Infinity Festival Hollywood 2019

What does the future of technology mean for content production and consumption?

While we are focused on media companies merging into massive conglomerates dominating content production and competing to become the top OTT (over-the-top) proprietor striving towards becoming the most successful SVoD (subscription video-on-demand) provider, innovators and futurists are much more concentrating on the development and incorporation new technologies expanding opportunities for storytellers.

Virtual Realities are virtual, three-dimensional worlds in which we can fully immerse ourselves by means of devices like headsets and tracking sensors that create the feeling of being physically present in the computer-generated world.

The Festival

When you talk to industry professionals you quickly get the impression that VR and AI technologies will become bigger over the next few years and in about 3 years the technology will be at a point to successfully market VR content consumption to the broader masses. Futurists in particular are focused on finding the next big trends and new ways of immersive storytelling. No one in Hollywood wants to risk to miss out on monetising their IP in original and new mediums, therefore companies are investing time and money in their research and development teams. AR/VR market forecast for 2022 is $209.2 billion and everyone involved prepares to secure a slice of the pie.

VR Experiences

Forbes recently wrote about the players in the VR industry naming the most prominent companies concentrating location-based entertainment (LBE). The article I refer to also mentions VOID which collaborates with Sony Pictures on a VR experience of the new feature Jumanji: The Next Level, called Jumanji Reverse The Curse. This will provide the audience a fully immersive VR experience. In other words, visitors will transform into the very characters from the movie and experience the multi-sensory physical stage including touch and smell to provide a fully interactive participation within the story.

One of the most stimulating panels I saw was titled: “How New Stuff Gets Done – Hollywood Digs Into Immersive Content”. Momentarily, the technology isn’t as far advanced to make VR experiences marketable for the masses. Most experiences require a certain space to be provided, that could either mean the room must be big enough or various props are around to set the stage for a fully sensory experience which includes smells and feeling the air breeze for instance.

During the panel titled “How New Stuff Gets Done – Hollywood Digs Into Immersive Content, Ted Schilowitz, futurist at Paramount Pictures, provided that tech companies will work on “recreational rooms”. Those areas will be provide the opportunity to remove furniture and convert the space into a VR concept room at home. Besides having a “free of furniture and pets” zone, floor surfaces, placing mounts for the hardware into walls or ceilings must be taken into consideration, as well as equipment for a fully sensory experience.

Jake Black adds his prognosis that until VR systems become “home-appropriate” that can be furnished to please the masses it will be difficult to engage a broad range of consumers in emerging themselves virtual realities.

Recommended Resource

FYI: For anyone more interested in the topic, there is a great podcast to check out: Tech Cat, which is hosted by Lori H. Schwartz.

IP Laws & AI

In general, there is no doubt that Augmented Reality (AR; also known as Mixed Reality only supplements the real world, e.g. Pokemon Go, Camera360), Virtual Reality (VR; e.g. Oculus Rift, HTC Vive), and Artificial Intelligence (AI) systems will greatly impact IP standards and test legal systems and policies that are in place at the moment.

AI programs, for instance, are already capable of “creating” works of authorship using facial recognition and 3D printing techniques to generate art. This is an issue because since the monkey selfie case the courts have clarified that only actual humans can be categorized as authors. However, the threshold level of how great human input is required is not yet settled.

The 3 main legal issues that will potentially arise are described below and will help mitigate the risk to stumble into legal nightmares and that could eradicate profitability for the new technologies and their applications.

1.) Intellectual Property taken from real like and replicated in the virtual world
VR softwares that allow for lifelike experiences simulating the real world create certain trademark and copyright related issues when brand names and logos are virtually inserted into the programs.
There are no specific laws on VR yet, but the fast development of VR technologies and increased usage will require existing IP laws which are still in force to evolve and adapt as well. Thus, using protected works in VR could lead to liability exposure if the appropriate rights haven’t been licensed as they would be determined an infringement on trademark and copyright holders’ IP.

TRADEMARK INFRINGEMENT: If a consumer reasonably believes that an unauthorized company marketing the VR product was the source of the goods or endorsed the goods, liability issues may arise.
However, a trademark infringement claim under federal law requires a plaintiff to establish that the defendant used the same or similar mark “in commerce” when selling or advertising the goods or services without the plaintiff’s consent.
Apart from the “use in commerce” prong, proving damages from the use of IP in VR could be a potential threshold to an infringement claim. If the sale of the tangible “real world” goods isn’t affected by virtual goods it could be difficult for the trademark owner to show damages. This issue can be avoided by inclusion of provisions in the license agreement that specifically allow the VR platform operator and its consumers to use the trademark virtually under certain limitations.

COPYRIGHT INFRINGEMENT: US federal copyright law gives the copyright owner the exclusive right to reproduce, distribute, perform and prepare derivative works that are based on the underlying protected work of authorship. The fair use doctrine is an exception to that rule and states that a third party would still be allowed to use the copyrighted work if 4 factors weigh in their favor. Here, the most determinant factor for fair use will be that the underlying source material has been sufficiently transformed in the VR world so that it is considered an original work of authorship that itself is protected.
Under the Digital Millenium Copyright Act (DMCA), copyright owners can also go against VR platform operators for secondary liability when their users commit infringement. VR platform operators must take down the infringing content when they receive specific notice of the unauthorized use to escape liability.

2.) Virtual IP used in the real world
IP infringement may also arise when virtual IP is used in the real world without permission of the right holder.

3.) Rights of Publicity
Where state law or common law of the right of publicity is recognized, commercial appropriation of someone’s name, identity, likeness, or persona can not be used without that person’s consent. This also goes for viral marketers or companies making any commercial use of an individual’s publicity rights in the virtual realm.

Since VR technologies are in early stages of development and application there isn’t much case law out there yet. We’ll see what the future will bring!