Make That a Virtual Taco
Author: Lance RoseLance Rose
A recent Supreme Court decision - on fast food franchises, of all things - casts doubts as to whether copyright will be the primary means of establishing intellectual property rights in virtual environments.
The prophets of virtual reality promise that we will soon have access to convincing computer-based simulations. Projections for the uses of VR technology range from long-distance video conferences to armchair tours of other continents and planets. With a potentially enormous industry and some very large investments at stake, prudent investors will hunt down all effective methods of keeping their VR assets from being copied without charge.
A major legal tool for defining the "virtual real estate" of the future will likely be found in an esoteric branch of trademark law known as "trade dress" protection. Normally, trademarks are brand names or logos indicating the source of a commercial product. But through trade dress, trademarks have been extended to brand-indicating design features of the products themselves, such as two-tone drug capsule designs or the swishes and swirls on the sides of sneakers.
The boldest use of trade dress law yet is to create property rights in the decorative motifs of fast-food restaurant chains such as White Castle, Pizza Hut, and Taco Bell. This trend was recently endorsed and furthered by the Supreme Court in the case of Two Pesos v. Taco Cabana, where the owner of a chain of Tex-Mex fast-food outlets sued a competitor for copying its design. Before the Two Pesos decision, a franchiser claiming to own the very decor of its restaurant had to prove that customers associated that decor with the franchised services. But the Supreme Court ruled that a distinctively designed restaurant interior can be treated as "property" under the trademark law from the day the restaurant is opened, regardless of whether customers ever perceive it as a trademark.
With this ruling, trade dress law has developed sufficiently to apply directly to virtual realities. Fictional or fantasy VR environments can be configured as one immense collection of trade dress features, from the color scheme to all of the surface decorations and arbitrarily chosen shapes.
This possibility of configuring a virtual reality almost entirely as a trade dress property asset, coupled with the extremely high costs of developing sophisticated virtual reality environments for at least the next few years, means that "ownability" of the environment and its contents will likely be one of the prime design criteria for virtual realities. An investor may be willing to contribute a much larger amount if the VR producer makes assurances that the resulting VR world will be protected from knock-offs under trade dress laws.
Will there be any laws barring investors and VR producers from marking off all of VR as property under the trade dress laws? One major limit of trademark law will doubtless apply - the "functionality" exception. One cannot own the general shape of a chair used in a restaurant today under the trade dress laws, because that would prevent others from using chairs of any kind. One can only own the use of a certain design of chair as part of a certain restaurant environment. This limit should carry straight over to VR - VR producers will be able to stake out ownership of the motifs and design concepts for entire environments and their contents, but not the underlying or basic functional structures.
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