Flip back through articles, columns, tweets and other prognostications from marketing pundits over the past decade plus, and you’ll see a common theme: it’s going to be a big year for virtual reality (VR) and augmented reality (AR).

And finally, that time has come. Well, sort of…

While we’ve been teased and tantalized about the potential of these awesome technologies, the time finally seems just about right for their proliferation — at least for one of the two platforms. That’s the reality of new marketing technologies; once they reach a critical mass of brand and consumer buy-in, legal challenges naturally emerge as we explore their full potential.

In the case of these perception-altering platforms, it’s VR that’s experienced a downshift in momentum. This can be chalked up to some initial legal growing pains, including  high-profile  lawsuits, as well as a higher cost of entry that comes with creating the made-from-scratch, licensed intellectual property necessary for executing VR experiences – not to mention the potential for significant added costs for high-end viewing equipment . On the other hand, AR, in which computer-generated imagery is superimposed onto real-world content, is expanding much more rapidly due to its lower costs of entry and more widely available technology. This tech is versatile, too. Consumers can use the same functionality to point their phone at a pair of skinny jeans to virtually try them on as they can to place a mid-century modern table and ottoman in their living room to see if it fits their Feng shui.

My colleagues — Richard S. Eisert, Josh J. Gordon and Maxine Sharavsky Garrett — outlined the divergent paths AR and VR are taking in “As Augmented Reality Engagement Increases, Novel Legal Issues Arise.” The article, written for Davis & Gilbert’s Trends in Marketing Communications Law publication, also cautions that despite AR’s momentum — fueled in part by new technology that facilitates user experiences through a web browser that eliminates the need to download a unique app for each program — legal challenges may be on the horizon.

One nebulous area is the scenario in which brands distribute hybrid creations of new and existing content that prompts consideration for copyright and trademark laws. A similar area of concern occurs when consumers do the same. For example, copyright questions circle around whether marketers who design augmentations and adornments for famous, copyright-protected statues (e.g., with clothing and sunglasses) require a license for derivative works. Meanwhile, the discussion of trademark law implications center around tarnishment, such as the scenario in which a marketer causes a well-known trademark displayed in the real world to appear differently on a user’s smartphone screen through an AR application.

Time will tell how the courts sort out AR and potential issues of intellectual property infringement. Because the technology is still relatively new, it’s enjoying a honeymoon of sorts. But as AR grows from trending tech du jour to a staple of consumer engagement, marketers and their agencies should carefully consider how existing intellectual property frameworks may be applied to this new medium, so as not to avoid a costly reality check.

The Way I See It

  • When it comes to new-ish tech looking to alter our realty, AR’s expansion has surpassed that of VR thanks to the technology’s lower barriers to entry.
  • That said, there is a big caveat we need to keep our eyes on: AR’s potential copyright and trademark complications — pertaining to the creation and distribution of derivative works and to tarnishment, respectively.
  • For now, marketers and their agencies looking to leverage the use of AR applications should see a yellow light – at least to the extent they want to integrate any third party intellectual property as part of the experience – exercising caution and consideration as such use may irk third-party brands and content owners.