United States: Legal Issues To Consider For Projects That Utilize Virtual And Augmented Reality

Last Updated: July 15 2019
Article by Raymond Tran and Anthony J. LaPlaca

Developments in virtual reality (VR) and augmented reality (AR) have undoubtedly streamlined traditional design and engineering methods. With VR technology, users are able to fully imagine themselves in a realistic replication of a physical space (think head-mount displays). AR technology supplements what can be imagined in the actual world by adding computer generated images (think Pokémon Go). By utilizing software and devices to map physical space in virtual environments, VR and AR technology allows parties to a construction contract to mitigate the risk of design defects and the inevitable claims and litigation that follow them. VR and AR sectors are predicted to generate $150 billion by 2020.1

Using VR and AR technology reduces overruns related to accidents, delays, and design efficiencies, by providing more accurate, meaningful details, replicas, and simulations earlier in the construction process.2 Another major benefit of VR and AR technology is that it allows end users to engage with the design process earlier. For instance, take a hospital renovation project that specifies wall-mounted equipment in each patient room. Using VR, the hospital staff can virtually tour the room to confirm that equipment is the proper distance from the patient's bedside and that the other facets of the project meet their design expectations. In the same vein, tenants who are wary of the impact of renovation project on their living space can actually walk through the project before expending a great deal of resources, to ensure that the design concept is to their liking. By allowing a user to virtually walk through the project, interact with a superimposed design, and modify designs with greater accuracy issues can be identified earlier and informed decisions regarding changes across various contractors and subcontractors can be made faster.3

This technology provides a new tool for parties involved in construction litigation.4 Imagine walking jurors through a digital rendering to show them the extent moisture migration caused construction defects instead of explaining the degradation of a wall due to water gradually collecting within a stud cavity. Attorneys can transport jurors inside the construction details that can be moved, walked around in, and examined. This would involve coordinating expert evidence to educate the court on the technologies involved; but just as videos and computer models make their way into evidence, it is likely that VR and AR will find its way into construction litigation for its educational and persuasive value.

Avoiding VR and AR related litigation will require parties to design and construction contracts to consider:

  • Ownership of VR and AR generated renderings. Ownership or IP issues pertaining to the use of VR and AR should be discussed early on in the project's life, and drafted into the contract. Digital renderings created with VR and AR software upon hire may provide copyright protection for the creator of the rendering for ninety-five years.5 Under the U.S. Copyright Act, the creator of an original work created in a tangible medium may prevent others from copying or using that original work for a certain period of time, but does not provide protection against similar or near identical works that were independently created without knowledge of the original work.6
  • Whether to explicitly require the use of VR or AR technology or prohibit it.
  • What constitutes a breach of contract. Under what circumstances would parties conclude that a resulting building does not look like the VR or AR rendering. What functions or disclosures are embedded into the technology system to ensure clear expectations are being communicated?
  • Allocation of liability. If the construction contract does not require the use of VR or AR technology, which party is responsible if the technology was improperly used? If a construction contract does require VR or AR technology, who bears the burden to prove whether VR or AR could have prevented the problem?
  • Security of the technology. VR and AR is not immune from theft or hacks, and a virtual rendering of a highly secured bank might be of interest to some malicious third-parties. How are virtual or augmented reality depictions of a project protected? What data is being collected, and is that data available to others?
  • Whether the use of VR and AR technology warrants including mandatory arbitration clauses or class action waivers in construction agreements.

VR related litigation can be avoided if parties clarify their roles and relationships before sharing ideas and creating material for a project.7 To formalize the understanding of rights and expectations of all parties involved at the outset, parties involved in construction deals involving VR and AR technology need to update their checklists to:

  • define the licensor and licensee of the VR or AR technology in the agreement, or create an entirely separate development agreement that identifies the rights and responsibilities of involved parties;
  • convey ownership rights to existing and to new creations by (a) reserving title in preexisting intellectual property, and (b) defining the scope of ownership rights to any newly created intellectual property. Provisions involving ownership rights should also establish (i) future exploration rights (e.g., can a party repurpose the VR rendering?), (ii) exclusivity, and (iii) territorial scope;
  • include confidentiality and non-disclosure provisions that (a) protect information learned from virtual or augmented reality depictions, and (b) require formal consent or release for renderings or creations to be repurposed or shopped around; and
  • provide for adequate due diligence, including (a) a thorough check for infringement on third party rights, and (b) ensuring that commercial general liability insurance policies cover personal injury and property damage resulting from the use of AR and VR technology in the construction project.

Footnotes

[1] Tom Garner, Digital Trends: Why 2017 will be shaped by VR, AR, AI and personalized digital assistants, Newsweek (Jan. 3, 2017) https://www.newsweek.com/virtual-reality-virtual-reality-sets-phones-technology-537969.

[2] Andreas Rivera, How Virtual Reality is Changing Construction, Business.com (April 2, 2018) https://www.business.com/articles/how-virtual-reality-is-changing-construction/.

[3] Kyle Mallinger, How Augmented Reality Will Innovate BIM Visualization, Forbes (May 14, 2018) https://www.forbes.com/sites/forbescommunicationscouncil/2018/05/14/how-augmented-reality-will-innovate-bim-visualization/#5c52ce586fb5.

[4] Stephen Embry & Jenna Wolfe, AR/VR Technology: Where We've Been, Where We're Going, Law Practice Today (June 14, 2017) https://www.lawpracticetoday.org/article/augmented-reality-virtual-reality/.

[5] Schuyler Moore, The Legal Reality of Virtual Reality, Forbes (Mar. 10, 2017) https://www.forbes.com/sites/schuylermoore/2017/03/10/the-legal-reality-of-virtual-reality/#18f53ca02049.

[6] Id.

[7] See generally, ZeniMax Media, Inc. v. Oculus VR, LLC, 166 F. Supp. 3d (N.D. Tex. 2015).

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 Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions