A world where virtual beings also need real protection.
Imagine a scenario in which you can talk to, dance with, and even marry your favourite celebrity. The difference here is that the celebrity isn't even a real person.
The continuous development of virtual reality and artificial intelligence technology has moved many aspects of our lives into the digital realm. It is inevitable that the lines between the real world and the virtual world will start to blur, as new innovations require interaction between both worlds. One such innovation is virtual beings and they are already here and growing at a frantic pace.
A virtual being is a digital character created using computer technology. They include agents that are computer controlled and avatars that represent real people. The most important element that distinguishes virtual beings from other characters is that they directly interact and communicate with people. Virtual beings are rapidly gaining influence, dictating trends across the entertainment, advertising and media industries.
Because the rise of virtual beings is relatively recent, there is inevitably a protection gap between the speed of advancement and the protection available. With many industries rapidly adopting them, virtual beings will be at the forefront of precedent-setting IP developments, as IP laws across many jurisdictions have not evolved to accommodate their protection. This is the first contribution in a series of articles that addresses potential IP issues.
What is a virtual idol?
A virtual idol refers to an artificially created virtual being that sings and dances, much like real life idols, but they can inhabit the virtual and/or real world. The first notable example of a virtual idol is Hatsune Miku (????), which began as a personification of a voice synthesis software called Vocaloid. Hatsune Miku has since amassed a massive fanbase, releasing multiple albums and holding hologram concerts around the world. The success of Hatsune Miku has spawned the creation of related virtual idols such as China's Luo Tianyi (???).
Virtual idols were then enthusiastically adopted by gaming companies. In 2018, Riot Games debuted KD/A, a virtual girl group, to market their video game League of Legends and their in-game products (e.g. character skins). The first leg of the promotion unveiled a live augmented reality performance onstage where KD/A performed with real-life singers. KD/A proved to be a sensation for both gamers and music fans alike. Their first song reached No. 1 on Billboard's World Digital Song Sales Chart in November 2018 and its music video surpassed 100 million views in one month on YouTube. KD/A's success has allowed Riot Games to evolve from a traditional gaming company to a next-generation multimedia entity.
The popularity of Hatsune Miku and KD/A has led to the development of a new category of virtual idols - ones that are based on real people. In May 2020, rapper Travis Scott held a virtual concert tour on Fortnite, a video game created by Epic Games. Players were able to gain a unique immersive experience by simultaneously watching his virtual avatar perform and interacting with the concert venue, which consisted of a set of visually stunning game maps. The premiere concert drew a record turnout of 12.3 million attendees, with a total of 27.7 million players participating in the event. In comparison, the attendance of the highest grossing tour of all time, Ed Sheeran's ÷ Tour, had only 8.8 million attendees. The unexpected success of the concert tour has triggered more developments of virtual idols based on real people.
On 28 October, Korean entertainment company SM Entertainment introduced their new idol girl group aespa, whose concept combines real-life members with virtual members. Aespa involves "artist members that exist in the real world and avatar members that exist in the virtual world, which 'interact and communicate' through the digital world, a space between reality and virtuality."1 It is important to highlight that the virtual members in the group are not original characters, but are avatars based on the real-life members.
The simultaneous debut of real-life members and their virtual counterparts raises the question of to what extent can IP laws protect the respective rights of the two. If the virtual members were solely characters that were created, then they would be protected mainly by copyright laws. In this case, however, the avatars are based on real humans, leading to tricky legal issues, as authorship, copyright laws, publicity and personality rights are involved.
The development of a virtual idol is usually made up of a team of engineers, content creators and artists from the same company. However, some companies may outsource parts of its development to other entities. If a virtual idol is created by several different parties, who would hold the rights and how would they be distributed? If real-life idols were also involved, this area could become very complex indeed. The answers for these questions will most likely be decided on a case-by-case basis and would need to be clearly addressed in contracts between all parties.
Copyrights and Publicity Rights
Publicity rights, also known as image or personality rights, is the right of an individual to control the commercialisation of their identity, such as their image and likeness. If a third-party decides to use the image of the virtual avatar without authorisation, the real-life members would also be entitled to rely on publicity rights as the avatars are based on their appearance and are also used commercially.
IP issues between the artists and the party owning the virtual idols are more complicated. Assuming SM Entertainment holds the ownership over the virtual idols, what would happen if the artists' contracts are terminated or have ended? Unless explicitly specified, if a real-life member leaves the group, the right of SM Entertainment to use the name and likeness of that member would probably end. This leads to a complex scenario where ownership of the virtual idol remains with the company, but the real-life member would want to retain control over their personality rights.
The debut of aespa reveals SM Entertainment's long-term vision for virtual avatars and idols - creating 'avatar idols', customised avatars created by AI technology and based on idols for fans to own and interact with. If the development of virtual idols heads down this path, current IP laws would find struggle to handle the complexity of ownership and without very clear understanding between all parties, IP disputes will inevitably arise. As of now, however, companies looking to enter the virtual idol industry must think carefully to avoid the pitfalls that may come with developing virtual idols based on real people.
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