copyright

Congratulations to our client Sarah Moshman whose documentary Losing Sight of Shore recently made it to Netflix.  The documentary tells the story of the first all women team to row across the Pacific from the United States to Australia.

Thank you to recent graduates Maresa Martin and Nathalie Garcia who provided legal services along with New Media Rights Executive Director Art Neill.

Click through to read more about our work with this client.

Some companies have already expressed concern that 3D printing will allow consumers to repair so much of the product with at-home printed pieces, that the consumer is actually replacing the whole product for free. Unfortunately, the difference between making major repairs and reproducing the product is not clear-cut.

Patent: It is easy to imagine buying a product, scanning all its individual unpatented parts, and then using a 3D printer to print out any parts needed to repair a product at home. Not only would this be convenient for the consumer, but it would also prolong the life of the product.  Keep in mind though, that what is and what isn’t patented isn’t intuitive. Some parts that you might assume are not subject to patent protection may actually be patented.

However, many useful objects do have patent protection. Under patent law, the creator has the exclusive right to reproduce a product. However, the consumer is generally allowed to make repairs to their product but they are not allowed to recreate the patented object. The questions remains, “at what point does a single major repair or cumulative repairs equate to reproducing the product?” Unfortunately, the answer for the moment is unclear.

Copyright: If the product were copyrighted, reproducing it would be a copyright violation. However, making repairs to a copy you obtained lawfully is not. Let’s say a person purchased an art piece made of various colored sugar cubes that combined to create an image of a man’s face. Individually, the sugar cubes are not copyrighted. If a dog eats some, but not all of the sugar cubes, how many could be replaced before the owner has effectively reproduced the artist’s work without permission? The answer is unfortunately unclear.

Trademark: So long as consumers are never exposed to a reproduction of a trademark, a trademark can be copied. For example, if a person broke the lid on a standard thermos that has a Starbucks logo on it. They could replace the lid and the whole logo, so long as the lid is kept strictly for personal use.

If you have any other questions regarding 3D printing and the law please don’t hesitate to contact New Media Rights via our contact form.

Do rights exist in a CAD or STL file made using a computer program?

Copyright: Maybe. Copyright protects a work if it is an original creation that is fixed in some tangible form. Computer files are considered tangible under copyright law, so that’s one requirement checked off. But what counts as an original creation?

• Creating a file of a nail, and only the nail would may not create a copyrightable work because nails are useful, unoriginal, and not copyrightable.
• Designing an object in a CAD file that is entirely original (remember, it doesn’t necessarily have to be unique just original to you) would likely create a copyrightable work.
• Designing a file that contains an original object design, plus some separate unoriginal design, then only the parts of the file with the original design would be subject to copyright. However unlike a scanned file, a CAD file would likely be a derivative work, that is something based on a creative work that puts that creative work into a new format (for example a movie based on video game). The rest of the file would not be subject to copyright. For example, if someone designed a CAD file containing an artistic bust of themselves, plus a run-of-the-mill box for it to sit upon. They own the file to the extent it relates to the bust, but they do not own the part of the file that relates to the box design.

Patent: Simply creating a file of a patented object would not be an infringement of the underlying patent. However, sharing that file or using it print out the patented object would.  Keep in mind; this does not exclude the creator from having a copyright in the file.

Trademark: The only way a creator of a 3D-printable file will have rights in the file under trademark law is if the creator already has a trademark that happens to be included in the file. This does not exclude the creator from having a patent or copyright in the file.

For more information on the legalities of using trademarks in 3D printed works legally you can check out our “3D Printing trademark basics."

If you are including a trademark you don’t own and don’t have permission to use, and are going to share it with the public, you probably want to check with an attorney about whether or not your use of the trademark is permitted.  This is the type of issue New Media Rights may be able to assist with, so please use our contact form if you’d like to request assistance.

So if a CAD or STL file is protected by copyright law… what exactly does that mean?

Copyright law protects the creator’s right to copy, modify, distribute, publicly display, publicly perform, and create derivatives of the original work. Copyright infringement occurs when a person copies, modifies, distributes, publicly displays, publicly performs, or create derivatives of the original work without permission. Below we explain what each of these rights is and what infringement of those rights might look like in the 3D printing space. That said, there are some ways to legally reuse another’s copyrighted work , including using works in fair use, which you can read more about on our 3D printing copyright basics page.

Also as a general note, these descriptions only address files that are copyrightable. Files of useful objects, as explained above, are for the most part not subject to copyright so they will not be discussed in this section.

Copying: Making a copy of a 3D-printable file you don’t have the copyright to violates the creator’s copyright. However, copying useful elements of those same files would not violate copyright law.

Let’s use the standard bed frame with an artistic headboard example again. A person could copy the entire CAD file if given permission to do so by the copyright owner (i.e. the person who created the headboard). This would not violate copyright law. Please note that because of the way computers work, “cutting and pasting” is actually considered making a copy.

Distributing: Distribution of a copyrighted file occurs when it transmitting it to a third party (i.e. emailing a file to someone or sharing it via a thumb drive.) This type of digital distribution by its very nature also results in making a copy of the file.’ Thus sharing a copyright protected CAD file via a thumb drive with a friend, without permission from the files owner would be considered copyright infringement.

Modifying / Creating Derivatives: Making a modification to an original copyrighted file creates a derivative work. Thus modifying a copyrighted CAD file without permission would be considered copyright infringement in many cases.

However, not all modifications result in a derivative work. Copying and modifying the uncopyrightable useful elements from the original file would not create a derivative work. Let’s use the file of a standard bed frame with an artistic headboard again. You could copy the standard bed frame into your own file, but alter the dimensions to lengthen the bed frame to fit a taller person. This new file does rely on the original file, but it is not a derivative because the bed frame design is not copyrightable on its own.

Publicly Displaying: In theory, a CAD file could be publicly displayed. There is no set number of people that need to be exposed to the file for it to count as “public”; though it certainly needs to be displayed to more than one person and beyond a group of friends and family. For example, let’s say there was an art exhibit that consisted of nothing more than several big screens showing CAD files of creative designs with no additional commentary. This would be a public display of a CAD file. Without getting permission from the copyright holder of the files creator, this art exhibit would be considered copyright infringement.

If someone prints a 3D-printable file (assuming they didn’t create the CAD file), do they own any the rights in the printed object?

It depends. Simply printing a 3D-printable file adds nothing to the file or object, thus 3D printing an object won’t create any new rights under copyright, patent or trademark law.

That said there are some limitations on what a person can do with the object. A few helpful tips to remember:

• If the file wasn’t purchased outright and only a license to use the file was purchased (much like a song on iTunes) the terms of the contract will govern.
• If the file was under a creative commons or other open license. Then the terms of the creative commons license or other open license will govern. The key thing to watch out for here is if the file was licensed under a creative commons non-commercial license. If this is the case, selling items printed using the file is not allowed.
• If the item being printed is a functional object, like a spoon, without any creative elements the person printing the object would own the object. With the caveat that if the file infringed another person’s patent, you might own your copy but that copy would violate the patent owner’s patent.

If you have any other questions regarding 3D printing and the law please don’t hesitate to contact New Media Rights via our contact form.

If someone scans an existing object that they didn’t create, do they get a copyright in the file?

No, not from just scanning it.  Copyright protection is not granted for copies of creative works made by someone other than the original works copyright owner, even if those copies took time and skill to produce.  Copyright law only protects original creative works.   This is also true for 2D scanning in the real world. If a person scans a page of a book that doesn’t mean they own the copyright to that page of text.

The same is true for objects that have patented and trademarked elements. Scanning the patented or trademarked objects does not grant the person doing the scanning a patent or trademark rights in the file.

If the creator of an object scans the object they create, would they also own the copyright on the file?

Maybe. It really depends on whether the object they created contains protectable creative expression (protected) or simply functional and useful (not protected).

For objects that contain creative expression (sculptures, artistic engravings, action figures etc) the scan is a copy of the work. One of the rights granted to copyright holders is the exclusive right to copy the work. Although it’s unclear whether this scan would be separately copyrightable is an open question. On one hand scans of copyrighted works that incorporate pictures, written description or stories within the file may be separately copyrightable derivative works (that is a work based on another work). But that copyright would only cover the new additions to the work beyond the scan. However, if the file really is just a scan it’s unlikely to qualify as a derivative work because it really is only a copy of the work.

If a creator scans a useful object like a simple chair, then even if they created the chair they still wouldn’t have a copyright in the file because they are scanning and creating a copy of something that isn’t subject to copyright. In addition the file itself wouldn’t be subject to copyright because it is nothing more than a list of instructions for creating a useful object.

If the object is subject to a patent or trademark, merely scanning the object and creating a file will not create any additional ownership right beyond the pre-existing patent or trademark and copyright, if applicable.

When might scanning an object infringe another persons copyright, patent or trademark?

Copyright: If the entire object to be scanned is copyrighted, then scanning the object and creating a file without permission is a violation of the object creator’s copyright. For example, scanning a sculpture currently protected by copyright law and creating a CAD file based on that would violate the sculptor’s rights under copyright law, which allows them the exclusive right to make copies of their sculpture. Keep in mind that some sculptures may be in the public domain, especially sculptures created before 1923. This helpful table can also be used to help figure out if a sculpture is in the public domain.

If only some of the object to be scanned is copyrightable and the rest is useful, then scanning and creating a file based on the creative and non-useful part of the object without permission violates the object creator’s copyright. However, if you only scan the purely useful parts of the object and create a file based on you scan, there is no copyright infringement. For example, let’s assume the object is a standard bed frame with a headboard in the shape of a roaring lion.  Scanning the frame would not infringe the copyright owners copyright because the frame is useful and not subject to copyright law at all. However, scanning the decorative roaring lion part of the headboard would be copyright infringement because the roaring lion can be separated from the bed frame and stand alone as its own piece of art.

Patent: If the entire object to be scanned is patented simply scanning the object and making a CAD file without permission wouldn’t violate the patent. However, sharing that file or using it to print the patented object would.

If only some of the object is patented, again scanning the patented piece(s) would not by itself be considered patent infringement. However, sharing that file or using it to print the patented object would.

Keep in mind that there are “combination patents” which are made up of several unpatented pieces, but when put together create a patented combination. If you’re interested in scanning useful objects that may be patented, it might be a good idea to talk to a patent attorney.

Trademark: Because trademark law is intended to protect the public from confusion about product origin, trademark law simply doesn’t come into play when items are scanned for purely personal use. A further step – distribution to the public – is required for violation of the trademark. See “3D printing trademark basics.”

If you have any other questions regarding 3D printing and the law please don’t hesitate to contact New Media Rights via our contact form.
 

What is 3D printing?

Before we get too far into the law surrounding 3D printing, it’s helpful to know what 3D printing actually is. In many ways, a 3D printer is just like the printer you have at home: it uses a computer file as a blueprint; it uses ink; and it prints in layers to build up a final product. However, unlike your printer at home, it can print three-dimensional objects and use a wide variety of substances and materials for “ink.” What sets 3D printing apart from regular manufacturing is that 3D printing uses a layering process to create the object, as opposed to filing down a block of material.

Admittedly, this is a very cursory introduction to how 3D printing works. For some online sources explaining the mechanics of 3D printing, check out “How 3-D Printing Works” and “How 3D Printers Work”. If you’re in the San Diego area and are really interested in some hands-on time with a 3D printer, check out FABLAB San Diego for opportunities to learn about 3D printing by doing.

How are 3D-printable files created?

Before we talk about who owns a 3D-printable file, it’s helpful to know how exactly 3D printed files are created. Currently, there are two ways to create a 3D-printable file. One way is to use a 3D scanner, and scan an existing object to create a 3D-printable file, much like you would with a 2D scanner. Another way is to create a 3D-printable file on the computer, creating a Computer-Aided Design file (“CAD”). CAD files are 3D drawings typically used as a ‘blueprint’ by architects, engineers, and designers. Currently there are two popular formats for 3D-printable files: CAD and STL. CAD files are easily created, read, and edited by 3D drawing software. STL files have limited editing features, but can be easily read by the 3D printer.

Laws that relate to 3D Printing

There are three overarching types of intellectual property that relate to 3D printing: copyright, patent, and trademark.

Copyright law protects original creative expression such as sculptures, books, movies. But the bar for creative expression is pretty low, even things like a child’s drawing or the design of a website qualify for copyright protection.  Copyright protection is also automatic from the moment of creation; meaning just because something isn’t registered with the copyright office doesn’t mean it is not subject to copyright protection. A more detailed explanation of copyright law can be found near the end of the guide here.

Patent law protects leaps of invention such as new medicines, technologies and sometimes even software. Patent protection is not automatic and involves an expensive and time intensive registration process. A more detailed explanation patent law can be found near the end of the guide here.

Trademark law is a little bit different than copyright or patent law. Instead of protecting creativity or an idea, trademark law is designed to protect consumers. Trademark law provides the right to use a particular name, slogan, or logo in connection with goods or services, and is focused on ensuring consumers can identify the source of a good or service. A more detailed explanation Trademark law can be found near the end of the guide here.

If you have any other questions regarding 3D printing and the law please don’t hesitate to contact New Media Rights via our contact form.

This week Trans-Pacific Partnership (TPP) negotiators will be asked to endorse a binding obligation granting copyright protection for 70 years after the death of an author.  New Media Rights joins Knowledge Ecology International, 26 other groups, and countless individuals from all over the world to tell TPP negotiators that adopting this term would be a mistake. As stated in the letter:

There is no benefit to society of extending copyright beyond the 50 years mandated by the WTO. While some TPP countries, like the United States, Mexico, Peru, Chile, Singapore or Australia, already have life + 70 (or longer) copyright terms, there is growing recognition that such terms were a mistake, and should be shortened, or modified by requiring formalities for the extended periods.

 

The primary harm from the life + 70 copyright term is the loss of access to countless books, newspapers, pamphlets, photographs, films, sound recordings and other works that are “owned” but largely not commercialized, forgotten, and lost. The extended terms are also costly to consumers and performers, while benefiting persons and corporate owners that had nothing to do with the creation of the work.