United States: Really Virtually Here: The Emergence Of Virtual Reality As A Viable Film Medium And The Implications For Film Licensing And Clearances

Last Updated: November 11 2015
Article by M. Ryder Lee

Anything that appears in a film or television scene that is independently protected by copyright or trademark law generally must be licensed or cleared by its owner or rights holder. This can and does keep producers and production counsel very busy, and is often why many run-and-shoot reality television scenes include those blurred-out soda cans or background posters: somebody didn't (or couldn't) clear the rights to use those trademarks or copyrighted works in the production.

On the opposite end of that blurred-out-trademark spectrum are productions that actively sell strategic (often shameless) product placement. Obviously, permissive "clearance" for use isn't the issue here; nonetheless, the terms of those agreements tend to be very specific and require significant legal negotiation.

In the copyright context, not obtaining the proper licenses can be especially costly. Even the intermittent or fleeting use of a seemingly common background prop can lead to litigation if the work is protected by copyright and not cleared for use.

Clearances are nothing new for experienced producers and production counsel. But clearances present an entirely new set of issues in the growing world of interactive 360˚ filmmaking and virtual reality (VR) experiences. With the first VR film festival, Kaleidoscope, premiering this month in ten cities, it appears that VR films may be gaining momentum. Add to that the first decent consumer VR headsets hitting the shelves in 2016 (at least for gaming) along with ever-increasing graphics processing capabilities in devices and theoretically unlimited cloud-based data storage and streaming solutions, and it's safe to say that VR is (virtually) already here.

To understand how VR may present both problems and opportunities for filmmakers, legal counsel and third-party rights holders, it's helpful to first review the basics of VR films and filmmaking. VR footage is shot using a camera (or linked array of cameras) that simultaneously captures a 360˚ field of view and sound. The result is a "scene" that includes footage from the entire surrounding environment. Upon playback on (or in) a VR headset, the user essentially decides what specific perspective or field of view he or she wants to view in a given scene. This immersive experience is thus inherently subjective and infinitely dynamic due to its "interactive" or viewer-controlled nature. That is, in theory, no two viewers will have the same experience, and each individual viewer can experience the film in a new way every time. This is not easy to describe, so to get somewhat of an idea of how it works, check out this two-dimensional preview (and be sure to move your cursor around a la Google Maps Street View).

Now that we're hopefully on the same page, let's compare the workings and control processes of a traditional movie scene's production to those of a VR scene. On a traditional set, the filmmaker knows what's in a given scene's frame; that is, there are the things within the camera's (or cameras') field of view and the things outside and behind it. As such, what will ultimately be visible on film is relatively easy to select and control. More importantly, the extent to which something in the frame is visible or prominent can likely be further manipulated during post-production and editing. With a VR film, however, it's difficult to even call the environment a "set" or "scene" in the traditional sense; the set is the camera's entire perceptible environment, and a scene is more akin to a moment in time than a staged or controlled series of frames. Editing, at least for purposes of controlling what the viewer sees and for how long, is nonexistent if all of the viewer's perspective options are to remain open.

Now consider the implications of these fundamental differences to traditional film licensing and clearances. A comparative hypothetical of a short scene shot in the two different styles will help illustrate the issues. Assume the following ten-second scene is shot for a traditional movie: a handheld camera operator follows an actor into a bar. Rock posters and neon beer signs cover the walls. The patrons are drinking labeled beer. There seems to be a live band playing to the far right of the screen, but out of the shot. Cut.

Now assume also that the camera operator shot the same ten-second scene with a VR camera. Cut.

The first scene requires a slew of clearances. A license must be obtained from the owner of the copyright in the posters. Any rock stars on the posters may have rights of publicity that must be cleared. All of the beer trademarks on the signs and bottles might need to be cleared. The actual bar owner needs an agreement outlining the scope of permissions and responsibilities for using the venue on film. As for the music, licenses are needed for use of both the composition and – if it's not a live-band – the master recording. If it is a live band, the license will change accordingly. And the price of each example above will depend on the scope and type of use the filmmaker requires.

With the VR scene, however, it is impossible to know or control the scope of the use up front, because the individual viewer will control what is viewed, from what perspective, and for how long. The VR viewer might look at one of the posters for the entire duration of the scene or not at all. Or might focus on an attractive bar-patron actor for the whole ten-seconds, thus giving that patron's beer trademark a much bigger (and valuable) brand impression than did the passing glimpse in the traditional scene. As for the music, if the scene is intended to have a live-band feel, then it better have a live band; and the viewer may just watch that and ignore the rest of the room.

Obviously, this paradigm shift drastically alters everything about how scenes are shot and how stories are told. But for this blog, I'll focus on how filmmakers and production counsel might account for these ever-dynamic variables in clearing rights. Initially, I suspect, these issues will prove quite difficult. Eventually, however, I foresee two main licensing schemes proving practical. First, and most obviously, the clearances and licenses will simply need to be broad enough to cover the maximum scope of viewer "use" or experience. This will likely require more money up front to licensors. Alternatively, the licensing paradigm could shift more toward a back-end compensation model, with film distributors, rights holders and advertisers all recognizing an opportunity here: if they keep up with the technology and integrate audience metrics and analytics into VR headsets, they can track users to measure their view, impressions and reactions. Where the VR content is live-streamed (which, assuming adequate bandwidth for zero-latency, would be the preferred delivery given the size of the files), this could be done in real-time as the viewer's perspective "demands." While all rights holders would potentially stand to make more money under this model, access to the audience data alone may be sufficiently valuable to some licensors for them to give clearance. A licensing scheme that incorporates this quantifiable, value-added model into clearance negotiations could also curtail exorbitant up-front licensing fees, and streamline the process.

Admittedly, a purely viewer-directed, feature-length interactive VR film featuring live actors and a video-game-type realm of possible scenarios will not be coming soon to a headset near you. But it appears close. And, as someone prone to claustrophobia and motion sickness, I hope to find the legal implications of VR as exciting and immersive as the films themselves.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.