Virtual reality (VR) is a unique puzzle in copyright infringement because of its relative newness—at least, compared to other copyright-protected materials. Despite that, we have a pretty good idea of the technology’s potential, as anybody familiar with the Enterprise-D’s holodeck can testify to. A television show, book, or sculpture is presented to the viewer as a 2-D image, but virtual reality arguably takes the viewer and places them into the world beyond the screen, allowing for a true 3-D experience. It is the difference, in short, between the augmented reality of Pokemon Go and the virtual reality of the Oculus Rift.

As virtual reality technology develops more, Federal copyright policy will likely evolve with it. Because VR is an “original expression” it is no doubt protected by copyright. However, the unique nature of virtual reality as a technology provides several important issues that game designers should consider when trying to avoid copyright infringement.

Can You Copyright the Holodeck?

Some federal courts have already begun defining virtual reality, with at least one describing it as “a computer generated three-dimensional immersive environment that allow[s] movement and navigation” in Lamson v. United States. Because of this, the Copyright Office’s definition of copyrightable material would include virtual reality content, under the heading of computer programs. So VR computer programs would be copyrightable in at least two different ways: first, in their audio/visual elements; and also in the mechanics of the world itself.

How Would Audio and Visual Copyright Work in Virtual Reality?

With regards to visual and audio aspects of expression, copyright infringement would at probably be largely the same. Legislation regarding copyright infringement in digital media already exists, and it is likely that the guidelines of reporting and notifying a digital user of copyright infringement would be largely the same. So the framework for reporting copyright infringement already exists. That said, is a virtual reality copyrighted image different from a 2-D copyrighted image? Would, for example, a picture that you can touch and turn over in a VR environment be sufficiently unique to have its own copyright from the original real life version? Likely not, because it would not rise to the level of being a sufficiently original expression. However, these cases of infringement are not yet clear.

Can You Copyright Gravity?

Probably not, but maybe! If you drop a ball in your virtual reality game (at least, one with gravity), presumably it will fall. If it did not, the virtual world created would not be realistic for the viewer. This separates VR from most other forms of media, because the mechanics of dropping something are tied to the actions of the viewer, as opposed to a television show where the viewer does not have the same impact. So in order to create a virtual reality experience, the mechanics of the VR environment are just as important as what the viewer is seeing, hearing, and even smelling.

A good example is touch. If virtual reality touch were to advance to the point that a unique method of touch were to fall within the definition of “original expression,” then the mechanics of that may fall within copyright, rather than a patent. Similarly, if somehow gravity was modified within a virtual reality setting in an original way, that expression of gravity could be copyrightable. Assuming that these new mechanics fall within the realm of computer programs, mechanics will likely make up the bulk of the issues in VR copyright infringement. So it could be possible that the literal look and feel of a game, not just its visual and audio works, could be protected from copyright infringement.

Conclusion

Virtual reality is a new and exciting development in copyright law, but that comes with dangers for independent game developers who may, knowingly or unknowingly, infringe on virtual reality copyright claims. For more information about avoiding copyright infringement as a virtual reality game developer, contact Revision Legal’s copyright attorneys through the form on this page or call 855-473-8474.

Image courtesy of the Knight Center for Journalism in the Americas, University of Texas at Austin via Flickr.

Practical Copyright Guidance for Virtual Reality Developers

The theoretical framework for VR copyright translates into concrete decisions that developers must make during the design, development, and distribution of their projects. Here is a practical guide to the copyright issues that arise at each stage.

Clearing Third-Party IP Before Development Begins

The single most common — and expensive — copyright mistake VR developers make is incorporating third-party content into their virtual environments without obtaining a license. This includes architectural elements that replicate real buildings with distinctive protected designs; music played within the virtual environment; characters or environments that closely resemble those from existing films, games, or books; and real-world art and sculptures still within the copyright term. Under 17 U.S.C. § 106, the copyright owner has the exclusive right to prepare derivative works. A VR environment that recreates a copyrighted building’s interior, or populates a virtual space with characters from a copyrighted work, is a derivative work that requires authorization.

Protecting Your Own VR Content Through Registration

VR content should be registered with the U.S. Copyright Office to preserve access to statutory damages and attorney’s fees in the event of infringement. Registration categories applicable to VR projects include computer programs covering source code, audiovisual works covering the rendered output of the experience, and literary works covering scripts and narrative text. A single registration may not adequately capture all of these elements; developers should consult with a copyright attorney to structure a registration strategy that maximizes protection across all copyrightable components of their project.

Work-for-Hire and IP Ownership in Development Teams

VR projects are rarely developed by a single creator. Studios, contractors, composers, voice actors, 3D modelers, and engine developers all contribute copyrightable elements. Without written work-for-hire agreements or copyright assignments for each contributor, ownership of the finished product may be fractured. Under 17 U.S.C. § 101, works created by independent contractors are only works for hire when the work falls into one of nine statutory categories and the parties sign a written agreement designating it as work for hire. A VR project’s original assets created by a freelance 3D artist will typically not qualify as a work for hire without a proper written agreement, meaning the artist retains copyright and you have only a license. All development agreements should be reviewed by a copyright attorney before work begins.

Licensing VR Content: Key Considerations

Many existing music, art, and content licenses were drafted before VR existed and do not clearly cover virtual reality distribution. Courts and licensors read license grants narrowly, meaning a license to use a musical composition in a video game may not extend to a VR experience distributed through an immersive headset platform. Critically examine the grant of rights in any existing license before deploying it in a VR context, and obtain VR-specific licensing terms in any new agreement.

DMCA Safe Harbors for VR Platform Operators

If you operate a VR platform that allows user-generated content, you face copyright infringement exposure from your users’ uploads. The DMCA’s safe harbor provisions (17 U.S.C. § 512) protect platform operators who do not have actual knowledge of infringement; do not receive a financial benefit directly attributable to infringing activity when they have the right and ability to control it; have a designated DMCA agent registered with the Copyright Office; and respond expeditiously to valid takedown notices. Maintaining safe harbor protection requires ongoing compliance — a DMCA policy that has never been updated, or a registered agent whose information is outdated, can cost you the protection when you need it most.

If you are developing a VR project and need assistance with copyright registration, work-for-hire agreements, or licensing strategy, Revision Legal’s copyright attorneys can help. Contact us through the form on this page or call 855-473-8474.