In addition to strength of copyright protection, discussed in a previous post, another concern for owners of copyrights in virtual reality products may be derivative works, which are creations based on preexisting works. Virtual reality environments could be derived from other works, and creations by participants in virtual reality simulations could arguably be derivative works. If a derivative work is unauthorized, it could be grounds for a copyright infringement suit.
The right to prepare derivative works is one of the exclusive rights given to authors via copyright law. Examples of derivative works include a film created from a novel, fan-made art or merchandise for a franchise, or a TV show made from a video game. In these examples, the characters, plots, and worlds in the original works are incorporated in new works.
If a virtual reality product is derived from a preexisting work protected by copyright law, the author of the virtual reality work needs either permission from the original work’s rights holder (which usually entails securing a license), or a strong fair use defense. Otherwise, the original work’s rights holder might successfully sue for copyright infringement.
For example, a virtual reality environment could be based on photographs of a specific place. Photographs are copyrightable, but their protection is based on expressive choices such as lighting, coloring, positioning of objects or people, and so on. This means a virtual reality setting could arguably be a derivative work if it is an adaptation of photographs with expressive, copyright-protected elements. However, it could be difficult to prove that the author of the virtual reality work relied on the expressive photographs in question rather than on other non-expressive photographs of the same place.
In contrast, if a virtual reality environment is based on a fictional world captured in artworks, motion pictures, or other media, the rights holders for the original works would have stronger arguments than rights holders for photographs, which are relatively less creative. The rights holders in the original works would need to point to identifiable, expressive elements of their own works that appear in the virtual simulations. These could include unusual buildings, plants, patterns, color schemes, characters, choreography, and modes of transportation, to name a few. A combination of many unusual elements from the original works would strengthen the case for infringement.
Another issue involves the users of virtual reality products. Some video games allow users to author their own creations, which could arguably be copyrightable. If a user creates an expressive building or work of art within the video game, can the user claim the copyright in his or her individual creation? Would it matter more if the user were able to market and profit from the work? Is the user’s creation even in a fixed medium (a prerequisite for copyright ownership)? Did the user sign away all rights to his or her creations within the game? And since the user’s creation may incorporate many elements of the virtual reality game, is that creation an unauthorized derivative work? These questions depend on the technologies and policies of the individual games, and game creators should certainly consider them if copyright protection is a priority.