The Rise of the Geo-tag Vandals. Could this be a new sub-category of copyright infringement?

On 3rd October, Snapchat launched its collaboration project “Art All Around You”, an art initiative aimed at raising the profile of well-known and lesser known artists with the world by geo-tagging images of iconic works of art across the augmented reality landscape; one example was Jeff Koons’ balloon dog in Central Park, NYC.  Some lauded the opportunity for freelance creatives to:

1) widen their appeal and reach, particularly to younger generations (the main demographic of Snapchat); and

2) provide another income stream to capitalise on their artistic creations.

Others, had a different take…

Sebastian Errartiz, a New York-based artist, posted his point of view on Instagram but he went further by setting up a new app with his team at CrossLab called ARNYC, and superimposed a graffiti-bombed version of the exact Jeff Koons balloon dog image in the same location coordinates where the original Jeff Koons balloon dog had been geo-tagged on Snapchat.

Here begins a very futuristic war: the Davids, or freelance creatives vs. the Goliaths, the corporates (or quite literally an un-Philistine and very large balloon dog sculpture).  Errartiz’s expression of protest may be the very first example of “vandalising” a geo-tagged augmented reality digital space.  However, he raises some important questions.

Who should own digital public spaces and should corporates be allowed to get first pick of those augmented reality public spaces? He states:

“It is vital to start questioning how much of our virtual public space we are willing to give to companies. Right now such sculptures exist in a realm dominated by social media corporations, offering us ‘free’ services that we voluntarily join. Nevertheless, with time, the boundaries between reality and virtual reality fade.”

“The virtual world, where the majority of our social interactions take place, becomes our reality. Once we begin experiencing the world predominantly through AR, our public space will be dominated by corporate content designed to subconsciously manipulate and control us. If Snapchat X Jeff Koons are the first to create a geo-tagged augmented reality corporate artwork, we will be the first to vandalize it as a way to question its legitimacy.”

The questions raised by Errartiz are not new, but they’re also not developed.  A similar discussion came to light around the time when Pokémon GO released its augmented reality video game last year.  However, the issue related to Boon Sheridan’s private residence.  He tweeted: “Do I even have rights when it comes to a virtual location imposed on me?  Businesses have expectations, but this is my home”.  His residence, an old church in Massachusetts, had been designated a “gym” in the virtual reality game – a place where Pokemon GO players can battle each other.  In short, although his problem became a nuisance in the physical realm, he rightly questioned his ownership rights in the virtual realm.

I cannot help but think however, that Errartiz’s geo-virtual political symbol could be seen as the first (albeit metaphorical) example of a copyright infringement claim in augmented reality proportions.  Unfortunately, I cannot comment here on Snapchat x Mr Koon’s collaboration terms of agreement, but I can imagine that, from a UK perspective, some permission was given for Snapchat to legally use adaptations (photographs) of Jeff Koon’s work in some way.

However, Jeff Koons himself is no stranger to enforcing his intellectual property rights.  In 2011, Koons’ lawyers sent cease and desist letters to companies that had created bookends in the shape of balloon dogs.  It was argued that the bookends were illegal adaptations of the artists’ balloon dog sculptures.  Koons’ case naturally failed since he did not benefit from IP rights over a shape that already existed in the public domain.  In the Snapchat x Jeff Koons / Errartiz saga however, the exact image of Jeff Koons’ balloon dog has been used in another app, most likely without the express permission of Koons himself.

The geo-virtual space remains a fast-growing area that will continue to throw up all sorts of challenging legal implications, but it’s the intellectual property issues that the Briffa team will be keeping a close eye on.