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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

Michigan Law Firm - Warner Norcross + Judd LLP

"Take a picture; it'll last longer." Many times has that bit of sarcasm been directed at people who stare just a little too long. But suppose the guy is staring because he's taking your picture?

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That creepy scenario may play itself out sooner than we think. While many commentators are (rightly) concerned about the ramifications of technology that identifies us by our facial features, devices that can map our bodies in three dimensions and track every gesture in real time are already flooding our living rooms. The <a href="http://en.wikipedia.org/wiki/Kinect">Microsoft Kinect </a>is just the first of what will surely be many types of devices with this ability.

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Such advanced mechanical vision is a <a href="http://www.quora.com/Brian-Wassom/answers">necessary precursor</a> to a world with fully interactive augmented reality applications. It won't be long until we have AR eyewear with the same (and even better) ability to perceive and record three-dimensional objects. (Call this 3-dimensional video, or--if can I coin a term--"3deo.")

But we don't need to wait for AR eyewear to see some of the consequences of ubiquitous 3deo. All sorts of people have already hacked the Kinect to do some pretty amazing things. This video clip shows people on a sidewalk stepping into an outdoor studio <a href="http://www.popsci.com/technology/article/2011-04/video-three-hacked-kinects-and-one-3-d-printer-turn-you-your-own-souvenir">consisting of three hacked Kinects and a 3-D printer</a>, and stepping out with nearly instantaneous sculptures of themselves:

<a href="http://vimeo.com/21676294">Be Your Own Souvenir!</a> from <a href="http://vimeo.com/user1363263">blablabLAB</a> on <a href="http://vimeo.com">Vimeo</a>.

Kinects didn't even exist a year ago. How much more quickly, and with much higher resolution, will this sort of thing be done five years from now? A long glance by someone wearing 3deo-equipped AR eyewear may be all it takes to record a high-resolution image of your entire body as you walk past them on the sidewalk.

Would that be legal? In the US, under today's laws, the answer is very probably "yes." (The reaction that Google Street View has gotten in Europe suggests that privacy laws in those countries may take a dimmer view of the practice.) There is no expectation of privacy that prevents anyone from taking your photograph in open, public places. The liberties of free speech and newsgathering inherent in the First Amendment to the US Constitution make it nearly impossible to legally prohibit such conduct. The same rules would apply to 3-dimensional photography or video.

Nor would copyright law stand in the way. US copyright law protects original works of creative expression. The courts are quite clear, though, that replicating in a different medium (including 3-D digital models) something that already exists doesn't qualify as original expression. As <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1709529">this article</a> ably explains, that means that replicating an actual human body in digital space would not create a copyrightable work.

Legal remedies may exist, however, depending on what someone does with their digital recreation of you. The number of potential uses are as broad as the imagination, and many of them may not be objectionable at all. Imagine a "Mii" avatar that looked exactly like you, for instance.

But human nature being what it is, there's one obvious way that someone's digital image could be misused: porn. Cell phones and the internet have already made it far too common for naked pictures--whether genuine or Photoshopped--to be distributed online without the depicted person's consent. The personal and social consequences for the victim can be devastating.

But what if it were just as easy to digitally render your entire body in three dimensions as it currently is to snap a photo? The cell phone "sexting" phenomenon is already bad enough; teens with 3deo-capable phones are going to get themselves into even worse situations than they do now. But you wouldn't necessarily even have to be naked for someone to make such a rendering. Body scanners at the airport already see through our clothes; perhaps smaller devices will do the same in the future. And even without that ability, could it be that difficult for a computer to discern the shape of our bodies based on how our clothes fall over them--at least accurately enough to satisfy the peeper's deviant purposes?

The porn industry is already <a href="http://www.augmentedplanet.com/2010/06/exclusive-report-augmented-reality-and-the-adult-entertainment-industry/">investing heavily in AR</a>, and for a time, it may take well-financed companies to generate AR content that people will pay for. But not for long. Like the internet before it, 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.

(Should we take this already-disturbing hypothetical one horrible step further? As <a href="http://www.linkedin.com/share?viewLink=&amp;sid=s353136509&amp;url=http%3A%2F%2Flnkd%2Ein%2FdTGcAj&amp;urlhash=K_kY&amp;uid=5466660127476023296&amp;trk=NUS_UNIU_SHARE-lnk&amp;goback=%2Ermg_*1_*1_*1_*1_*1_*1_*1_*1_*1">Joe Rampolla</a> (a law enforcement officer and consultant specializing in cybercrime, and one of the first people to publicly address the law enforcement aspects of AR) says, "<a href="http://www.linkedin.com/share?viewLink=&amp;sid=s353136509&amp;url=http%3A%2F%2Flnkd%2Ein%2FdTGcAj&amp;urlhash=K_kY&amp;uid=5466660127476023296&amp;trk=NUS_UNIU_SHARE-lnk&amp;goback=%2Ermg_*1_*1_*1_*1_*1_*1_*1_*1_*1">wherever society finds pornography, child pornography is not too far behind.</a>" Imagining how perpetrators of child pornography might put this technology to use is not a pleasant thought to dwell on.)

What legal avenues might be available to combat unconsented-to uses of a person's 3D image? When it comes to the perverse misuse of minors' images, the answer is simple: it's a crime that law enforcement battles every day, and they will continue to do so in the AR context. Even as to adults, we may need tougher criminal laws if pornographic misuses of peoples' likenesses becomes rampant.

Civil law offers some options as well. Two of them stem from the common law right of privacy. There are four traditional causes of action for invasion of privacy. One is called "intrusion into seclusion." <a href="http://scholar.google.com/scholar_case?case=699835474797912872&amp;q=%22intrusion+into+seclusion%22&amp;hl=en&amp;as_sdt=2,5">As one California court</a> explained, this claim is "the one that best captures the common understanding of an 'invasion of privacy.' It encompasses unconsented to physical intrusion into the home, hospital room or other place the privacy of which is legally recognized, as well as unwarranted sensory intrusions such as eavesdropping, wiretapping, and visual or photographic spying." To succeed on the claim, one must prove "(1) intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person."

Without doubt, using 3deo technology to peer through one's clothes and create a nude digital rendering would qualify as an "unwarranted sensory intrusion." But the claim seems less likely to succeed if the image remained clothed; in that case, nothing secret has been intruded upon.

Another type of privacy invasion is called "misappropriation of likeness," which is exactly what it sounds like--a cause of action for misusing a person's image, name, face, or other identifying characteristic. Also called the "right of publicity," this body of law has evolved so much that one leading treatise considers it an economic tort rather than an issue of privacy. That's because, in order to prevail on this claim, one generally has to prove that their image has "commercial value" and has been used for commercial purposes (although the details of this claim vary significantly from state to state.) Using it in a creative, expressive, noncommercial way typically falls within the zone of free speech protected by the First Amendment.

For example, in 2003, Kieren Kirby (vocalist for the 90s band Dee-Lite) <a href="http://rightofpublicity.com/pdf/cases/kirby.pdf">sued Sega for violating her right of publicity--and lost</a>. The video game character "Ulala" clearly bore a strong resemblance to Kirby (not to mention that "Ooo la la" was one of Kirby's signature lyrics). But the court found that Sega had sufficiently "transformed" Kirby's image, such that Ulala was new, creative expression. In other words, while Kirby's likeness may have served as raw material or inspiration for the character, the game creators tweaked that image enough to make it no longer Kirby's. Therefore, even if someone copied your 3-dimensional figure without your knowledge and consent and used it as a starting point for a digital character, they too may escape the right of publicity's reach.

When it comes to sexually themed uses of a person's likeness, however, several courts have used the right of publicity to put a stop to it. For example, when a video of a popular television news anchor dancing in a wet t-shirt contest found its way online, <a href="http://scholar.google.com/scholar_case?case=9474884511141398632&amp;q=310+F.+Supp.+2d+914%3B&amp;hl=en&amp;as_sdt=2,5">a federal court in Ohio ordered the video taken down</a> because it violated the anchor's right of publicity--her right to control the commercial exploitation of her likeness. <a href="http://scholar.google.com/scholar_case?case=566017448865468396&amp;q=5+F.+Supp.+2d+823%3B&amp;hl=en&amp;as_sdt=2,5">Bret Michaels and Pamela Anderson won</a> a lawsuit to block publication of their sex tape on similar grounds. And more recently, <a href="http://realitytvmagazine.sheknows.com/2010/09/22/keeping-up-with-the-kardashians-kim-kardashian-reacts-to-sex-toy-doll/">Kim Kardashian argued </a>that a sex doll bearing a striking resemblance to her violated her right of publicity. Anyone who found their 3D image being put to similar use in AR space would have a strong (though far from guaranteed) chance of success.

Depending on the circumstances, other legal theories might apply as well, including the tort of intentional infliction of emotional distress. Non-legal countermeasures may also become available. Perhaps the fashion world will respond by developing clothes that throw off recording devices, much like <a href="http://www.carandsuv.co.nz/articles/camouflage-and-disguise-the-fight-against-prototype-paparazzi">the checkered camouflage wraps that the auto companies use to shield prototype cars from the paparazzi</a> (not an uncommon sight here in Detroit).

The point, however, is that we need to start thinking through the ramifications (legal, societal, and otherwise) of technology that is able to quickly and accurately create 3-dimensional models of our bodies--because it's already here.

In the meantime, if you happen to find someone staring at you in the future ... think twice before inviting them to take a picture.

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Emerging Media and Technologies

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Brian D. Wassom

Information Technology Transactions

Forget Facial Recognition–Body Recognition May Be the Real Privacy Concern

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Forget Facial Recognition–Body Recognition May Be the Real Privacy Concern

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