From new ways to interact with evidence to different platforms for marketing, virtual reality (VR) and augmented reality (AR) technologies offer a range of possibilities for today's attorneys. But more immediately, they portend the prospect of more work around intellectual property issues.

Though the market for the technology is nascent, legal experts warn that AR and VR products will likely run into a host of IP and privacy issues, given their reliance on using and collecting user-generated data.

Like any interactive platform that allows for user-generated content, AR and VR products will need to closely monitor what is being posted in their virtual spaces. For instance, the use of avatars—graphic icons users choose as their representations on a platform—can open up AR or VR products to IP issues, should an avatar infringe on a protected copyright or trademark.

Kimberly Culp, counsel at Venable, noted that such potential infringement is already happening in the video game industry. “We certainly see in the video game context players who want to use images of companies they like, or games that they like, and the appropriation of those images is arguably a copyright infringement if one wanted to make that argument.”

It is unlikely that AR and VR companies will suffer much liability from user-generated content that infringes on IP, if they adhere to the Digital Millennium Copyright Act (DMCA) rules on policing and sending takedown notices for such content in the first place. But it may not be clear at times whether such content constitutes an infringement.

Christian Mammen, partner at Hogan Lovells, previously told Legaltech News that issues of fair use can become complex when considering content in the AR space.

As an example, he pointed to the “famous picture of Albert Einstein where you see his white hair sticking up in all different directions.” If this image were placed in an AR game, where it was painted on the live world, it is debatable whether this would be a transformative use and, therefore, a fair use of the picture.

Mammen noted that the “question then becomes, is it fair use for that AR game, or does the creator of that game need to obtain some type of rights from the owner of that photograph?”

For VR and AR products, the legal issues that arise with user-generated data don't end with the content its customers produce; they also extend to the data the products may collect from the users themselves.

“Biometric data is certainly one that gives me pause and gives others pause,” Culp said.

She noted that, while “biometrics themselves aren't really a new issue,” what is new is the “vast amount and different types of data AR and VR can and will collect.”

Some VR technology, Culp explained, “can track where you're looking at a particular piece of content and how you are engaging through eye-tracking with content and can provide data back to advertisers.”

The collection and management of such biometrics data can pose privacy and legal questions, especially in light of state statutes such as Illinois' Biometric Information Privacy Act (BIPA) and data privacy laws such as the EU's upcoming General Data Protection Regulation (GDPR).

In addition to collecting biometric data, there may be additional privacy and legal concerns over the “data that AR and VR technology takes in about a user's external surroundings,” Culp said.

Niantic's Pokémon Go AR game, for instance, came under scrutiny by former U.S. Senator Al Franken, D-Minn., over the platform's collection of user location data.

Niantic, which is the target of a class action lawsuit In re Pokemon Go Nuisance Litigation alleging unjust enrichment and common law nuisance over the AR game, responded that it has no plans to sell the data it collects and only provides certain aggregated data report to its sponsors.