With the surging popularity of virtual reality technologies has come a wave of companies creating content for virtual worlds. This includes not only the design of new and fanciful creations, but also scans of the existing, physical world. A lot of scans.
The demand for virtual recreations of the physical world is more than understandable. "The ability to acquire accurate 3D models of the real-world can enable all sorts of new applications and experiences, like visiting a one-to-one 3D model of the pyramids in Egypt or the Roman Colosseum in VR," said Oculus VR in a post explaining why it had just purchased the 3D modeling company 13th Lab. Such high-quality virtual tourism is one of the business models driving the current optimism behind VR, and a goldmine of which we've only begun to scratch the surface.
As another, noncommercial example, Project Mosul is a scholarly effort to preserve cultural heritage sites around the world in VR before they're destroyed by jihadis or natural disaster. Their recent projects include the city of Kathmandu and the ancient Lion of Mosul statue.
All of these efforts are awesome, impressive, incredibly labor-intensive, highly detailed, and skillful. One thing they are not, however, is copyrightable.
Beginning almost 10 years ago now, I had the privilege of arguing a case in a federal District Court and federal Court of Appeals that helped establish why digital recreations of physical objects are not copyrightable. In that case, an automotive manufacturer and its marketing team began using 3D digital scans of its vehicles to make print ads, rather than photographs. As a starting point, they hired Meshwerks, a contractor, to scan and create wireframe meshes of the vehicles. When the manufacturer's team began adjusting those wireframe images to reflect design changes in subsequent model years, the contractor sued, claiming that it owned a copyright in those wireframes.
The vendor lost. "In reaching this conclusion," said the Court of Appeals in its 2008 decision, "we do not for a moment seek to downplay the considerable amount of time, effort, and skill that went into making Meshwerks' digital wire-frame models." But the Court also recognized that copyright law does not protect effort; it protects original expression. In the case of images depicting real-world objects--whether photographs or 3D models--original expression can be found in such aspects as "lighting, shading, the background in front of which a vehicle would be posed, the angle at which to pose it, or the like." Instead, it merely reproduced the naked, physical dimensions of the vehicle as it existed in real life, and nothing else. The fact that the content never before existed in the virtual world is irrelevant, because, "standing alone, the fact that a work in one medium has been copied from a work in another medium does not render it any the less a copy." Therefore, as I advocated, the Court recognized that the wireframes contained no original expression subject to copyright protection.
That decision--which has been followed by many other courts since--applies directly to VR reproductions of real world scenes and objects. While it may be amazing to experience such images in this new medium, the "dimensional shift" and hard work alone won't be enough to afford the imagery copyright protection.
Why is that important? Because an image that isn't protected by copyright is, instead, in the public domain, where it is free to be copied by others. No virtual tourism company wants to sink millions of dollars into recreating scenes that anyone else can come and take for free.
That isn't to say, though, that all hope is lost for virtual tourism companies. Far from it. There are multiple strategies they can use for protecting their content, such as making sure to weave fictional imagery into their real-world recreations. But those decisions will depend on a great many case-specific factors. As VR and other digital imagery continue to grow in prominence, I look forward to counseling clients on, and litigating, these issues in the years to come.
