Facebook Inc., Alphabet Inc.’s Google and other tech companies are developing ever-more-realistic environments for virtual reality products to allow users to immerse themselves in a video game, shop for clothing, or do a variety of other tasks that used to require a physical presence. But legal specialists and attorneys told Bloomberg BNA tech reporter Alexis Kramer that a key aspect of virtual reality is running into some tough legal questions.
Companies and individuals that create avatars that resemble celebrities or famous people could face right-of-publicity litigation, Kramer said in the latest episode of Bloomberg BNA’s Code & Conduit podcast.
Famous people traditionally have used right-of-publicity laws to control the use of their name, image or likeness for commercial gain without their consent, Kramer said. As no federal law exists, cases depend on states’ common laws or statutes.
The best way to avoid a right-of-publicity case is to ask permission of the celebrity to use their image, Kramer said. Companies can try to defend themselves by adding elements to avatars that transform them into a different enough entity to be considered protected free expression, she said.
Still, ‘different enough’ can be difficult to prove, Kramer said.
“If that avatar looks a little bit like a celebrity, but there are so many other elements that make it different, that would be transformative,” Kramer said. “But it’s all subjective, and it’s a balancing test.”
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