I have to admit: it took me awhile to "get" projection mapping. If you haven't heard about it, "projection mapping" was defined by Mashable as " a relatively new technology that animates stationary objects with 3D video." I had seen references to this "new technology" in a few different places recently, and it appears to be all the rage. Still, it seemed to me an awful lot like projecting a video on a really big surface, which is hardly "new technology."
Then I took a few minutes and actually watched some of the videos linked to these articles. Wow. Awesome. When done well, projection mapping creates the powerful illusion of a building actually coming to life and moving in three dimensions. One of my favorite example is this one, on a government building in Ukraine (starting at about 55 seconds into the video):
See what I mean? (See more examples here and here.) Now think about how prevalent this concept will be when augmented reality becomes widely available. I doubt that there will be many buildings that aren't animated in one way or another. Unlike contemporary projection mapping, however, the effect will be superimposed by the user's AR viewer, instead of light being physically projected onto the surface of the building. Those who design these experiences will no longer be limited to the actual physical dimensions of the brick-and-mortar edifice. Instead, you could find a building actually wrapping its (simulated) arms around you, or see (virtual) flames spewing from its windows, or any other effect one can imagine.
All of which leads a curious IP attorney to wonder: could any of this activity infringe the architectural copyrights of the person who designed the building?
First, a quick tutorial: U.S. copyright law applies to original works of creative expression that are fixed in a tangible medium. It affords to the creators of such works five basic rights with respect to the copyrighted work--the rights to control its reproduction, adaptation, distribution, public display, and public performance.
One type of creative expression in which copyright may inhere is an "architectural work"--i.e., "the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings." But Congress also recognized that allowing architects to fully enforce all five of these rights could cause all manner of logistical nightmares throughout society. So it pared back some of the protections available in architectural works. Specifically, Section 120 of the Copyright Act allows people to make, distribute, and display pictures of public buildings. It also lets the owners of a building alter or destroy the building, if they so choose, without needing to first get the architect's permission. (Can you imagine if those exceptions didn't exist?)
With these things in mind, let's consider whether projection mapping impermissibly adapts (or, in copyright parlance, "creates a derivative work of") the architectural work embodied in the building being projected upon.
The short answer, in my view, is "no." With the caveat the outcome of any particular case depends on the specific facts at issue, I can't imagine a realistic scenario in which projection mapping (as it's currently done) would create an infringing derivative work. At least two reasons come to mind. First, nothing is actually being done to the architectural work (i.e., the building design) itself. Instead, the presentation involves two separate "works"--the building, and the video. Yes, the video is designed to take advantage of the unique design of the specific building that it's being projected upon. Its effect would be far less impressive if it were projected onto any other surface. And that effect is meant to create the illusion that the building design is changing. But it's only an illusion. No actual alteration to the architectural work ever occurs.
Second, even if a creative litigation attorney argued that simply creating the perception of a morphing building was enough to create a derivative of the building design, such an "alteration" should fall within Section 120's exception. Although there is very little case law interpreting Section 120, one court accurately observed that "Section 120(b) does not expressly contain any limitation upon the manner or means by which a [building owner] may exercise his right to alter the structure. Presumably, no such limitations were intended by Congress, else they would be expressed in [that section]." The one catch here is that, as written, this statutory exception allows only the "owner" of a building, not anyone else, to authorize an alteration to the building. So the projection mappers would need to have the owner's permission; guerilla marketers would not have this statutory defense. Again, though, there would not appear to be any actual alteration made in the first place.
But would the result be the same if the illusion of an animated building were accomplished through AR smartphone/eyewear instead of an actual video presentation? Yes--for the most part. Whether the video image is actually projected on a building or only overlaid over the viewer's perception via AR, there is still no alteration of the actual building occurring.
There is a potential catch, however, depending on how the AR effect is accomplished. If the data superimposed on the building consists solely of original imagery designed to overlay the building, that's conceptually equivalent to existing projection mapping. But what if the AR designer copies the actual building design into virtual space, then alters that design, in order to create the end result?
That would complicate things from a copyright perspective. An architectural work can be embodied either in 2-D written drawings or in a 3-D manifestation. Making a copy of the design is infringement, unless an exception applies. Section 120 allows people to make "pictures, paintings, photographs, or other pictorial representations of the work." A virtual recreation may very well fit that description. But the statute does not expressly allow the person who makes that pictorial representation to then alter the picture. Arguably, that could be creating a derivative work.
Even under those circumstances, potential defenses are available. For example, at least one court has found within Section 120 an implied right to copy and alter a building's plans for the purpose of creating an owner-approved alteration to the building. Otherwise, the court reasoned, an architect hired by a homeowner to renovate a home would be forced to do so without the benefit of written plans--a dangerous prospect. A similar argument could be made in the AR space, depending on the purpose of the alteration. A different court, however, has disagreed that any such implied right to copy plans for the purpose of altering a building exists.
The fair use defense is also an option. But that is a very case-specific argument that depends on the facts at issue, so it's never something that a potential infringer will want to rely on as the primary support for their actions. The safest route for someone designing an AR alteration of a copyrighted building design, therefore, is to get some informed legal advice before proceeding.
Bottom line: out of all of the legal issues that augmented reality designers are likely to encounter, copyright infringement for altering a user's perception of a building is not likely to be among the most problematic. But the mere possibility that it could become an issue highlights the fact that, when it comes to avoiding legal liability, an ounce of prevention is worth a pound of cure.
