More thoughts on virtual property rights and advertising

In response to my earlier post on Google’s move to start replacing billboard advertising in Street View, @jasonjkee asked, “Didn’t this issue arise when Times Square billboard ads were replaced in 1st Spiderman movie?”

It’s related, but I think it can be distinguished from this situation.

First of all, you can read a summary of the case on the Trademark Blog. In Spiderman, Sony created digital renderings of Times Square — not photographic reproductions of the actual Times Square. Then they changed the advertising appearing on the billboards there. The owners of the real life buildings sued Sony for trade-mark and trade dress infringement and in trespass.

The district court dismissed all claims. Summarising that decision, Martin Schwimmer of The Trademark Blog wrote,

The district court dismissed the trademark claim on the ground that no purchaisng decision was affected by the change; the trade dress claim was dismissed because the advertisements were changed so often that there could be no protectable trade dress; and the trespass claim was dismissed because taking the digital photograph of the buildings was not deemed to be the sort of actionable contact with physical property recognized as trespass.

The Second Circuit Court of Appeal affirmed the dismissal.

While the digital renderings in the Spiderman movie were based on digital photographs of the real life buildings used to create digital models of the buildings, which is similar to what Google does with Street View, there is at least one important difference between the Sherwood v. Sony case and any potential litigation if Google were to replace advertising in Street View images.

In the movie, while the scene was a recreation of a particular real place, it was just a fixed (albeit moving) image that was not presented as being tied to that location. Yes, it represented Times Square, but it was itself not presented as Times Square, in the sense that the audience was not in any sense at Times Square in that scene of the movie.

Geolocating the images, tying them to a map, and giving people the ability to move through the images as though they were moving through Times Square itself gives the whole problem a very different feeling. When you navigate to a particular place in Street View and move around in the images, you are, in a sense — a virtual sense — in that place. Which is why I thought of it as potentially a Real Property Law issue rather than an Intellectual Property Law issue.

And anyhow, if Google starts selling the rights to advertise on billboards in Street View, replacing existing advertising in those images, they must think they have the rights to do that, in which case they would theoretically have the rights to replace the Yahoo! sign in Times Square with the Google logo. Is it conceivable that that would not be some kind of problem?!

Note that I am not saying that I think there would be a good claim to be made in such a case, not least because of the enforcement and scope problem. It would be tantamount to claiming the right to control the content in all gelocated images of property, which would be impossible in practice. I just think the issue is going to get very real if Google starts doing this.

Issue of virtual property rights is getting real

All those outdated billboards in Google Street View aren’t just an eyesore; they’re a waste of money-making opportunity for the big G, apparently. But not for long.

Google’s filed a patent entitled “Claiming Real Estate in Panoramic or 3D Mapping Environments for Advertising,” and it should allow them to automagically cut out billboards shown in Street View and replace them with their own current ads.

In theory, this would be done in concert with whoever owns the space, so a theater owner could keep the posters out front up to date at all times. This seems to be the only way for Google to get away with doing this, as if they suddenly started sticking ads on other people’s property without their permission, things could get ugly fast. [Telegraph]

I knew the early interest in legal issues in Second Life would amount to something eventually!

Does the owner of title in real property have a right to control geolocated images of that property? If so, is it a property right? If they do not control it, and somebody else puts their own images in their place, is that adverse possession? (and would adverse possession still be possible since there is no land titles for images?)

Or is it an intellectual property right, since these are intangible assets?

Or perhaps something different — some sort of a contract interest, rather than a property interest at all, or a sui generis property right?

All of which would seem very esoteric were it not for the large amount of advertising money on the table.

uOttawa wins awards at Harold Fox IP Moot

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I had the honour ofcoaching the team that the University of Ottawa sent to the Harold G. Fox Intellectual Property Moot.Today, they come home with both the Gordon F.Henderson Award for the best factum writers and the Donald F. SimAward for the best oral advocate.

Four University of Ottawa students participated: Adrian Howard andSherif Foda argued for the appellant, and Matthew Paik and TavengwaRunyowa argued for the respondent. After two preliminary rounds, Adrianand Sherif advanced to the semi-finals along with only 3 other pairsout of the 16 pairs participating. They argued their case valiantlybefore Justices Sharlow (FCA), Sharpe (Ont CA) and Blair (Ont CA) andreceived excellent feedback on their mastery of the material and theirpresentation.

For their efforts, Tavengwa and Matt won the Gordon F. Henderson Awardfor the best factum writers, and Adrian won the Donald F. Sim Award forthe best oral advocate. Adrian acknowledged the efforts andaccomplishments of the rest of team, noting in his acceptance speech,”This is an individual award for a group effort”. The final round wasMcGill (Pierre-EmmanuelMoyse coaching) and Western (MargaretAnn Wilkinson coaching), and Western’s team won the cup.

 The University of Ottawa team did very well with a complex problem(PDF) on copyright and trade-marks. As their coach, I am very proudof the team. I am extremely impressed with their research and writingskills and their ability to internalize the case law in order toconstruct new arguments in each round of the moot as they encounterednew teams with novel approaches to the problem.

 Adrian Howard is the VP of the Law &Technology Student Society, a third year law student, and a futurearticling student at Gowlingsin Ottawa. Sherif Foda is a second year droit civil student.Tavengwa Runyowa is a second year common law student who istaking online WIPO IP coursesin his spare time. Matthew Paik is a third year droit civil student inthe LL.L/DVM(international development and globalization) program. Congratulationsto each and all!