Venable counsel Kimberly Culp was interviewed in an April 21, 2017, Inside Counsel article on the legal issues surrounding augmented reality (AR) in video game development. Technological breakthroughs and the growing use of smart devices are pushing the boundaries of already established intellectual property rules and breaking new ground as the technology evolves.
"With regard to the Web, litigation about overlays typically involves a robust discussion of whether the use is transformative," said Culp. "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."
She added, "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. 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."