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July 27th, 2016
Are Augmented Reality Games Liable for Depictions of Buildings, Trademarks or Artwork?
In the few weeks since its release, Pokémon™ GO has dominated the interactive entertainment landscape. The augmented reality game has reportedly achieved more than 30 million downloads and lots of buzz. But as its popularity grows, so do questions about its legal implications - including the use of landmarks, buildings, monuments, and other frequented locations. Can the developers of augmented reality games be liable for copyright or trademark infringement for depictions of buildings or artwork? While we are not aware of any cases against augmented reality projects yet, we can apply some familiar concepts to shed light on these important legal questions.
Pokémon™ GO primer
In Pokémon™ GO, players travel to "PokéStops" where they can collect items to be used in gameplay, as well as to "gyms" where they can battle other players. PokéStops and gyms are displayed at locations around the user's area, often including restaurants, churches, museums, etc. When a player interacts with a stop, an image of the location appears.
The images are mostly user-generated, submitted by players of Niantic's previous game - Ingress. Similarly, in Ingress, users traveled to specific locations to interact with the game. These locations were chosen using geo-tagged photos from Google (Niantic's original parent company). Ingress players and others uploaded the images. Importantly, the Ingress submission page specifically instructed users to submit only photos of locations that they took themselves, and not to include photos of locations considered private property, noting that any submissions that did not conform to these guidelines would be rejected as location points. In doing so, Ingress created a database of locations and images that was user-generated and generally visible to the public, but unlikely to result in liability. Niantic migrated this database to Pokémon™ GO, where the most frequented Ingress locations became points in the new hit game.
In the case of Pokémon™ Go, does Niantic risk liability under copyright law for using images of buildings? Most likely not.
Historically, buildings constructed before November 30, 1990 are not subject to protection under US copyright law, so use by Niantic of representations of these buildings is without restriction. Additionally, although buildings constructed after December 1, 1990 are eligible for protection under the Copyright Act, pictorial representations of buildings visible from public places are protected by the photographer's exception codified in Section 120(a) of the Copyright Act. This exception holds that a copyright in an architectural work - such as a building - does not include the right to prevent the making, distribution, or public display of pictorial representations of the architectural work if the building which is the subject of the pictorial representations is located in or ordinarily visible from a public place. Under the photographer's exception, Niantic is free to use the user-generated images of buildings visible to the public as PokéStops and gyms without exposure to copyright infringement liability.
However, no matter when the building was constructed, PokéStops and gyms depicting sculptures, murals, or other works of art, may not be as safe from a challenge, even if the works are associated with publicly visible buildings. If the images display copyrighted works, they may be infringing on the holder's creative rights. Interestingly, Pokémon™ GO may still avoid liability under the Digital Millennium Copyright Act (DMCA). Under the DMCA, online service providers are given a safe harbor against copyright liability if they meet certain requirements - namely that they remove or block access to allegedly infringing material when they receive notification of infringement from a copyright holder. Pokémon™ GO's website is equipped with a request button, including the option to report an issue with a gym or PokéStop. Were Niantic to receive notification of an alleged infringement by the holder of the copyright in the depicted work, and respond promptly, it would theoretically be safe from liability in instances outside of the architectural protections as well. Notably, the safe harbor only applies if Niantic qualifies as an online service provider and has registered a DMCA agent responsible for monitoring take-down requests with the US Copyright Office.
Does Niantic risk liability under trademark law if the game displays any trademarks in connection with depictions of the buildings? Again, most likely not.
While building designs are eligible for trademark protection, realistic in-game portrayals of building exteriors are unlikely to create trademark liability - provided that Niantic does not suggest that any trademark owners have sponsored Pokémon™ GO. Augmented reality games, like other video games, are entitled to First Amendment protection, and game publishers may successfully assert the First Amendment as a defense to a trademark infringement claim. Courts will permit a claim of trademark infringement against an artistic work to proceed only where the public interest in avoiding consumer confusion outweighs the public interest in free expression. For example, under the test in the Second Circuit, Niantic's use of a trademark in Pokémon™ GO will risk trademark liability only where the use has no "artistic relevance to the work" or, if it has such relevance "it explicitly misleads as to the source of content of the work."
Given that the purpose of Pokémon™ GO is for players to navigate and interact with real-world locations, and that it is fairly well known that Ingress players have submitted the images, we believe it would be difficult to find that there is no artistic relevance to the use of the trademarks, or that Niantic had misled players about the source of the work. (This analysis could change in the future if Niantic enters into sponsorship agreements with brands for inclusion in Pokémon™ GO.)
If you have questions about legal liability for augmented reality projects, or about any other interactive entertainment matters, contact Sean F. Kane at (212) 705 4845 or firstname.lastname@example.org, S. Gregory Boyd at (212) 826 5581 or email@example.com, or any other member of the Frankfurt Kurnit Interactive Entertainment or Intellectual Property groups. The firm gratefully acknowledges the contributions of summer associate Jordyn Eisenpress to this alert.
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Federal Appeals Court Weakens DMCA Safe Harbor Protection for Moderated Online Content
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May 2 2017