An infringement case pending in a California federal court raises some interesting questions about how copyright law applies in the context of interactive art installations—an important topic in an art market that is increasingly exploring these innovative forms and mediums.
                        
The Allegations
 
The plaintiff in this case is teamLab, an art collective based in Japan.  For more than 15 years, teamLab has been creating large-scale digital artworks “in the form of interactive experiential displays”; its works have been displayed around the world.  The defendants are a California company that operates the Museum of Dream Space (MODS) in Los Angeles, as well as its parent company.
 
Plaintiff teamLab sued in August 2019 (Docket No. 19-cv-06906, C.D. Cal.), bringing claims for copyright infringement.  The complaint alleges that defendants knew of teamLab’s works and copied copyright-protected elements of those works to create two exhibits in the MODS location in Los Angeles (and later opened additional infringing exhibits at other locations).  The two teamLab exhibits that are the focus of the suit are “Boundaries” and “Crystal Universe.”  Boundaries uses digital animation in a 3D space “to create an immersive sculptural experience” with images, multiple projectors, and sensors “to supply images and music.”  Crystal Universe involves computer-modeled visuals rendered by installation of LED lights in a 3D space, using special hardware including LED lights and sensors; additionally, an application for smartphones allows viewers to interact with the work.
 
The MODS exhibits, teamLab alleges, are very similar, and MODS has even admitted on its Instagram page that it was “inspired by” teamLab.  The complaint also notes that MODS appears to have copied verbatim some of teamLab’s website text describing its artworks.  teamLab further alleges that some of the photographs it took of its own exhibits appeared on the MODS website, and asserts claims related to the copying of those materials.  teamLab seeks, among other things, injunctive relief that would require MODS to take down the allegedly infringing exhibits, photographs, and videos.  The complaint also alleges vicarious infringement related to work done by MODS’s third-party contractors, who helped create the exhibits, as well as consultants who help run MODS’s social media accounts.  And teamLab asserts a contributory infringement claim focusing on a Justin Bieber music video that was filmed in the MODS exhibits.
 
The Litigation
 
The parties pursued discovery, which turned out to be a lengthy process due to pandemic-related delays.  In March of this year, teamLab won a discovery skirmish over the defendants’ failure to turn over certain messages from the platforms Telegram and WeChat; in its ruling, the Court ordered that, as a sanction for the defendants’ discovery misstep, teamLab can discuss the conduct at trial, and the Court will instruct the jury at trial that jurors “may infer that the contents of the deleted messages were unfavorable to Defendants.”  
 
This spring, the parties submitted cross-motions for summary judgment.  If the case is not resolved on summary judgment and the parties do not reach a settlement, the parties are set to go to trial before a jury in August of 2022.  But in the meantime, the motions raise a number of thorny copyright issues that are relevant to parties in the art market, especially those interested in immersive and interactive artworks.
 
Copyrightability Questions
 
One major issue in the summary judgment motions is whether and to what extent TeamLab’s original exhibits are copyrightable at all.   
 
As an initial matter, MODS argues that teamLab has not established a clear record of what exactly each work is, particularly given that there are many elements of the works that vary, and that teamLab has only produced partial fragments of the works.  Without adequate specificity, MODS says, the court cannot effectively compare the works to the alleged infringing works.  teamLab counters that it has provided enough for the court to be able to compare the parts that have been copied, and the fact that there have been variations on their exhibits (changes that were largely dictated by the necessities of the physical venues) does not foreclose copyrightability, any more than a musician jeopardizes copyright by recording several variations of a song.
 
MODS also argues that teamLab’s works consist largely of unprotectable general concepts and methods (such as arrangements of lights, generalized use of blinking patterns, the colors blue and purple, and use of mirrors to express infinity).  Without more specificity, they urge, these are just ideas that cannot be copyrighted (see here for one of our previous blog posts exploring copyright’s “idea-expression dichotomy”).  teamLab, in response, notes that there are countless ways that an artist could use teamLab’s chosen medium and materials, and countless ways to express the concepts explored in the exhibits; but it is the specific expression teamLab chose that is protected by copyright.   
 
The questions are additionally complicated by the fact that the exhibits are interactive, and their appearances can vary based on viewers’ actions.  MODS argues that the exhibits therefore are not “fixed,” a requirement of copyright law, but rather they vary “in indefinite and unpredictable ways” with displays determined by the movements and choices of viewers in the installation.  teamLab, for its part, argues that the exhibits are dictated by fixed software, and the interactive sequences that viewers can trigger in these exhibits are repeatable, predictable, and governed by computer programming, so the limited interactivity should not impact the copyrightability.  They use an analogy to video games, which have been protected under copyright although their appearance can vary to some extent depending on choices made by players. 
 
Substantial Similarity Dispute
 
Assuming the works are found to be copyrightable, the court will also have to grapple with the question of “substantial similarity.”  In other words, how similar does a MODS work have to be in order to infringe on the original work by teamLab?  Courts have devised two different tests for substantial similarity.  The first, the “extrinsic test,” asks whether there is objective similarity in the specific protectable elements under a point-by-point analysis.  The “intrinsic test” asks whether there is similarity in the “total look and feel” of the works when viewed by an ordinary observer.
 
In terms of the extrinsic test, MODS argues that any similarities are between unprotectable elements, while teamLab urges that the defendants’ exhibits explore same themes as teamLab’s, using the same materials and technology, and express these themes in highly similar ways.  From the perspective of the intrinsic test, teamLab urges that even if any individual element is not protectable, the unique selection, arrangement, and coordination of elements are protectable, rendering the works substantially similar in total concept and feel.  teamLab further notes evidence that laypersons and observers thought that MODS was copying teamLab, as well as the fact that MODS tried to pass off teamLab’s exhibits as their own in marketing materials. 
 
Damages Questions
 
MODS argues on summary judgment that the damages sought by teamLab are speculative.  But teamLab urges that it has provided sufficient information for the court to send the question of damages to a jury.  For example, teamLab has provided evidence about the licensing fees it generally receives, in support of its argument that it should be able to recover lost license fees or royalties that it would have received if MODS had sought authorized licensed use of the teamLab works.  teamLab also argues that, alternatively, it can seek damages based on MODS’s profits, by presenting evidence about MODS’s overall revenue, and leaving it to the defendants to prove their “deductible expenses and the elements of profit attributable to factors other than the copyrighted work” under 17 U.S.C. § 504.
 
Finally, MODS seeks to get its parent company dismissed from the lawsuit, but teamLabs argues that at least one executive was serving in key roles in both entities, and that teamLabs was prevented from obtaining more information due to the defendants’ discovery misconduct.  
 
Analysis
 
Today’s art world has moved far beyond two-dimensional works and traditional sculpture.  Immersive art experiences (from the Museum of Ice Cream to installation-based shows, to interactive environments like those created by the Meow Wolf collective, to the multiple recent exhibitions featuring Van Gogh’s artwork, see here and here), as well as digital art, and even virtual reality spaces—all of these are increasingly important ways in which viewers experience art.
 
The teamLabs litigation examines just some of the complex questions that courts will need to address as parties struggle to apply copyright law to these innovative forms and mediums.  The concepts in the parties’ briefs are not new—there are reams of case law on topics like the idea-expression dichotomy, originality, fixation, and substantial similarity.  But copyright law is also constantly tasked with evolving to take into account emerging technologies and trends.  The Central District of California’s rulings on the teamLab summary judgment questions will represent just one district court judge’s view, but they will likely serve as important guidance to other litigants and courts as disputes over these types of art continue to crop up.