The art world is experiencing a digital revolution. Immersive technologies are reimagining the shapes that art can take and how the public can view the art. Museums offer augmented reality overlays that animate paintings. Virtual reality galleries let people experience exhibitions from the comfort of their couch. But as these technologies transform how art is displayed, consumed and sold, a critical problem emerges: legal frameworks designed for a world where artwork was isolated within the walls of museums and viewing was limited by the abilities of the human eye are lagging behind. In short, the current legal frameworks were not designed to engage with art that exists on multiple technology-enabled mediums and can be experienced simultaneously worldwide.
New Forms of Display
Augmented Reality (“AR”) refers to a display of a real-world environment whose elements are augmented by (i.e., overlaid with) one or more layers of text, data, symbols, images, or other graphical display elements.[1] Virtual Reality (“VR”) is using a kind of device (e.g., headsets or multi-projected environments) to create a simulated and immersive environment that can provide an experience either similar to or completely different from the real world[2].
Advancements in AR and VR technology have opened up a new realm of creativity for many artists. Artists are creating immersive experiences that can be viewed through a smartphone or a VR headset. World-class museums are launching VR galleries which allow anyone with a headset to experience their collections and exhibits from anywhere in the world, controlling lighting and perspective in ways impossible in physical museums. Recently, the Metropolitan Museum of Art (MET) launched a new immersive VR experience that allow viewers to explore the famed Temple of Dendur and a variety of works in the MET’s Oceanic art exhibit[3].
On the other hand, AR overlays have allowed users to use their smartphones to see historical figures from paintings come to life, engaging in modern-day activities and interacting with their surroundings.[4] For example, “Artivive”, a leading AR platform, allows users to bring any work of art to life using AR overlays integrated into a simple to use phone application.[5]
Undoubtedly AR and VR bring forth new levels to the enjoyment of art, and yet such enjoyment comes at a price in the form of inquisitive legal questions: When an AR application overlays content on works of art, who bears liability if the AR content infringes third-party rights? If someone creates an AR overlay animating a contemporary artist’s painting without permission, is that infringement? Does displaying a physical painting in a VR-tour require additional permissions beyond what’s needed for in-person exhibitions? If the VR-tour serves a different market (people who cannot visit physically), does that affect the analysis? Some have gone so far as to suggest that “one potential solution may be establishing a new category of copyright, tailored specifically for human-AI collaborative work”.[6] Although these questions may turn Mona Lisa’s mysterious smile into a not-so-excited frown, they are critical legal considerations that require our attention.
Digital Ownership and Copyright
Ownership complexities are highlighted in contexts involving collaborative artistic creation or the integration of pre-existing digital content samples.[7] Within the digital landscape, the issue that predominates is the development of derivative works.
Under U.S. Copyright Law, a work may be protected and thus “copyrighted” if it constitutes an “original works of authorship” and is “fixed” in a “tangible form of expression.” The law grants copyright owners the exclusive right to reproduce, distribute, publicly perform and display the works, and to profit from purchases and licensing of their work.[8] Copyright law defines derivative works as those works of authorship which are “based upon preexisting works.”
One important limitation on the exclusive right of copyright owners is the judicial doctrine of fair use. Under 17 U.S.C. § 107, “the fair use of a copyrighted work is not an infringement of copyright”. When performing fair use analysis, the four factors to be considered are: (1) the purpose and character of the use, (2) the nature of the copyright work; (3) the amount and substantiality of the portion used; and (4) the effect of the use upon the potential market for or value of the copyrighted work. Essentially, fair use allows the unlicensed use of copyrighted material in specific contexts where the societal value of secondary use arguably outweighs the copyright holder’s exclusive rights.[9]
As AR content often incorporates existing creative works, the risk of copyright claims and ownership disputes is heightened. [10] When users contribute to artistic AR experiences, copyright implications may arise. However, such uses may potentially be considered transformative under the fair use doctrine, though each case is assessed individually. Related cases provide limited guidance – the Supreme Court in Google LLC v. Oracle America, Inc., 141 S. Ct. 1183 (2021) held that Google’s copying of Java API code for Android was fair use—transformative, functional rather than purely creative, and serving a different market. But the Court emphasized Java’s “functional” nature: code designed to accomplish tasks, not for aesthetic appreciation. Most fine art is purely expressive. Whether courts will apply Google‘s software-focused reasoning to art remains uncertain.
Indeed, the absence of precedent creates uncertainty. Artists, platforms, and institutions operate without clear rules, relying on unresolved legal theories.
Licensing and Agreements
In its guidance, the U.S. Copyright Office, emphasized the importance of legal compliance for stakeholders and highlighted their responsibilities in securing permissions and obtaining licenses to respect the rights of original creators. [11]
In fact, AR vendors are taking into consideration the potential conflicts that may arise if users upload copyright-protected third party works of authorship to their platforms. For example, some platforms tackle such concepts in their online Terms & Conditions. An example of such vigilance is ensuring that the user confirms that he/she owns all the intellectual property rights for the content uploaded or has secured the owner’s written confirmation prior to the upload – while also reserving the right to terminate a user’s access and/or remove content if there is “reason to believe” that user’s actions are infringing of any third party’s intellectual property.”[12]
AR platforms must also remain wary about the possibility of secondary copyright infringement claims. After all, copyright holders may argue that AR platforms facilitate and induce users to create infringing augmented works of art. To avoid being on the wrong end of such claims, AR platforms must maintain robust terms and policies which prohibit the use of third party copyrighted materials and most importantly monitor the use of the platform and enforce their policies against any infringing uses.
The Path Forward
To be clear, AR platforms should not be viewed solely as an attack on creative minds, and as a constant threat of unchecked copyright infringement. AR platforms have also proven to be a lucrative opportunity for artists – allowing for new modes of expression and reaching wider audiences. In 2019, urban artist and illustrator Nychos worked to bring his mural of a T-Rex to life. This quickly resulted in a hit drawing over 300,000 views and 70,000 likes. Suddenly, this mural stood out in the sea of graffiti with people buzzing over to it with phones ready in hand to watch the T-Rex roar.[13]
In short, although AR platforms create an increased risk of misuse and infringement, there is also a motherload of potential and possibility that creators can utilize to their advantage as long as the law continues to offer the protection that creators rely on. As immersive technologies become central to how art is created and experienced, the gap between technology and legal clarity will only widen—unless courts, legislatures, or industry standards begin providing answers to questions that current frameworks weren’t designed to address.
FOOTNOTES
[1] Travis Alley, Pokemon Go: Emerging Liability Arising from Virtual Trespass for Augmented Reality Applications, 4 Tex. A&M J. Prop. L. 273 (2018)
[2] Virtual and Augmented Reality Laws, Internet Law. Blog (Dec. 17, 2018), https://www.internetlawyer-blog.com/virtual-and-augmented-reality-laws/.
[3] The Metropolitan Museum of Art Launches New Immersive Virtual Reality and Online Feature with Iconic Works from Its Collection; The Metropolitan Museum of Art Launches New Immersive Virtual Reality and Online Feature with Iconic Works from Its Collection – The Metropolitan Museum of Art
[4] The Intersection of Augmented Reality and Art: Legal Implications for Intellectual Property Protection; The Intersection of Augmented Reality and Art: Legal Implications for Intellectual Property Protection – Harvard International Law Journal
[5] Artivive – The Leading Augmented Reality Platform for Every Idea
[6] AI and the visual arts: The case for copyright protection, Judy Wang and Nicol Turner Lee (April, 2025) AI and the visual arts: The case for copyright protection | Brookings
[7] Art in the digital age, Editorial (July 2024) The Intersection of Law and Art in the Digital Age – Laws Learned
[8] AI and the visual arts: The case for copyright protection, Judy Wang and Nicol Turner Lee (April, 2025) AI and the visual arts: The case for copyright protection | Brookings
[9] From Parody to Digital Art: Rethinking the Boundaries of Fair Use, Zoie Geronimi (April 2025), From Parody to Digital Art: Rethinking the Boundaries of Fair Use | Black Pre-Law Society
[10] DMCA Enforcement for Augmented Reality and Mixed Reality, DMCA Authority DMCA Enforcement for Augmented Reality and Mixed Reality – DMCA Authority
[11] DMCA Enforcement for Augmented Reality and Mixed Reality, DMCA Authority DMCA Enforcement for Augmented Reality and Mixed Reality – DMCA Authority
[12] Artivive – The Leading Augmented Reality Platform for Every Idea
[13] Viral T-Rex Mural Coming to Life, (Artivive) Nychos – Nychos is a Los Angeles-based street artist from Austria known for his giant anatomical murals and detailed dissection art.