By Vladimir Samoylov
Immersive art is in simple terms a created environment that one can immerse oneself in and experience from within. It is unlikely to come as a surprise that exceptional immersive works of renowned artists such as Yayoi Kusama attract copyright protection. According to the High Court in Dreamtech Designs & Productions Pty Ltd v Clownfish Entertainment Ltd  NZHC 1143 (Dreamtech Designs) however, copyright protection may also extend to immersive environments, such as theme parks and funhouses.
If this is the case, then perhaps, immersive multisensorial Virtual Reality (VR) environments can attract copyright as well, but should they?
In Dreamtech Designs, the defendants, Clownfish Entertainment Ltd, (Clownfish) argued that the plaintiff’s, Dreamtech Designs & Productions Pty Ltd (Dreamtech), house comprised of maze-like rooms, was not an artistic work, but rather a mere concept or idea, which cannot be copyrighted (at ).
Woolford J however, held that it was a serious question to be tried (at ), reasoning that Dreamtech’s rooms, were not unlike the works of many contemporary artists, who “…create similarly immersive experiences in their art, through which visitors can walk…” (at ). This was an interim injunction case. The parties eventually settled – so the question was not actually tried in court.
Meow Wolf is an example of a group of contemporary artists who have formed a company that produces immersive environments. Their work has been described as a place where “artists are front and centre”, an “immersive bazaar” (Rachel Monroe, “Can an Art Collective Become the Disney of Experience Economy” The New York Times Magazine (online ed, New York, 1 May 2019).
Similarly to Dreamtech’s rooms which consist of objects such as bouncy swiss balls, stretched out elastic cord, mirrors and lights (Dreamtech Designs at ), Meow Wolf’s works are also comprised of a variety of disparate objects.
When Meow Wolf were first starting out, their immersive works were made up of objects such as abandoned furniture, discarded materials from industrial zones and other odd scraps. Rachel Monroe says they would then transform what was essentially trash into magical forests or futuristic cityscapes. As their success grew and they were able to afford more materials, Meow Wolf began to create even more elaborate immersive attractions. One such attraction was a 73 foot (22 metres), two-storied explorable ship filled with gangplanks, interactive light elements, as well as fanciful flora and fauna. Over the three months that the ship was on display at Santa Fe’s Centre for Contemporary Arts, it was visited 25,000 times, says Rachel Monroe.
Immersive art is analogous to VR
The works of Dreamtech and contemporary artists such as Meow Wolf are at their core multisensorial experiences. The aim is not to draw the visitor’s attention to any of the objects within the particular environment, but rather to engage them in an aesthetic experience. A designer interviewed during empirical research for my doctoral thesis described an aesthetic experience as an “…emotional experience…perceived…through your different senses.”
The objective of VR is also typically to engage the participant in an immersive multisensory experience, as one creator, working in the field, explained: “…my game… is a virtual reality full immersive experience. It’s about empowering your inner feminine. You dance with goddesses... It’s about connecting your body with your mind… It’s a full body game and sensory experience.”
Does it make sense, today, to extend copyright protection to multisensory VR expression?
Although creators in the VR field are certainly utilising a variety of prototype technology such as haptic gloves, 360-degree treadmills and scent expellers in their efforts to create fully immersive multisensory virtual experiences, for the most part, VR expressions are currently (as commercially available at least) limited to the auditory and visual senses.
As the technology for non-visual or auditory senses is still at the early stages of development, creators in the VR field are unlikely to seek copyright protection for their non-visual or auditory expressions anyway, as these experimental works are currently of little commercial value. An analogy can be drawn to the video gaming industry in the 1970s, when video game developers generally invested in innovating rather than litigating. See Greg Lastowka “Copyright Law and Video Games: A Brief History of an Interactive Medium” in Matthew David and Debora Halbert (eds) The SAGE Handbook of Intellectual Property (SAGE Publications, London, 2014) 495 at 500.
Moreover, the simplicity and lack of creativity of early visual expressions in games such as Pong, made them unlikely candidates for copyright protection (see Lastowka). During the early stages, it was difficult to clearly discern original creative expression. Similarly, in most cases, it is currently difficult to discern originality in VR expressions for the non-visual or auditory senses. At this time, such expressions are usually more synonymous with general ideas and therefore should not be protected (Enrico Bonadio and Nicola Lucchi “Introduction: setting the scene for non-conventional copyright” in Enrico Bonadio and Nicola Lucchi (eds) Non-Conventional Copyright (Edward Elgar Publishing, Cheltenham, 2018) 1 at 14).
Granting exclusive rights to creators in such work, is likely to force competitors to tread more carefully in the creation of their own works so as not to risk infringing the copyright (Christopher Buccafusco, Mark Lemley and Jonathan Masur “Intelligent Design" (2018) 68 Duke LJ 75 at 83). This is not in the public interest, as it slows development in the field, says Anthony Reese in “What should copyright protect?” in Rebecca Giblin and Kimberlee Weatherall (eds) What if we could reimagine copyright? (ANU Press, Australia, 2017) 111 at 137). He says this sometimes dissuades individuals, who may be more creative, from contributing.
Protecting multisensory VR expression in the future
As was the case with the visual and auditory expressions in games, it is foreseeable that VR expression for the non-visual or auditory senses will significantly improve in time as well. As one creator working in the VR field explained: “The way we see the future is everyone wearing augmented reality glasses, and probably gloves or haptic sensory chips, if people are set on having haptic feedback, so that you could feel virtual objects with your fingers. So people will no longer be carrying phones around.”
As the technology improves, those creating expressions for non-visual or auditory senses for VR, will become increasingly interested in protecting the expressions themselves (Rana Ansari and others Augmented and virtual reality: emerging legal implications of the “final platform” (white paper prepared by Reed Smith LLP 2017) at 1). Certainly this was the case with video games. As video games became increasingly intricate, the number of copyright infringement claims increased accordingly (Greg Lastowka, at 500).Similarly, it is not too difficult to imagine VR creators wanting copyright protection in their multisensory expressions, in a world as envisioned by another creator working in the VR field, which has us “living in white boxes and everything is created virtually”.
As originality in non-visual or auditory expressions becomes increasingly discernible the notion of extending copyright protection to such expressions will likely seem more and more sensible. As with other copyright works, increased originality in non-visual or auditory expressions is likely to be the product of increased investment, not only of money, but also significant time, labour and creative effort. In economic terms, the provision of a period of exclusive right to the creator, serves the public interest because it provides recourse against those who freeride on another’s investment (Rebecca Giblin “Reimagining copyright’s duration” in Rebecca Giblin and Kimberlee Weatherall (eds) What if we could reimagine copyright? (ANU Press, Australia, 2017) 177 at 181). From another standpoint, copyright protection for multisensory virtual expressions could be seen as reflection of society’s gratitude for the creation, as well as recognition that it is deserving of protection, says Rebecca Giblin. From an equal treatment perspective it would be unfair and discriminatory to not extend protection where the creation is seen as being creatively worthy of reward (Enrico Bonadio and Nicola Lucchi in their introduction to Non-Conventional Copyright).
In Dreamtech Designs, Woolford J, reasoned that a funhouse, which is an immersive multisensory experience, can arguably be protected via copyright. It is foreseeable that fully immersive multisensory experiences are the future of VR. However, the technology is not quite there yet, and so, care should be taken in discerning originality in virtual expression for the non-visual or auditory senses. Copyright protection should not extend to expressions communicating to senses other than auditory or visual until the originality of such expression is clearly discernible. At the current stage of VR development, this is unlikely. It is however, foreseeable that such expressions will, in time, become discernible.
Vladimir Samoylov email@example.com is a solicitor who recently completed his PhD. His research focus is intellectual property protection in light of advances in technology such as Virtual Reality and 3-D printing. Names of interviewees during his doctoral research are omitted as required by the University’s Human Ethics (approval number 0000023662).