IP Theory in an Augmented Reality
“May you live in interesting times.”
- Anonymous Chinese “Curse”
We have printed alternate realities in paperback and painted alternate realities on canvas. We have projected alternate realities on the small screen and the big screen—blasted alternate realities on the radio, immersed in alternate realities via the game console and on the Internet. Now, with the advent of wearable Augmented Reality technology, we may have the chance to see these parallel universes come to overlap. We certainly live in interesting times.
As implied in the quote above, however, “interesting times” may signify a gift and a curse. In this case, the gift of new technology comes with the curse of uncertainty in our laws and in our societal norms. With this paper, I aim to (1) identify select areas of the law that may be particularly affected by augmented reality applications, (2) pose hypotheticals that portray the complexity of these issues, and (3) recommend judicial outcomes that are consistent with the predominant theoretical foundation for that particular intellectual property right.
B. What Is “Augmented Reality?”
Augmented Reality (“AR”) is best understood not as a discrete technology in and of itself, but rather as a convergence: superimposing virtual elements of “ubiquitous computing” over a physical realm we experience through our natural senses. Though it often represents a futuristic trope or plot device in Hollywood, AR technology has actually progressed to the precipice of widespread practical adoption. As a result, its accompanying implications to our laws and societal norms have become much more pertinent.
To understand these implications, however, we must understand the evolution of AR technology and how each implementation can lead to differing analyses.
1. AR Markers & Nanotaggants.
Currently, the easiest and most common method of displaying AR is via Quick Response (“QR”) codes otherwise known as “markers.” These are the two-dimensional “matrix” barcodes that, when scanned, unlock some form of digital content. Markers have been utilized on several types of surfaces including billboards, movie posters, restaurant windows, business cards, etc.
“Nanotaggants” are essentially tiny RFID chips--permanent and invisible to the naked eye. When used as a marker, nanotaggants obviate the visible matrix barcode and can still display AR elements to a user via a smartphone app or wearable AR technology.
2. Smartphone & Tablet Apps.
As smartphones have evolved into technological Swiss Army knives, they have become natural candidates to help visualize AR elements. For example, the online review company Yelp’s smartphone app has a feature called “Monocle” that overlays restaurant logos and reviews on its camera view. Similarly, there are iOS and Android apps that use the smartphone camera’s display to identify constellations by “connecting the dots” on screen and relaying information about that particular constellation. This is all possible because multiple technologies within the phone interact to display AR elements properly (i.e. GPS, the compass, and the camera).
The main problem with using smartphone apps to display AR is that the form factor is inconvenient. The user must hold the phone in front of them far enough to watch where they’re going, but close enough to read any of the AR content on the limited screen. Note, however, that early iterations of wearable computers (e.g. Google “Glass”) require pairing with an Android smartphone anyway.
3. Wearable Computers, “Glassware,” and beyond
Wearable computing technology is the next logical step from smartphone displays because it eliminates the inconveniences of (1) having to hold a device, and (2) the limited range of screen space that can display AR elements. The resulting problem has always been how to cram enough computing power into a set of glasses. Enter Google.
The most obvious reason why AR has enjoyed a renewed wave of interest lately is because in April 2012 Google began testing “Glass,” a wearable computer with an optical head-mounted display. Much like a smartphone, the Glass hardware includes a gyroscope, accelerometer, and an internal compass. It also has a five-megapixel camera that is capable of recording video in 720p quality.
As of October 2013, Google Glass is limited to a select user base dubbed “Glass Explorers,” many of whom are software developers looking to get a leg up on testing their ideas and writing apps for Glass, also known as “Glassware.” Beyond those select few, there have been numerous proof-of-concept videos garnering significant attention on the Internet.
Despite its somewhat cringe-worthy name, “Glassware” development may be the final catalyst needed to spark widespread adoption of wearable computers (and by extension, access to an Augmented Reality). There are most likely some life-changing innovations bubbling in the creative cauldrons of Glassware developers. There are also likely some ideas that will muddy the waters of current intellectual property law. It is that proverbial mud and muck to which I devote this paper.
C. Scope of the Paper (re: Privacy, Patents)
The potential widespread adoption of wearable computers raises several privacy concerns and legal questions, mostly due to the devices’ ability to capture high definition pictures and video. If someone wanted to accomplish the same thing now, they would have to carry some sort of camera in front of their face non-stop and actually look through a viewfinder while they are walking around. This is not practical and more importantly, not socially acceptable. Consider that momentary rush of mild frustration when you turn around and someone is pointing a camera at you--mentally calculating what you’re wearing, how you look, or whether this could end up on Facebook or Instagram without your permission. It is an annoying feeling that could easily become worse with everyone walking around with video-enabled eyewear.
The difference between this hypothetical and Glass is that it is ridiculous to walk around peering through a viewfinder, whereas it is socially acceptable to wear glasses all the time--maybe not Google Glass yet, but there is also word that Google might partner with eyewear manufacturers like Ray Ban and Warby Parker to bake the technology into more conventional or stylish designs. Once people are used to AR, are we going to pass laws prohibiting use in certain areas? Once the technology is baked into more conventional-looking glasses, will it be noticeable enough to enforce anyway?
These are valid questions that deserve fleshing out, but for now I will leave them for someone else. Instead, this paper will focus on the implications of AR technology on intellectual property law—and especially, Copyright and Trademark Law.
2. Patent Law
With this paper, I am attempting to predict how the widespread adoption of AR technology will create messy legal questions with respect to particular IP rights. As a body of law that focuses and specializes on protecting novel ideas, patent law is in a uniquely advantageous position to follow its regular structured analysis to determine the proper scope of protection. I believe the question of whether a certain AR element should or should not be patentable is best left to this process, and will focus on other IP rights.
II. AUGMENTED REALITY & COPYRIGHT LAW
A. Theoretical Foundations of U.S. Copyright Law
In a society where a floppy disk seems laughably antiquated, it may be easy to forget that the theoretical foundations of U.S. copyright law were built centuries before our “outdated” technologies were even conceivable. Johannes Gutenberg invented the printing press midway through the fifteenth century and ever since, we have seen differing views developed as to how and why we should grant exclusive rights to the resulting intellectual creations.
1. England & the Statute of Anne
Though monopoly rights on printing were originally granted for political convenience, England eventually evolved to follow a more utilitarian theory.
The first right resembling a copyright is said to have been granted in England by royal decree in the late 1550s. See Merges, Menell & Lemley, Intellectual Property in the New Technological Age 431 (6th ed. 2012). Perhaps showing their motives, the Crown granted the exclusive rights to the printers of the Stationers’ Company, not the authors—presumably so they could confer the rights to loyal supporters. Id.
Once the Stationers’ Company’s exclusive rights expired, Parliament passed The Statute of Anne, which gave the authors a temporary monopoly over their works. Id. This new statute was definitely more utilitarian in that it (1) incentivized intellectual creation by authors through exclusive rights, yet (2) fostered a public domain by limiting those rights via terms and complex formalities for registration.
2. France & the Continental Approach
In contrast to the [English approach], the continental approach treats the works of an author as a fundamental moral right. French copyright law developed soon after the French Revolution. As the late Henri Desbois, a leading French copyright theorist, explained it, “[t]he author is protected as an author, in his status as a creator, because a bond unites him to the object of his creation. See Jane C. Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary France and America, 64 Tul. L. Rev. 991 (1990)(citing H. Desbois, Le Droit D'Auteur en France 538 (3d ed. 1978)).
Since this approach seeks to preserve the natural “bond” between the author and his or her intellectual creation, its accompanying body of law has responded with particular exclusive rights. Most commonly, these “moral rights” include:
(1) the right to decide if and when to divulge the work (“disclosure”);
(2) the right to compel recognition for his or her work (“paternity”);
(3) the right to prohibit modification or distortion of the work (“integrity”).
See Roberta Rosenthal Kwall, Copyright and the Moral Right: Is an American Marriage Possible? 38 Vand. L. Rev. 1, 5-16 (1985).
Though the continental theory’s author-driven approach has been cast as fundamentally at odds with England’s more utilitarian approach, some argue that this contrast is often exaggerated. See Ginsburg at 991.
3. U.S. Approach
For the most part, U.S. copyright law follows the utilitarian approach in the Statute of Anne tradition. After all, the Constitution gave Congress the power to enact copyright laws so as to “promote the Progress of Science and useful Arts.” See U.S. Const. Art. I, § 8, cl. 8. Justice Stewart noted that “the immediate effect of our copyright law is to secure a fair return to an “author’s” creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.” Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).
Justice Stevens echoed this utilitarian reasoning in the famous Betamax case, explaining that the limited monopoly is “intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.” Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984).
B. Potential Problem Areas
1. Satisfying Statutory Requirements
Despite some interesting conceptual questions about fixation in augmented reality, AR software likely satisfies the requirements of Section 102.
Copyright protection subsists in “ original works of authorship  fixed in any tangible medium of expression . . . from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” (emphasis added) See 17 U.S.C. § 102.
a. AR Elements Satisfy Section 102’s Originality Requirement
Questions of proper scope notwithstanding, most AR visual elements should easily satisfy § 102’s originality requirement. The likelihood of satisfying this requirement depends, however, on the technological implementation of the AR visual elements in question.
As applied to copyrights, originality “means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.” Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 345 (1991). “[T]he requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, ‘no matter how crude, humble, or obvious’ it might be.” Id.
In the case of AR, we are dealing with (1) how the AR visuals look to the user, and (2) how the source code reads. It will not be hard to claim originality in the expression of the AR visuals, since that almost always requires some direct or indirect artistic decisions.
b. AR Visuals Satisfy Section 102’s Fixation Requirement
The fixation requirement does not present any major challenge to AR software either.
The fixation requirement stems from the Copyright Clause of the Constitution, which limits protection to the “writings” of “authors.” See U.S. Const. art. I, § 8, cl. 8. The Supreme Court has construed this language more loosely over time, noting that it “may be interpreted to include any physical rendering of the fruits of creative intellectual or aesthetic labor.” Goldstein v. California, 412 U.S. 546, 561 (1973).
In this case, the “fruits of creative intellectual labor” reside in the unique aspects of the software code. The “physical rendering” is that the code is stored in the computer and perceived via the small screen (i.e. the optical head-mounted display). The difference between this and say, a game console, is that the rendering here displays on a clear lens that allows the user to see the visuals laid over the physical realm. For these reasons, AR software is likely to satisfy the requirements of § 102.
2. Distinguishing Function and Expression
While creativity and fixation dictate relatively simple legal analyses as applied to AR, determining whether something is a protectable expression or a non-protectable idea is no easier with AR than it is for any other type of content. As Judge Keeton once said, “It seems the better part of wisdom, if not valor, not to press the search for a suitable bright-line test of copyrightability where Learned Hand, even after decades of experience in judging, found none.” Lotus Development Corp. v. Paperback Software Intern., 740 F.Supp. 37, 60 (D. Mass. 1990)(referencing Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 427 (2d Cir. 1960). Attempting to draw this line is important, however, because they help us keep track of whether we are staying true to the utilitarian philosophy underlying copyright law.
Given the ad hoc approach courts will take to these questions, it may be helpful to draw a meaningful distinction between what I call “functional” AR and “escapist” AR. With a better understanding of these styles, we can better imagine how competitors might try to use a copyright to protect their ideas rather than the expression of such ideas.
For these purposes, I am defining “functional AR” as AR elements whose main purpose is to make physical reality more convenient (e.g. temperature, traffic, directions). In contrast, I am defining “escapist AR” as AR elements with the purpose of exploring an alternate reality.
Judging by the upcoming Google Glass hardware, I believe we are much closer to seeing functional AR than escapist AR. First of all, the intrinsic nature of Google Glass’s hardware ensures a limited number of ways to express these ideas. This is because the eyewear does not utilize a visor or lenses that cover each eye and feature a display similar to the Terminator’s or Iron Man’s. Instead, there is a small rectangular display housed in front of the user’s right eye.
This limited real estate on the device’s display ensures that there are only a limited number of ways that a developer could differentiate between an expression and an idea. As a result, many of these should be denied copyright protection, or at best given thin copyrights that only cover egregious exercises of copying. This is consistent with the utilitarian theory underlying U.S. copyright law because it leaves the protection of ideas to patent law, which has mechanisms to benefit society via disclosure and a more limited term for monopoly rights.
As AR devices evolve to have bigger screens (e.g. iPads) or eyewear with larger screen area, we will most likely also see more robust styles of displaying AR content. As stated above, the content displayed on AR eyewear like Google’s Glass is constricted to a box in the upper-right hand quadrant of the user’s range of vision. With more screen area and computing power, we could eventually see AR visuals that layer over their surroundings directly. The advancement of this type of AR seems most suited to spark a creative revolution of escapist AR that has a wider scope of copyright protection.
There are some early videos of developers attempting this style of AR using an iPad—for example, one concept video shows a man in a real cemetery walking up to a set of gravestones. When the user looks “through” his iPad display, he sees not only the gravestone but also a vivid black & white illustration of the witches from Shakespeare’s Macbeth right next to it. The witches recite a set of lines that loops after a set duration. Bull, Steve. "AR SoundScape Proof of Concept – June 2012" 20 June 2012. Online video clip. YouTube. Accessed on 12 October 2013. < http://www.youtube.com/watch?v=nDuymUZGGsQ>.
The most interesting aspect of the concept, however, is that the user can turn to the left and begin walking toward a different group of AR witches while the prior group stays put. This enhances the immersive nature of the content by creating a more “realistic” version of an alternate reality. In other words, the minor inconvenience of having to walk around to inspect and observe actually lends credibility to this “alternate” reality because we must walk around to do the same things in our everyday physical reality.
This style of “escapist” AR has great potential, but right now the execution is flawed and primitive because the visuals are jittery and seem to float around—this puts a damper on the illusion and snatches the user back out of the “alternate” reality. Perhaps a developer could invent a way to “clamp down” the AR visual elements through the use of invisible markers (some have done it with visible markers). If so, they would have the opportunity to create truly immersive fictional or nonfictional content. Given the significant creativity to develop one of these immersive storylines, the author/developer should be granted a strong copyright. This would incentivize the creation of more immersive content.
3. AR Developers Scraping Data to Feed Into Software
The ability to plop convenient data into a user’s range of vision will undoubtedly tempt developers to download data from competing services’ feeds and use it for their own creative purposes (i.e. “scraping”). We have seen this issue bubble up recently with real estate listing services, which have become deeply concerned with data scraping by competing multiple listing service (“MLS”) websites. These database owners make their money by charging participating brokers and agents for access—if someone threatens this information asymmetry they harm the MLS’s revenues and will likely end up in court for copyright infringement.
The scope of protection, however, is currently being fought in court. The listings in question often consist of generic textual descriptions so there is a real question as to whether copyright is applicable in the first place. A district court in Minnesota considered this question of scope in Regional Multiple Listing Service v. American Home Realty Network, 0:12-cv-00965-JRT-FLN (D. Minn. Sept. 27, 2012).
In RMLS, the controversy centered on photographs, “agent remarks,” and “field descriptors” allegedly scraped from RMLS’s “NorthStarMLS” database and filtered into defendant’s NeighborCity.com. The agent remarks were more like narrative puff pieces, while the field descriptors conveyed extremely generic information about the houses. Ultimately, the court refused to grant protection to the field descriptors on the basis that they were insufficiently original to warrant protection.
It is not hard to imagine this same situation playing out with AR software. Imagine that defendant AHRN developed an augmented reality application that functioned much like NeighborCity.com, but instead recognized the particular house via the AR eyewear and GPS coordinates. The AR app could then be displayed in the box in the upper-right corner of the head-mounted display. Should they be blocked from this if they got the data somewhere else?
The database owners are, to some degree, making a sweat-of-the-brow argument that was roundly rejected in Feist. If they are able to copyright this type of generic data, it becomes more of a pseudo-patent right than a copyright. To stay within the bounds of utilitarian theory underlying copyright law, courts should strike down these types of overreach and require the typical analysis for originality under § 102.
III. AUGMENTED REALITY & TRADEMARK LAW
A. Theoretical Foundations of Trademark Law
A trademark is not a property right in gross. See United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 97 (1918). Much like U.S. copyright law, U.S. trademark law is often justified on utilitarian principles. But instead of benefiting society by incentivizing novel ideas or expressions, a trademark is meant to benefit society by “identify[ing] the origin or ownership of the article to which it is affixed.” See Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 412 (1916). This is commonly thought to serve a few distinct purposes: to (1) “reduce the customer’s costs of shopping and making purchasing decisions,” and (2) “help assure the producer that it . . . will reap the financial, reputation-related rewards associated with a desirable product.” See Qualitex Co. v. Jacobson Prods. Co. Inc., 514 U.S. 159, 163-164 (1995).
As a result of its aims, trademark law is inherently part of a broader effort to find an optimal degree of regulation on competition in the marketplace. The true “optimal” level is obviously subject to heated debate, but generally courts have praised free competition. Justice Black has described how free competition benefits society:
“. . . unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress, while at the same time providing an environment conductive to the preservation of our democratic political and social institutions.
Northern Pac. Ry. Co. v. U.S., 356 U.S. 1, 4 (1958)(discussing competition with regard to the Sherman Antitrust Act). Under this premise, the objective of trademark law is to benefit society by ensure the maximum amount of free competition, so long as the competitors’ behavior is not counterproductive by misleading or deceiving consumers.
B. Predicted Problem Area
1. Which AR Tactics Constitute an Improper “Use of Another’s Trademark?”
Given the capability to recognize distinct shapes to trigger content, Google Glass and AR technology generally create some interesting hypotheticals in which companies could “use” their competitors’ trademarks for advertisement purposes. First, could Google drive ad revenue by selling ads triggered by recognition of a competitor’s mark? Second, Could a company use AR to recognize a competitor’s mark and trigger a coupon pop-up ad on its own app? At this point, the answers to these questions are likely “no.”
A proper case for trademark infringement must show that the defendant used the mark in commerce. See 15 U.S.C. § 1127. In the Internet context, courts have held that selling or purchasing trademarks as Internet search engine keywords is a “use in commerce” actionable under the Lanham Act. See Rescuecom Corp. v. Google, Inc., 562 F.3d 123 (2d Cir. 2009).
The action mentioned in the first question above seems to violate the rule in Rescuecom clearly--if Google were to try and sell ads triggered by trademark recognition, the court would likely find an actionable “use in commerce” because the only difference is basically mark triggers versus keyword triggers. As for the second hypothetical, let’s consider a variation on a (somewhat creepy) hypothetical that has been floated around by AR analysts:
Imagine Starbucks develops an app for Google Glass that works in sync with its Android smartphone app. The Android app would contain a set of common features including payment by phone, store locator, etc. As the user approaches a competing coffee shop (e.g. Peet’s Coffee), however, the Glass eyewear is able to recognize the Peet’s Coffee trademark and sets into motion somewhat of a diversion tactic. It’s unlikely that this would mean triggering a pop-up ad on the eyewear display itself—this would be too annoying. Instead, the user’s smartphone might notify them that they have been sent a digital coupon by Starbucks. It could even provide an easy-to-press button that would pair with the eyewear and navigate to the nearest Starbucks location.
This type of situation is somewhat analogous to the ongoing controversy about the usage of metatags. Companies that use a competitor’s mark as a metatag draw extreme ire from mark owners, who argue that this is deceptive and likely to cause confusion among consumers.
But this question is not so cut and dry. Obviously it is in the society’s interest to cut down on consumer confusion. At the same time, however, it may actually stimulate interbrand competition by “dueling coupons.” To be consistent with trademark foundations, we want as much competition as possible without consumer confusion. In this case, one could argue that the pop-up coupon is well-enough removed from the original mark viewing that consumers are unlikely to be confused as to the source of the goods in question.
IV. PROTECTING PRIVACY VIA OTHER INTELLECTUAL PROPERTY RIGHTS
A. Trade Secrets: Why Most Employers Should Ban Wearable Tech in the Workplace
Although privacy is not the focus of this paper, the same types of issues that cause privacy concerns also impact valuable trade secrets and proprietary information. This impact will be even more severe if widespread interest in AR technology accelerates the adoption of wearable computers. Wearable computers face serious obstacles to adoption in the workplace because many employers will fear the technology’s threat to confidential information.
In his Google Glass review for Engadget.com, Joshua Topolsky mentions “ right now I’m recording video view . . . and you have no way of knowing it. There’s no LED on the front that’s blinking or anything like that to give any indication that I am capturing footage. I have definitely noticed that people are a little bit worried when I’m around them[.]”
It’s not hard to see why an employer might be worried as well. By definition, trade secrets are valuable assets to a company, even more so because there are no hoops to jump through for registration and no expiration dates upon which the information is released to the public. They might include customer lists, know-how, and anything that derives value from being not generally known.
The overwhelming lesson from trade secret law, however, is that businesses should not rely on trade secret protection--the only way to keep information truly secret is to not disclose it. Of course total secrecy is not usually feasible, so the best thing a company can do is to follow a set of best practices. After all, trade secret law is an equitable doctrine.
In the corporate context, the first obvious step is to make sure that all relevant employees have signed a nondisclosure agreement that prohibits them from disclosing trade secrets to anyone. If done correctly, this can actually also include attorneys. See Haught v. Louis Berkman LLC, 427 F.Supp. 2d 777 (N.D. W. Va. 2006).
Simply requiring a nondisclosure agreement, however, is likely not enough to maintain trade secret protection. Most courts will press harder as to whether the information was “subject to reasonable efforts to keep secret.” UTSA § 1(4). This line of inquiry naturally dovetails into analysis of the company’s policies.
Due to concerns about information security and employee privacy, many employers will opt to enact or supplement employee policy regarding recording devices at work to include wearable computers such as Google Glass. The following is an example of such a provision:
Recording Devices — As a general rule, recording devices and camera-equipped devices (including mobile communication devices) and their uses are restricted in accordance with state and federal regulatory guidelines concerning unauthorized surveillance. Employees shall not use the picture-taking functionality of mobile communication devices in the workplace. Unauthorized use of cameras at any [Employer]-owned facility, including designated research areas, restrooms, or exercise areas without the express written consent of the department manager is not allowed. (2012 WL 5466304)
As long as they have some form of picture and video capture capability, wearable AR technology
B. Publicity Rights: Halting Look-alike Porn Under a Privacy Rationale
Credit goes to Brian Wassom for raising this issue. The rise of AR technology also means the rise of facial and recognition technology. We are already seeing some proof of concept videos, some of which seem fairly innocent, some borderline, and some that inspire deep concern.
For example, one primitive app concept named “MedRef” is able to recognize a face and match it with medical data including allergy information and instructions that doctors would find useful. This seems useful for emergencies, but due to privacy concerns and medical regulations it would probably have to utilize some sort of opt-in feature. As for the borderline concepts, a company named “hyperlayer” has allegedly developed AR software that uses facial recognition technology to identify people walking past and display any potential criminal history.
As Brian Wassom notes, however, facial and body recognition technology has the potential to enable a much more sinister market of look-alike porn:
“. . . AR technology will soon be cheap and accessible enough for anyone to make and publish their own content–especially when gathering “source material” becomes as easy as people watching. Once someone has your 3D digital image, there’ll be nothing to stop them from animating it any way they like.”
See Wassom, Augmented Legality 1.0 38 (1st ed. 2012). According to Wassom, one possible course of action for a victim of this sort of behavior is to bring a claim under publicity rights for a lawsuit for “misappropriation of likeness”. Id.
Since this is a more recent addition to the body of intellectual property, there is still debate as to whether the law should be decided under (1) a privacy rationale, or (2) an economic exploitation rationale.
As stated above, the focus of this paper is not privacy. But just as with trade secrets and AR, there are deep privacy concerns that may underlie the push to protect this particular form of intellectual property. At least with regard to unauthorized look-alike porn (as opposed to celebrity’s rights of economic exploitation), the privacy rationale is much more convincing.
In an influential law article from the late-nineteenth century, Samuel Warren and Louis Brandeis reasoned that “[t]he intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world . . . but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).
In this case, the advancement of AR technology has introduced the new threat that someone’s likeness could be sullied by those who wish to sell it as a sexual fantasy. This definitely has the potential of subjecting everyday women and men to embarrassment, mental pain and distress as well.
For these reasons, future victims of such technology will probably be wise to pursue protection of their likeness with publicity rights under a privacy rationale.
The adoption of augmented reality applications stands to upset the status quo of intellectual property law. We must predict these problematic scenarios and advocate outcomes that are consistent with the theoretical foundations upon which we have built up these intellectual property rights.