What Marketing Professionals Need to Know About Augmented Reality Law

Thursday night I was privileged to be part of a panel--together with Brian Mullins of daqri, Brian Bos of Mindshare, and Marty Wetherall of Fallon--presenting on augmented reality to the AdCraft Club of Detroit.  As the lawyer on the panel, many of the questions I fielded dealt with the legal issues that are likely to be most relevant to those using AR technology in their campaigns.

Here is a brief summary of some of the remarks I made:

• Patent Trolls.  In almost every technological field nowadays, there is a patent owner out there filing lawsuits that accuse users of new and innovative technologies of infringing a patent.  And increasingly, those plaintiffs are targeting retailers who license the technology for a particular campaign, rather than software designers who have a vested interest in defending against the litigation.  Within the past year, one of these trolls began targeting retailers who use webcam-based AR apps that allow customers to visualize themselves "trying on" a particular accessory.  That shouldn't necessarily deter retailers from getting involved in AR-vertising, but they should be aware of the risks.  If you're going to swim in this ocean, know that there are sharks in the water.
• Advertising Regulations.  The current hot topic in digital advertising law is where disclaimers and disclosure should go and what they should say in order to make sure that customers have a reasonable chance to see and understand them.  So, for example, when a weight loss company "pinned" real weight loss stories on Pinterest, it got in trouble for putting the required "These Results Aren't Typical" disclaimers on a hyperlinked page rather than in the pins themselves.  The FTC wants similar disclaimers to appear within tweets on Twitter, and close enough to website text that it will be visible on mobile browsers.  But when your content becomes three-dimensional and interactive with the physical world, where will the disclaimers go?  Will they have to appear in "augmented space" as well?  For now, AR experiences happen through mobile apps, so the likely answer is that those apps can include most disclaimers in a separate tab like any other app.  But as the augmented content gets more significant and interactive, these questions will get thornier.
• Physical Injury.  I doubt if many, if anyone, in the audience had ever worried that a consumer might hurt themselves while viewing their ad.  But what turns digital content into augmented content is its interactivity with physical places and things.  So as advertising moves into the augmented medium--especially if it includes "game" mechanics that require users to go looking for digital objects in physical space--marketers will need to pay close attention to the surroundings into which they ask consumers to go.
• The Internet of Things.  The panel had a great discussion about AR's utility as a window into the Internet of Things.  One panelist pointed to the dishwasher as a device that collects a great deal of information, but would not be cost-effective if it included a digital screen for displaying that data.  AR, however, will allow users to gather disparate bits of digital data and view it in a format that is easy to read and navigate.  The flip side of that utility, however, will be the capability to gather and display information that people might rather not have gathered and displayed.  One example that will particularly unnerve people is when facial recognition technology turns every one of us into "things" within the Internet of Things.  Then, those of us with the right AR device will be able to see a single display containing all sorts of information about every person we may pass on the street.

Some reactions to our panel discussion:

@techbradwaid @bdwassom @daqri @adcraftclub Had a great time at the Adcraft AR seminar last night. Thanks to all who contributed. @smamiorg

— Drew Minock (@TechMinock) May 31, 2013

— Evelyn Chou (@Evyfindstheway) May 31, 2013

This sampling illustrates the breadth of unexpected and challenging issues that marketers in particular and society as a whole will face as AR becomes more mainstream.  Join us next week at the Augmented World Conference 2013 to learn more!