it digitally to another image. But we qualified our advice by noting that, since AR is so new and because there is so little case law in the area, it\u2019s hard to predict how copyright law will be applied to it.<\/p>\n
We also cautioned Simeon that if his group virtually modified a painting, the original painter could try to make a claim under the Federal statute called the Visual Artists Rights Act of 1990, commonly referred to as VARA. This law permits artists to prevent the intentional distortion, mutilation, or modification of their work.<\/p>\n
Davy followed up: \u201cIf we virtually augment an artist\u2019s work by adding original images, could we copyright our new virtual content?\u201d<\/p>\n
We answered yes \u2014 although the claim\u2019s strength would depend on how much originality was involved in creating the new content.<\/p>\n
Simeon had one final question. \u201cDoes it matter if the sponsor of our exhibition is an oil company that directly competes with the museum trustee\u2019s corporation?\u201d<\/p>\n
\u201cYes,\u201d we said, \u201cbecause that may give your virtual exhibition a seemingly commercial purpose.\u201d Commercial \u201cspeech\u201d (even in the form of artwork) receives less legal protection than other speech.<\/p>\n
Peter looked at his watch and jumped up. \u201cWe don\u2019t want to miss the last train to Clarksville,\u201d he proclaimed. Felicia looked relieved; she obviously didn\u2019t like having guerrillas in our midst.<\/p>\n