Rex, the ambitious young Director of a regional natural history museum, recently invited me to a tea to celebrate the opening of their new dinosaur wing. He sat me next to Tyrone, the museum’s senior paleontologist, who was so old that he had probably seen some of his specimens running around in the wild.
Rex knew of our firm’s expertise advising cultural institutions on using augmented reality (or “AR”) to overlay digital images on actual physical exhibits, and once the cookies were passed he wasted no time in raising this topic.
“Let’s use AR to flesh out our display of dinosaur bones with 3D animation to make the di- nosaurs come alive and interact with visitors!” Rex proposed.
He said he had heard of similar AR experiences offered by museums such as the Smithson- ian Institution’s Natural History Museum, where visitors can actually “pet” the dinosaurs by using motion-tracking technology and life-size digital models of the dinosaurs on a large LED screen. He knew that AR can also be a mobile experience, with visitors sometimes using “smart glasses” such as simple Google Cardboard or goggles (such as those made by Wearality) which have a wide field of view that makes the visitor feel truly immersed.
“I understand that augmented reality can induce nausea in a viewer,” harrumphed Tyrone.
“You’re thinking of virtual reality or ‘VR’, which is different from AR,” corrected Rex.
VR totally immerses the user in a virtual 3D environment that can be completely disconnected from the user’s actual physical environment. The disconnectedness can lead to conflicting cues from one’s body that may cause “simulation sickness.” In contrast to VR, AR “augments” or displays additional digital content in the AR user’s actual physical surroundings, such as by projecting 3D digital images over the actual dinosaur bones. Since AR is rooted in the real world, the viewer shouldn’t get nauseous.
“Wouldn’t we have to paste black and white QR codes on our exhibits to activate the aug- mentation?” asked Tyrone.
Now Rex was unsure, and turned to me for a response.
“Not so,” I interjected cheerfully. “Visitors can point their iPhones or iPads at almost any image to launch an AR experience – although the technology allowing you to do this is still cutting-edge. The experience can also be triggered based purely on where the viewer is standing, through location-based technology.”
“We don’t have the know-how, staff, or money to develop AR internally,” sniffed Tyrone, who was apparently descended from an early Grumpasaurus. “Remember the problems our colleagues at the British Museum faced when they tried to cut costs by doing this in-house?”
He was referring to the British Museum’s attempt to develop AR content itself using Junaio, a now defunct AR browser with a low barrier to entry. This attempt was not successful, with visitors reporting problems in accessing the AR content.
“Perhaps we’ll collaborate with an outside AR developer instead,” suggested Rex. “That’s what the Science Centre Singapore did when creating its Dinosaurs Live! application, and that’s what the Royal Ontario Museum did to produce Ultimate Dinosaurs: Giants of Gondwana, which later travelled to the Cincinnati Museum Center.
Tyrone busied himself with a scone, and Rex asked a different question. “In your experience advising museums on AR development, should we sign a ‘work for hire’ agreement with the AR developer?”
Rex was referring to an arrangement in which the museum becomes the author and owns the exclusive copyright to all the work product and final content created by the developer. If the developer is an independent contractor (as opposed to a museum employee), the museum would need a written agreement specifically stating that the developer’s contribution is a work made for hire.
“Actually,” I said, “in this case, ‘work for hire’ may be the wrong way to go. First, ‘work for hire’ tends to be more expensive because the developer typically wants to make its profit up front. Second, the museum is more likely to have a successful outcome if the developer has a real stake in doing a good job and staying engaged in the project on an ongoing basis. Some of our museum clients accomplish this by negotiating for a reduced development fee upfront — such as covering only direct costs on the project — in exchange for sharing revenue from the AR with the developer.”
“How do museums choose the right developer?” asked Tyrone, peering at me over his bifocals. “Do they stick with their existing audio guide company for this?”
In our view audio tour companies sometimes don’t have the requisite know-how, since AR is a leap into a new dimension — like moving from radio to film. I told Tyrone that we often advise choosing a developer who will let the museum guide it in presenting a rich, interactive storytelling experience with a focus on the artifact.
“If we asked an outside developer to create the AR experience of, say, a dinosaur flying through the museum, who would actually own that content?” Rex continued.
I explained that typically the developer might ask for copyright ownership in certain content that is not specific to the museum, such as generic backgrounds, interaction patterns, or types of simulations that the developer could create for the museum but might wish to reuse for other customers on other projects. In this case, the museum might ask for the right to at least debut such content.
“In any case,” I suggested, “whoever creates the content should indemnify the other party if a third party claims intellectual property infringement.”
“And the museum can’t lose its copyright in the dinosaur bones and fossils!” Tyrone groused into his cup of Darjeeling.
“Not to worry,” I replied. “The museum can’t lose the copyright because it never held the cop- yright in the first place. No one does.”
Tyrone gave me the gimlet eye. I explained to him that for a work to be copyrightable in the U.S., there must be an “author,” which is not the case with bones or fossils.
Tyrone wasn’t convinced by my explanation. Like a dog with a bone, he asked: “How about 3D digital models of dinosaurs created in augmented reality? Aren’t they copyrightable?”
The answer was “maybe,” since the case law in this area is still unclear. At most, the copyright would probably be weak.
I noted that digital models of dinosaurs would probably be considered “derivative works,” meaning adaptations based on pre-existing works, which themselves may be either copyrighted or in the public domain. Derivative works are normally protectable if they are sufficiently original.
“Nevertheless,” I continued, “depictions of dino- saurs likely have only limited copyright protection under the so-called ‘merger doctrine,’ which arises when there are only a few ways to express an idea.”
In Psihoyos v. National Geographic Society, a New York court found in 2005 that the “addition of flesh on fossil to show the dinosaurs as they may have looked in life is not protected under the merger doctrine,” because there are only a limited number of ways to depict a dinosaur with flesh.
The plaintiff in Psihoyos had photographed two fossils that appeared to be “locked in mortal combat,” and had commissioned an artist to illustrate how the dinosaurs actually would have looked. Later, the defendant published similar images of the same fossils for a magazine article. The court found that, since there were only a few ways to depict dinosaurs locked in mortal combat, the defendant’s images, while similar, did not infringe upon the plaintiff’s limited copyright in the original images.
Similarly, the 1987 Ninth Circuit case Aliotti v. R. Dakin & Co. found only weak copyright protection in stuffed dinosaur toys, noting that there is nothing protectable about portraying the predatory Tyrannosaurus Rex with its mouth open.
“That’s bad news for our museum store,” sighed Rex. “But what if the animation of a dinosaur includes creative additions not apparent on the dinosaur itself – such as special shading, lighting or coloring?”
Good question. The Psihoyos court found that if the dinosaur illustration includes creative additions that are not readily apparent on the fossil itself, then the addition of, for example, sagittal ridges, countershading, and even skin color could qualify for limited copyright protection, so long as these additions are the author’s original contribution. The Aliotti court similarly concluded that the “sleepy eyed style” and stitching of the plaintiff’s stuffed dinosaur toys were protectable as original contributions.
“In our case, who would own the underlying software used to develop the content?” continued Rex. “The museum or the AR developer?”
“What are some other questions we should consider when working with an AR developer?” asked Rex, who clearly didn’t mind making me sing for my tea.
On the back of a paper napkin I quickly sketched out a few suggestions:
1. How much AR content does the museum want to create, and how many other tradi- tional exhibition devices will supplement the experience?
For example, the Royal Ontario Museum’s exhibition featured only three “AR Stations” in its exhibition, meaning there were only three locations in the show where visitors saw digital enhancements of the exhibits.
2. Who controls creative content?
For instance, does the developer or the museum (or both) create the storyline and narration? At a minimum, we recommend that the museum have prior approval here. And once the content is agreed upon, may the museum rearrange or add to it? The museum might want the right to at least upload minor additional content, such as announcements for sales in the gift shop or changes that become necessary when an exhibition piece is no longer on view.
3. Will the project have milestones and related payment terms?
We typically see the following milestones, with a reasonable approval window: (a) preproduction, when the client sees the prototype, visualizes the final experience, and makes change requests; (b) the “Alpha Version,” which has the final functionality but not necessarily the final art, animation and audio assets; and (c) the “Beta Version,” when the software is complete and the focus is on quashing bugs — we hope. The parties should leave plenty of time to fix glitches and should avoid big changes at the Beta stage, since this will only lead to delay and expense.
4. Who should provide the hardware that will be used, such as tablets — which might provide a larger screen and better viewing experience, but do not give the same illusion of depth as stereoscopic vision — or smartphones inserted into stereoscopic goggles?
To make the visitor experience uniformly excellent, we suggest that the museum consider providing visitors with leading-edge hardware, as opposed to, say, letting visitors use their own clunky old phones. Recently, for instance, the Cincinnati Museum and Royal Ontario Museum offered a limited number of iPads in their exhibition.
5. Will the developer be using a rendering and simulation tool that most developers use (such as Unity, the leader in AR mobile apps)?
Doing so is probably a good idea since it will improve the “shelf life” of the project and make it easier for the museum to switch to other developers at a later date. Also, does the developer use software that is compatible with both Apple and Android? Some museums’ AR exhibitions expressly state that the applications are currently available for only Apple products.
6. Will the developer’s final deliveries include well-documented code?
This is important because if the museum hires a new team, that team will need to be able to read the documentation and understand the previously written code easily in order to get up to speed quickly. Since writing code can be like scribbling in messy handwriting, the developer should also insert good “comments” in the code – meaning written explanations of what the code is actually doing.
7. Does the museum have the right to make improvements?
Clearly, no museum wants to be held ransom by a software developer.
8. What is the installation and maintenance plan with the developer? Does it state how the digital content will be installed, whether the developer will train museum staff or provide its own people, and if it must perform reasonable maintenance and updates to the system?
Tyrone, who slowly seemed to be coming around, next asked: “Even if we jump through all the right legal hoops, are you sure AR won’t be a distraction to our visitors?”
My response: “Done properly, AR won’t diminish or replace the visitor experience – it’s just a unique way of filling out the story of the objects while creating epiphanies along the way. Visitors must still come here to see the actual pieces.”
“Besides,” Rex added, “the American Alliance of Museum’s 2016 Trendswatch predicted that AR will be an increasingly popular way to engage the audience.”
“You might have a point,” conceded Tyrone, with a faint glint in his eye. “We don’t want to suffer the same fate as our Brachiosaurus.”
Thomas and Charles Danziger are the lead partners in the New York firm Danziger, Dan- ziger & Muro, LLP, specializing in art law. Go to DANZIGER.COM for more information. The authors thank Katherine A. Brennan for her superb research assistance. Some facts have been altered for reasons of client confidentiality or, in some cases, created out of whole cloth. Nothing in this article is intended to provide specific legal advice.