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The Legal Issues of Augmented Reality Video Game Development

Augmented reality is pushing the boundaries of the established intellectual property rules, in game development.

(Credit: Getty Images/Antonio Gravante)

These days, intellectual property practitioners are facing a challenging and fast changing landscape when it comes to augmented reality (AR) video game development. Technological breakthroughs with AR and location-based data, coupled with the pervasiveness of "smart" capable devices in our everyday lives, bring about legal issues that were once unheard of or unimaginable. 

Kimberly Culp, IP attorney in the San Francisco office of Venable LLP, recently sat down with Inside Counsel to discuss the legal issues that are at the forefront of AR video game application development and the challenges businesses may be facing in the future.

Today, AR is affecting IP in the same way that almost all new technology affects IP: AR is pushing and testing the boundaries of already established rules. Since it allows digital media to be overlaid on top of the real world, an area to watch will be how AR companies address copyright issues, according to Culp. 

“With regard to the Web, litigation about overlays typically involves a robust discussion of whether the use is transformative,” she explained. “So far, AR technology has been rather transformative, but as AR becomes more commercial and ubiquitous, the application of this doctrine involving AR technology could be very interesting. “

Similar issues also arise in trademarks, although the legal standards are of course different. When a license to use another’s IP is or is not required could be murky for a while as each new AR application, right now, is likely the first of its kind. Purveyors of AR should pay close attention to what their competitors do to address and manage risk, according to Culp.

“AR also represents a significant leap, if you will, in terms of how IP is used in a video game. No longer is the user-experience dictated by the game designer,” she said. “There is a choose-your-own-adventure aspect to augmented reality gameplay, which also means that gamers are interacting with the intellectual property of others who oftentimes did not agree to be part of the game experience. For example, some brands may not want to be associated with certain kinds of AR technology.”

In addition, there are a lot of issues when you bring location-based data into gameplay. One of the most notable is data privacy and cybersecurity, in particular where children are playing the game. Age-gating, and perhaps other game designs, should be employed to verify the age of the gamer. Location-based data also opens certain advertising strategies and partnerships for AR technology more generally. 

Culp explained, “I was speaking with a privacy professional in the self-driving car space today, and she was convinced – as am I – that we will ultimately travel to work in self-driving AR bubbles, wherein we can do work, play games, receive advertising. Imagine the possibilities – and privacy challenges – if that car knows where you are and what you like.”

Further reading:

Augmented Reality and IoT: Enjoying the Ride, While Avoiding Legal Snafus

Using Computer Forensics to Investigate Employee Data Theft

Machines Are Organizing Legal's Data, But Not Fast Enough

Challenged by the Old and New, Corporate E-Discovery Hits a Wall

Contributing Author

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Amanda Ciccatelli

Amanda G. Ciccatelli is a Freelance Journalist for InsideCounsel, where she covers intellectual property, legal technology, patent litigation, cybersecurity, innovation, and more. She earned a B.A....

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