Augmented reality apps enable the user of a mobile device to see data and symbols laid over the image displayed in real time from the device’s camera.
Data Over Famous Images
For example, while standing outside a famous commercial building like Caesars Palace in Las Vegas, the user could point the camera on her Android smartphone at the building. The phone could display a live video image of the building.
As that image is displayed, an augmented reality app could use geolocation and image recognition technology to discern that the video shows an image of the famous building.
With the knowledge that CP is being displayed, the app might cause to be displayed on top of the image additional information, such as an advertisement that says, “Thinking of staying at Caesars Palace? We’ll give you a better deal down the street.” Or (hypothetically speaking) the app might display remarks from other users about Caesars Palace, like “CP is a dump!”
What legal steps might the owner of Caesars Palace take to prevent apps from displaying undesirable statements over the building’s image or to the side of the building’s image?
Trademark and Copyright
The owners of famous commercial properties sometimes claim trademark or copyright protection for the appearances of their properties. Caesars Palace might assert that the maker of the app infringes its trademark or copyright.
The mixed reality app maker, however, might counter that its app makes no more than fair and nominative use of the trademark or copyright.
Publication of Travel Guide
The owner of a business might have a claim against the publisher of an app for defamation or commercial disparagement. The law protects a business like CP from the publication of a false statement that injures the business.
The app maker, however, might argue it is subject to the same rules and privileges as the publisher of an online travel guide that includes ads and user comments. Today a user at an online travel guide can search the words “caesars palace” and pull up reviews of Caesars Palace, as well as ads from CP’s competitors.
Yes, the publisher of an online travel guide can be liable for knowing publication of a false statement that damages a business. But free speech and other protections afford the publisher considerable leeway to publish opinions about a business.
End User License Agreement for Real Property?
Allow me to speculate. The owner of a property like Caesars Palace might try to form a contract with anyone who captures a smartphone image of the building. The contract might be like an end user license agreement (EULA). It might say, for instance, that the image is copyrighted/trademarked and the user agrees not to use the image with a non-approved app.
Further, to add incentive and consideration to the contract, the EULA might say that the user who complies with the EULA will be afforded all of the privileges (such as CP perks and discounts) available through the use of augmented reality apps that CP has approved.
To enforce this EULA against each individual user would be difficult for CP. However, CP might try to take action against non-approved app makers. CP might assert that app makers who induce users to use non-approved apps are wrongfully:
* interfering with the contractual relationship between CP and the users; and
* committing the tort of inducing someone to violate the intellectual property of another.
CP’s owner might publish notices of the EULA as terms posted on the premises around the building. The terms might be posted as full sentences, or as references to a web address (Example: “Capturing images of the CP facilities is subject to terms published at www.caesarspalace.com/IPterms.”), or as a QR code.
A local government like the City of Las Vegas might adopt an ordinance to regulate the presentation of data over live images of territory and buildings within the city. The justification for the ordinance might be to preserve the beauty and decorum of the city scape, just as zoning laws do. That justification may not be compelling enough under the US Constitution to support restraining the rights of users and app makers to freedom of speech.
Mr. Wright teaches the law of data security and investigations at the SANS Institute.