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.

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