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Virtual World, Real World Problems


When it comes to virtual reality, there’s a whole world of intellectual property issues to consider – some new, and some familiar.

Just as with any other video game or movie, the use of content owned by third parties needs to be cleared. This includes content like:

  • Music
  • Photographs
  • Video clips
  • Names of real people
  • Images of real people
  • Brand names
  • Logos

Whether a license or other permission to use this content is required will depend on a number of factors, such as the nature and extent of the use.

For example, just because a character in a virtual reality environment wears brand name clothes or drives a brand name vehicle, that doesn’t necessarily mean that the world’s creator needs to obtain rights to use the marks.

(In fact, licensed product placement can be a source of revenue in the virtual realm, just as in other media.)

Game companies have recently been sued for using images of real people in games. For example, both starlet Lindsay Lohan and former Panamanian dictator Manuel Noriega sued game publishers for using their likenesses without permission – in Grant Theft Auto V and Call of Duty:  Black Ops II, respectively.

Noriega, in prison for drug trafficking, money laundering, and murder, contended that his portrayal in the game “as a kidnapper, murderer and enemy of the state” damaged his reputation.

Noriega’s suit was dismissed. The court concluded that “Noriega’s right of publicity is outweighed by defendants’ First Amendment right to free expression.”

Lohan’s suit appears to be still pending.

The best-selling novel (and soon-to-be-Steven-Spielberg-movie) Ready Player One imagines a virtual universe in which players create their own avatars. Would the creator of the virtual world be responsible if those avatars copied third party intellectual property – such as the characters in Guardians of the Galaxy? Presumably, a virtual world’s operator would be subject to the notice-and-takedown requirements of the Digital Millennium Copyright Act.

However, who owns an avatar? This issue was discussed in this article in the Santa Clara Law Digital Commons.

Perhaps these issues will need to be resolved in a virtual courthouse.

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