From July 2017 to April 2018, the Art Gallery of Ontario (the “AGO”) staged an exhibition titled “ReBlink,” which urged visitors to “[t]ake a second look… with a modern lens:”

A collaboration between the AGO and Toronto-based digital artist Alex Mayhew, ReBlink sought to exploit cutting-edge technology to provide AGO visitors an opportunity to experience its Canadian and European Collections in an entirely new way. The technology in question was a custom mobile app which enabled visitors to use their device’s camera to “unlock Mayhew’s modern twists on historical works of art [and] see something unexpected – the painting’s subjects coming alive, reflecting a vision of our daily reality in the 21st century.”

The museum industry, it would seem, is taking note of technology’s growing role in its operations, particularly in regards to visitor engagement and staying relevant in a social media-driven society where declining visitation rates have only been exacerbated by the ongoing pandemic. The resulting loss in revenue has had dire consequences on museums’ purse strings and ability to maintain quality in their programming. So perhaps it has never been timelier that museums further explore and embrace the use of augmented and virtual reality (“AR” and “VR”).

AR involves overlaying the user’s view of (actual) reality with digital information and/or data – think Instagram filters; VR allows the user to experience and interact with a simulation projected on a head-mounted display as if it were their reality. There are clear advantages to the use of these technologies in the museum context. For instance, AR could be designed to allow a visitor to access additional information about a particular piece of work, while VR could enable individuals who are unable to physically visit a museum to peruse its collections from the comfort of their own homes, at their own pace.

Notwithstanding the potential benefits conferred on museums by AR and VR, there are various legal issues that first need to be addressed before these technologies can be widely implemented.

Perhaps one of the most salient legal issues is whether there is copyright infringement or a violation of the Visual Artists Rights Act of 1990 (“VARA”) in the virtual modification (e.g., addition of written or pictorial elements) of a work not in the public domain and/or where the creator is still alive. For the most part, liability may be avoidable: museums could defend any copyright (e.g., infringement of the creator’s exclusive right to reproduce and/or prepare a derivative work) or VARA/moral rights (i.e., prevent intentional modification of their work and attribution to the modified work) claims by claiming fair use under § 107 of the Copyright Act of 1976, which permits fair use of a protected work for purposes such as criticism, comment, teaching, scholarship, or research. That said, for risk-averse museums who may (understandably) wish not to serve as a litigation guinea pig, obtaining authorization from the appropriate rights owners through licenses and contracts may be the preferred approach.

Then, as is typically the case where technology is involved, there is the issue of intentional and/or inadvertent collection of data from visitors engaging with AR or VR elements implemented by museums. For instance, in the AR example above of AGO’s ReBlink exhibition, visitors “use[d] their [mobile] device’s camera to unlock Mayhew’s modern twists on historical works of art.” Effectively, this meant that the app, while open, could capture video of everything the user was viewing via the device’s camera. Such an app could be programmed with the capability to surreptitiously collect information stored on the user’s device. Thus, in using the device to enhance their museum experience, visitors may inadvertently be exposing their private information for collection by third parties, and museums could unwittingly find themselves at the wrong end of a privacy lawsuit.

The legal concerns aside, the use of AR and VR in museums arguably benefits the public. In addition to encouraging greater knowledge and accessibility noted above, these technologies provide an opportunity to elevate visitor experience in other ways. For example, in March 2018, AR was used at Boston’s Isabella Stewart Gardner Museum to “restore/return” thirteen paintings that had been stolen in 1990 to their frames. Although the museum was not directly involved, it did state that “the concept of using AR to see something that you can’t actually see while you are visiting the museum . . . is something [they] have been discussing[,]” suggesting that the pervasion and ubiquity of AR and/or VR in the museum space may not actually be all that far from reality.

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