Rights to User Generated Content in a VR World

Abstract

Virtual reality (VR) generally refers to an artificial environment, constructed using a computer and presented to the user in such a way that they feel they are inside an alternate world. In 2016, VR - the experience of exploring 360 degree photos and videos and to interact with computer generated characters and objects inside virtual worlds - has finally (after years of development) shown mass market commercial promise. While much of the VR revenue is currently being captured by hardware and software makers, it is not difficult to imagine value being captured by licensing access to user generated content (UGC) in VR. For example, as with videogames and professional sports, it might be possible to monetize the experience of watching players of exceptional ability as they play a VR game (e.g., gameplay by someone engaged in a VR eSport). Alternately, offering a global audience the opportunity to explore a work of art created by a master in VR (perhaps as the master is creating the work) could also present a source of revenue. Stakeholders, including VR app developers, gaming platforms and game production companies, will likely want to control revenue from UGC as it is in their commercial interest. In this article, we explore the potential for right of publicity, performance rights, and copyright protection for UGC in VR. VR has only been commercialized very recently and there have not been court decisions concerning the ownership of user generated content in a VR world. Therefore, to consider some of the legal questions that we anticipate will arise around VR, this paper examines court cases regarding the next closest forms of entertainment - video gameplay and sporting events. Having examined the court decisions and considering the room for creativity and performance given to VR users (in our view, significantly more authorship and protectable performance than that of video game players at the time of the court decisions), we conclude that in many circumstances UGC in VR could give rise to content that is protectable. In other words, at what appears to be the dawn of commercial VR, the question(s) at issue may not be whether UGC is protectable, but instead what rights exist and who has ownership of VR UGC.