New Intellectual Property Issues Emerge with the Advent of Virtual Reality

With the rising popularity of virtual reality, new issues have begun to emerge in intellectual property law.  From patent disputes to rights of publicity issues, virtual reality has provided a new realm for legal disputes to arise. In patent law, experts have begun to see a rise in the amount of litigation regarding patent disputes that claim ownership of the underlying virtual reality technology itself.  As virtual reality technology continues to advance, and more gadgets are introduced, the underlying patents have become hotly contested.  Because virtual reality technology is evolving so quickly, the courts have yet to really define what differentiates one virtual reality technology’s novelty from another.

In trademark law, virtual reality issues have popped up due to both the authorized and unauthorized use of trademarked brands, services, or goods.  While many virtual reality companies claim nominal use as a defense, and others have licenses to use the virtual reality representation as advertising, there are still very real legal concerns regarding the virtual replication and insertion of brand names, logos, and words marks in such uncharted territory.

In copyright law, similar issues arise.  Many copyrighted works may appear in a virtual reality setting with or without the copyright owner’s permission.  While many virtual technology companies have already begun to use “fair use” as a legal defense, claiming that virtual reality as a technology is transformative use itself, courts have yet to fully decide whether this defense as an automatic pass holds any weight.

Further, as many virtual reality games allow for user modifications, such third-party insertion can often lead to claims of contributory infringement.  While many virtual reality companies may look to safe-harbor provisions provided by the Digital Millennium Copyright Act, takedown notice provisions are already commonly used in the video game industry, and as such, it is logical to expect such a trend to continue into the virtual reality arena.

Likewise, another facet of intellectual property law, rights of publicity, have become increasingly relevant in today’s technological world.  As states tend to vary in terms of how much protection they provide for a citizen’s right to publicity, (e.g., California is particularly protective thanks to its Hollywood roots) federal courts are relatively untested have yet to provide uniform guidance in terms of which rights of publicity will be protected and which uses are allowable under the First Amendment.

Lastly, due to all the different ways intellectual property may be utilized, authorized or unauthorized, in a virtual reality setting, intellectual property attorneys can expect a plethora of new issues to arise as the technology continues to involve.  As such, it would behoove all counsel to follow both the innovation of the technology in combination with analysis of court rulings or legislation that address the virtual representation of digital goods and protected intellectual property in a virtual reality setting.

Klemchuk LLP is an Intellectual Property (IP), Technology, Internet, and Business law firm located in Dallas, TX.  The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights.  The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution.  Additional information about the Internet & eCommerce law firm and its Internet & eCommerce attorneys may be found at www.klemchuk.com.

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