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The Pokemon Go phenomenon woke up the marketing world to the potential of augmented reality (AR), together with spurring interest in its high-tech cousin virtual reality (VR). But, as businesses and the general public begin to adopt AR and VR more broadly, some surprising legal pitfalls are surfacing that would easily catch brands less accustomed to the immersive and experiential technology space off-guard.
According to several lawyers who spoke to Marketing Dive, there are plenty of things to take into accout when crafting AR/VR content, starting from familiar issues like copyright violation but additionally trespassing and particularly invasive data collection. Attorney Linda Goldstein, a partner at BakerHostetler who heads the firm’s promoting, marketing and digital media areas, said the subject of legal issues surrounding AR and VR is being brought up more often by clients, and that her firm is more energetic in speaking about it.
“Right now, it’s about attempting to discover the problems,” said Goldstein, adding that it continues to be early days. The sentiment is shared by other corporations including the Reed Smith law firm, whose legal team just published a white paper on potential legal complications surrounding AR and VR.
Private property and physical safety
AR, particularly, relies on overlaying digital effects onto the actual world, often via a smartphone camera, meaning marketers should be extra cautious in how they apply the technology.
“I feel that the primary legal issues, not less than to this point, have been first — consider it or not — problems with trespass on where the objects are situated,” said Goldstein. If a brand goes to be a sponsor for a game, for instance, Goldstein cautioned that it will be smart to run any promotions in a public space to avoid potential lawsuits.
Marketers also have to remain cognizant of how AR and VR experiences may cause people to act.
“You might be walking through the road glued to an app and probably not aware of your surroundings,” said Goldstein. “So safety is a priority.” The Reed Smith paper also identified that, due to the immersive qualities of the technologies, “AR/VR will speed up user’s ability to physically integrate into an environment,” and act out movements that may lead to injury.
Attorney Po Yi, a partner in Venable’s promoting and marketing group, noted that VR has been linked to nausea and other physical ailments. She suggested marketers consider age restrictions and certain sorts of disclaimers to cover their bases in that regard.
Beware of copyright, trademark infringements and publicity rights
Just as marketers should be keenly aware of AR/VR users’ physical surroundings, the identical rules apply to respecting mental property (IP) rights.
“If you’ve arrange your app or whatever mechanism you’re using and you’re incorporating perhaps statues which can be copyrighted or artwork that’s out and about on the street, there are potential legal concerns,” Goldstein said.
Michael Sherman, a partner within the Entertainment and Media Group at Reed Smith, believes that IP issues will probably be considered one of the “most vital” legal concerns as AR and VR proceed to see wider adoption. Viewing a copyrighted artwork or branded garment on a mannequin in a movie is much different than viewing them in AR or VR, he said.
“If the movie pans [to] the item quickly, it won’t be an issue,” Sherman explained. “But in a virtual reality application, the user can manipulate the scene in a way wherein the content could also be repeated or an image on the wall really honed in on. If users can really focus in on it for an prolonged time frame, there might be a difficulty as as to whether the production company has the suitable to make use of it.”
Another hypothetical offered by Sherman can be using a Nineteen Fifties soda counter setting where a Coca-Cola sign hangs prominently within the background while people on the counter drink a beverage that appears like Coke.
“The suggestion is that in some way Coca-Cola is a sponsor or licensed the brand to be on this virtual reality environment,” Sherman said. If the experience features violent or sexual content — material many brands would deem unsafe — the creators might run into trouble.
“Coca-Cola would likely never allow that and it might be a trademark infringement,” Sherman added.
With these aspects in mind, marketers will likely be doing more reviews for pre-existing licensing contracts to see in the event that they apply inside the boundaries of AR and VR, per Sherman. Some contracts have already been constructed to include allowances for brand new technologies with wording similar to “in any media known or hereafter coming up,” he said.
Then there are Publicity Rights, a legal protection for people, typically applied to well-known public figures and celebrities. But this may also be embraced by “real” men and girls if their images are tied right into a industrial enterprise they didn’t give approval for. In its white paper, Reed Smith gives the instance of a lawsuit against Samsung Electronics America over an commercial featuring a game show character closely resembling Vanna White, longtime hostess on “Wheel of Fortune.”
Present the product truthfully
Product representation is one other factor to take into accout, in accordance with attorney Gonzalo Mon, who makes a speciality of marketing and promoting on the law firm Kelley Drye and Warren. Consumer legal protections can carry over to emerging promoting formats, and Mon said the industry is currently grappling with how they translate to AR and VR.
If a retailer or brand presents a consumer the chance to virtually try on or inspect a clothing item from a general promoting standpoint, that have must accurately reflect the tangible product, in accordance with Mon.
“If they’re an item, you may’t make it look higher within the virtual world or say it has elements or features that don’t exist,” he said.
Marketers should be particularly careful when targeting children.
“We might see a toy plane flying through the air in AR or VR. We know as adults the product doesn’t really try this. But it must be clear for youngsters so that they do not get unrealistic expectations,” Mon added. “You don’t desire to exaggerate the way it performs.”
On top of that, there might be a difficulty over product disclosures and special offer terms that should be clearly expressed. Because of space, there have already been struggles on this area on channels like social media.
“Those laws requiring disclosure are still going to use, and it could be harder to specific in an AR and VR setting,” Mon said. “But you may’t avoid doing it.”
Privacy concerns
Marketers are still grappling with privacy concerns surrounding data collection across channels and the way it’s applied to their business — a difficulty that applies to AR/VR, especially when considering potential intrusions like hackers. Venable’s Yi said AR and VR experiences actually heighten privacy issues due to the vast data that might be collected, similar to user location and behavioral information.
“The disclosure has to accurately say what you’re doing,” she said. Stemming from that, marketers must fastidiously consider what data they wish to collect from an experience and whether it steps outside of legal and ethical boundaries.
“Is it being fully disclosed to users and what sort of data security is there?” asked Yi. “Potentially, this might be problematic due to the kind of data collected. It’s more personal, even when it is not identifiable.”
Marketers should then correctly consider their early moves within the AR/VR space. Even if something doesn’t end in litigation, there might be lasting damage to brand fame for experiences deemed intrusive.
“I feel you could pay attention to the results of your actions,” Yi said.
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