Snapchat ART: Futuristic Public Art Exhibition, or Corporate Takeover of Public Land? - Fordham Intellectual Property, Media & Entertainment Law Journal
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Snapchat ART: Futuristic Public Art Exhibition, or Corporate Takeover of Public Land?

Snapchat ART: Futuristic Public Art Exhibition, or Corporate Takeover of Public Land?

Companies that produce AR and VR technologies are becoming popular investments, with AR/VR startups receiving $2 billion in investments in the 12 months prior to July of 2016.1 In fact, investments into these technologies seem to be growing, with $800 million invested in AR/VR technologies in the second quarter of 2017 alone.2

These technologies, while related, have distinct differences. Virtual reality (“VR”) “blocks out the real world and immerses the user in a digital experience.3 With a lightweight and portable mask, your smartphone can take you around the world and into another dimension.4 In contrast, augmented reality (“AR”) is less immersive, adding “digital elements on top of the real world” and altering the landscape for the user.5 Between VR and AR, it has been argued by some (including Apple’s CEO Tim Cook) that AR is more suited to wider audiences.6

Many smartphone users have been using AR without even realizing it. For instance, people are using AR when they send each other videos of themselves with dog ears and tongues, and when their bitmoji is dancing on their desk. Perhaps the most notable AR phenomenon in recent memory was Pokémon Go.7 Pokémon Go was so popular that it had garnered “roughly 500 million downloads, existing on over 10% of mobile devices in the U.S.”8 At its peak, Pokémon Go led hundreds of users, phones out and playing the game, to congregate in specific areas all over the world.9

While Pokémon Go might have helped AR go “mainstream,” Snapchat’s impact on popularizing AR with the public is considered to be more pervasive.10 Snapchat use has been, and is expected to continue to be, a main platform for AR use.11 Acquisitions in the space by Snapchat’s parent company, Snap, demonstrate that “the company has bigger ambitions for augmented reality.”12 In fact, such purchases are crucial to Snapchat’s popular AR features, including the (aforementioned) dog face filter13 and dancing bitmoji.14

Earlier this month, Snapchat collaborated with sculptor Jeff Koons 15 to create a new feature, aided by Snap’s 2016 purchase of Israeli startup Cimagine,16 that could rival user engagement with Pokémon Go. Snapchat ART allows users with the most updated version of Snapchat to utilize a special location-based Lens.17 To view an AR version of a Koons sculpture, users must be within approximately 300 meters of a major landmark or park in selected cities across the world,18 such as New York City’s Central Park or London’s Hyde Park. As of October 16th, 2017, other locations include: Champs de Mers in Paris, Roundhouse Park in Toronto, Regent’s Park in London, the Sydney Opera House, Millennium Park in Chicago, Copacabana Beach in Rio de Janeiro, the National Mall in Washington, D.C., and the Venice Boardwalk in Venice, California.19 To expand the project’s footprint, Snapchat plans to eventually unveil new locations,20 and “will allow artists to submit their art to be added to Snap’s platform.”21

The tenacity with which people participated in Pokémon Go raised many legal issues and concerns. According to commentators, potential legal claims from using AR games include – but are not limited to – trespassing onto private property negligence or contributory negligence claims from distracted players injuring people in the area, intellectual property (“IP”) infringement “resulting from photos, names, landmarks and other protected items that may appear in the game,” and “[m]isappropriation of rights of publicity or name/likeness (e.g., individuals that are captured on film).”22 Ultimately, however, it is unlikely that Snapchat or Snapchat ART users would face these potential risks. The installations are contained in specific areas that are well-known and regulated, essentially eliminating the possibility of wandering users trespassing onto private property. Artists submitting their work to Snapchat agree to certain concessions regarding their IP, by agreeing to Snap’s Privacy Policy23 and Terms of Service.24 Because Snapchat ART has limited its locales to major landmarks and parks, it is likely that Snap has secured or vetted whether there are concerns with impeding on someone else’s IP. It seems that negligence or contributory negligence concerns stemming from injuries caused by distracted Snapchat ART users would not be markedly different than if a distracted smartphone user were using a different application.

However, soon after Snapchat ART was unveiled, artist Sebastian Errazuriz raised concerns via an Instagram post25 that features an image, from Snapchat ART, of Koons’s “Balloon Dog” in Central Park digitally “tagged” with graffiti, and followed up the next day with a video26 where he provided background and further described his concerns. Errazuriz asks whether “corporations [should] be allowed to place what ever [sic] content they choose over our digital public space,” and posits that the people “should choose to approve what can be geo-tagged to our digital public and private space.”27 Snap’s use of AR technology concerns Errazuriz, because he feels that, as a society, “we are moving very quickly toward an augmented reality life, where our daily commute will be filled with . . . entertainment, information, [and] advertisements that will populate our lives as if they are actually there.”28 To curb this growing concern with AR, Errazuriz believes that granting corporations “the freedom to G.P.S. tag whatever they want is an enormous luxury that we should not be giving out for free,” and because “[t]he virtual public space belongs to us; we should charge them rent.”29

The concerns raised by Errazuriz align with concerns that others have risen as AR technology becomes more ubiquitous, but from a branding perspective. For instance, there exists an application that allows users to use their smartphones to view or add images in the “sky,” and that brands are concerned about “ambush marketing campaigns” from rival companies during sponsored events.30 The parallel concerns expressed by Errazuriz and Matt Reynolds of the New Scientist demonstrate the vast potential for AR technologies, with the former worried about brands interfering with public spaces, while the latter fears what brands could do to each other.

There is at least one example of a municipality seeking to regulate how its public lands are used with AR games.31 Following the fervor surrounding Pokémon Go, Milwaukee put out an ordinance “requiring virtual and location-based augmented reality games to apply for permits in Milwaukee County Parks.”32 In April, Candy Lab, Inc. (“Candy Lab”) sued the city of Milwaukee, claiming that the ordinance violated the company’s First Amendment rights.33 This July, Judge J.P. Stadtmueller of the District Court of the Eastern District of Wisconsin struck down the ordinance, finding that it likely violated Candy Lab’s First Amendment rights.34 Judge Stadtmueller found that even when faced with “ever advancing technology, ‘the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary’ when a new and different medium for communication appears.”35 Later, Judge Stadtmueller questioned the vagueness of the ordinance’s requirements, and noted that the city could accomplish its goals of maintaining order in its parks, without “stifling . . . expression” by possibly “aggressively penalizing gamers who violate park rules or limiting gamers to certain areas of the park[.]”36 While Snapchat ART is not characterized as a game, July’s decision could indicate how courts might consider the rights of those intending to implement AR technology in public places.

Views on something like Snapchat ART exist on a wide spectrum. On one end, the project could be seen as an invasive corporate advertisement on public land. On the other, the project is a new-age public art installation. In New York City, for instance, where corporate ads in public spaces have been considered cynical annoyances and inconveniences,37 the city has charged thousands of dollars for the ability to advertise in the public space.38 New York City also has art installations in public places for residents and visitors to enjoy.39 For municipalities searching for solutions, New York City’s treatment of its public space for these uses might be a model worth examining.

Should a city have a right to their “virtual air” rights, as Errazuriz suggests? Will cities and municipalities monitor their “virtual” air rights, as to avoid people being inundated with advertisements and messages, or to avoid excessive and disruptive crowds in public places? Is Snapchat ART really an invasion, when users have to take the affirmative steps of being in a location, on Snapchat, and using a specific Snapchat feature? Is this a sign that unwanted AR technology could be creeping into our daily lives, or is Snapchat ART simply a fun feature that allows Snapchat users to experience art in a new way?

  1. Record $2 billion AR/VR investment in last 12 months, Digi-Capital (July, 2016), [].

  2. Robert Williams, Investment in AR, VR hit $800M last quarter, Brief (July 6, 2017), [].

  3. Sarah Downey, The Gigantic List of Augmented Reality Use Cases, Upload VR, [] (last updated Oct. 26, 2016).

  4. See Daydream View, [] (last visited Oct. 16, 2017).

  5. Dawney, supra note 3.

  6. See James Towers, AR vs VR – Why augmented reality is winning the race, Ad News (July 13, 2016) []; See also Mikey Campbell, Apple CEO Tim Cook again touts benefits of AR over VR, says ‘no substitute for human contact, appleinsider (Oct. 13, 2016, 7:12 PM), [].

  7. See How “Pokemon Go” Took Augmented Reality Mainstream, Knowledge@Wharton (July 21, 2016), [].

  8. Charlie Fink, How Snapchat Became The Leader In AR Without Really Trying, Forbes: #AllThingsMobile (Mar. 15, 2017, 4:01 PM), [].

  9. See, e.g., Katie Mansfield, Watch: Hundreds of people swarm Central Park to catch rare Pokemon in jaw-dropping scenes, Express (July 16, 2016, 10:54 PM), [].

  10. Fink, supra note 8 (noting that “[i]f Pokémon Go might is the tip of the spear, Snapchat is the AR missile — more advanced and farther-reaching.”).

  11. See Douglas Clark, Snapchat, Facebook Fuel AR Growth, eMarketer, (May 22, 2017), [] (containing testimony from a forecasting analyst stating that “[u]sers of Snapchat Lenses comprise the vast majority of our AR estimates[.]”).

  12. Annie Palmer, Snap Isn’t Just a Camera Company, It’s an Augmented Reality Company, TheStreet (Feb. 3, 2017, 2:07 PM), [].

  13. See Jess Fong & Dion Lee, Snapchat filters: the engineering behind augmented reality selfies, Vox (June 28, 2016), [] (detailing how this “feature came from a Ukrainian startup called Looksery, which Snapchat acquired for $150 million).

  14. See Kurt Wagner, Snapchat’s new augmented reality feature brings your cartoon Bitmoji into the real world, recode (Sept. 14, 2017, 9:00 AM), [] (indicating that Snapchat had purchased Bitmoji 18 months prior to this article’s publication).

  15. Jeff Koons x Snapchat, [] (last visited Oct. 16, 2017); See also, e.g, Todd Spangler, Snapchat’s Latest Plaything: Jeff Koons Location-Based Art Lenses, VARIETY (Oct. 3, 2017, 12:05 PM), [].

  16. Josh Constine, Snapchat to launch augmented reality art platform tomorrow, TechCrunch (Oct. 2, 2017), [].

  17. See Snapchat Support, [] (last viewed Oct. 16, 2017) (explaining that Lenses allow users “make Snaps even more fun by adding real-time special effects and sounds).

  18. Spangler, supra note 15 (“According to Snap, users must be within about 300 meters of the Lens and have the latest version of the Snapchat app installed. If nearby, the Koons lenses will appear in the first slot in the carousel.”).

  19. Jeff Koons x Snapchat, supra note 15.

  20. Spangler, supra note 15 (“[T]he art exhibits will show up for Snapchat users . . . in the U.S., Canada, the U.K., Paris, Australia and Brazil, with more locations worldwide to follow[.]”).

  21. Spangler, supra note 15; see also Jeff Koons x Snapchat, supra note 15.

  22. Novika Ishar, The Legal Challenges of Augmented Reality – Part 1: The Basics, Focus on the Data (Jan. 25, 2017), [].

  23. Privacy Policy, [] (last modified Sept. 26, 2017). As a side note, a look into these types of agreements could likely be worthy of their own Blog posts in the future.

  24. Snap Inc. Terms of Service, [] (last modified Sept. 26, 2017).

  25. Sebastian Errazuriz (@sebastianstudio), Instagram (Oct. 5, 2017), [].

  26. Sebastian Errazuriz (@sebastianstudio), Instagram (Oct. 6, 2017), [].

  27. Errazuriz, supra note 25.

  28. Id.

  29. Id.

  30. Matt Reynolds, Augmented reality graffiti will lead to advertising ambush wars, New Scientist (Aug. 4, 2017), [].

  31. Matt Wild, Milwaukee is still talking about Pokemon Go, and still trying to make it (and other gamers) pay up, Milwaukee Record (Jan. 24, 2017), [].

  32. Id.

  33. See, e.g., Eriq Gardner, Milwaukee, Wisconsin, Sued for Requiring Permits on Augmented Reality Games, The Hollywood Reporter: THR, Esq. (Apr. 21, 2017, 11:39 AM), [].

  34. Candy Lab Inc v. Milwaukee Cty., No. 17-CV-569-JPS, 2017 U.S. Dist. LEXIS 113122.

  35. Id. at *14 (quoting Brown v. Entm’t Merchs. Ass’n, 564 U.S. 789 (2011)).

  36. Id. at *30.

  37. Rosa Goldensohn, Corporate Ads Take Up Too Much Space in Public Plazas, Residents Say, DNAinfo: Murray Hill, Gramercy & Midtown East (Jan. 21, 2015, 2:02 PM), [].

  38. Id. For a working webpage indicating fees to hold events in New York City’s public spaces, see also Plaza Fees, [] (last visited Oct. 16, 2017).

  39. See, e.g., Art in the Parks, [] (last visited Oct. 16, 2017) (listing all the art exhibitions in New York City’s public parks).

Benjamin Halperin

Ben Halperin is a second-year law student at Fordham University School of Law, and a staff member of the Fordham Intellectual Property, Media, & Entertainment Law Journal.