3D printing is a relatively new art form is sweeping the internet and worrying designers and Hollywood executives alike. Along with the advent of 3D printing, a steady stream of piracy and copyright infringement cases have been reported by industry honchos. Whether you’re supportive of this new innovation or struggling to protect your own 3D designs, you may want to consider getting to know the legal considerations surrounding 3D printing.
What is 3D printing, and why is it a threat to big business and designers alike? 3D printing brings to life the digital designs of industrial designers. A savvy designer simply creates his product design, and printing in 3D makes the physical product readily available. While there many high-end, ultra-sophisticated 3D printer models, the market is currently welcoming cheaper and nearly as efficient models to the fold.
The effects of 3D printing piracy have had reverberations across the creative industry. Big companies and industry leaders are concerned that 3D printing is taking away their market share for producing consumer products. For example, a recent Wall Street Journal article discussed how a 3D designer and printer created his own designs for products from the popular Star Wars film released last year. Within weeks, the designer had tons of requests to download his 3D designs. At first, he wasn’t even charging people for their use – which means that Hollywood lost big industry dollars since many savvy consumers knew they could be getting this stuff for free.
In another example, a designer was dismayed to find that her 3D designs – which were protected by a Creative Commons, non-attributable license – had been pirated for use by a products company. The designer was not contacted for permission or paid for the use of her work. Despite having her design registered via Creative Commons, she was faced with a situation in which the only way to recover her lost profits would be to file a lawsuit, something which she really didn’t have the time and resources to do.
3D printing is going to revolutionize the consumer products industry, with everyday products like toys and auto parts being sold by independent 3D printers. 3D printing production will make waves across the industry, lowering the price of most consumer goods sold in the market. But is 3D printing necessarily a good thing? In an industry that’s so unregulated, are designers safe from having their designs pirated and sold without compensation?
3D Printing: Copyright Law Hasn’t Quite Caught Up Yet
The 3D printing landscape involves copyright, IP, and trademark considerations, making it a big mess for legal practitioners to try and understand. Quite frankly, copyright regulations simply haven’t caught up to this new technology. Inherently, one of the first questions to ask when considering copyright considerations in 3D printing is, who owns the work? Since there are various players involved – the designer who creates the original model, the designer who plugs that design into a CAD program to prepare it for printing, and the person who operates the 3D printer. U.S. law provides that copyright protection exists in “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”
But is ownership so easily identifiable when it comes to 3D printing? Every person involved has had a hand in some critical essential aspect of the work, so it’s often hard to determine if any one participant in particular holds the undisputable copyright in the product. What’s likely to happen is that the law will register copyright to joint authors, meaning multiple people will hold copyright title to the work.
If you’re a designer or printer involved with a particular design, it’s important to copyright your work for your own protection. Reaching an agreement with the other parties involved should be relatively easy if you’re in on it together – but what happens when you upload your design to the internet, and a printer unknowingly downloads, prints, and start selling your work?
Often times, designers may upload their designs for distribution via non-commercial use, and websites that are specifically geared towards 3D printing designs – like Thingiverse and Shapeways – function similarly to YouTube or Facebook in the sense that they’re protected by the safe harbor of the Digital Millennium Copyright Act as long as they post rules that imply they will remove any content found to be infringing. Since DMCA doesn’t assign copyright liability to the website, but rather to the person guilty of posting infringing content, if a 3D designer detects that someone is using their designs in a commercial way, they have few recourses. They can issue a DMCA takedown notice, but as we know from this post that can only go so far. Otherwise, designers who find their work being used for unlicensed commercial purposes may have to take legal action to recoup their lost profits.
3D Printing Technology Could Affect a Variety of Artists
3D design and printing implicate more than just industrial design: any artists creating work in a tangible medium could be affected. That means sculptors, jewelry makers, and architects could all be affected by new 3D printing technologies since it is relatively easy to use software that will mimic and counterfeit your design. In turn, 3D printing can have serious repercussions on the art market because determining what’s fake and what’s real will be much more difficult. With such an array of materials available, counterfeiting will likely become widespread, and unfortunately, since 3D software is highly sophisticated, copyrighted designs will likely be stolen frequently. In fact, counterfeiting will be much easier since anyone with access to a 3D printer will be able to easily replicate a work.
Protecting your work from counterfeiting will likely be difficult, but ensuring your work product is copyrighted will be key to recovering should a misuse of your work be discovered.
Trademark Law Considerations for 3D Artists
We recently covered trademark law and the various classes available in order to protect and trademark your name or work. 3D printing will significantly impact trademark law because counterfeiting can be rampant.
Since trademark law is designed to protect a product or brand from being confused with another in the eye of the consumer, its likely that many courts will soon be deciding what to do with 3D printing. A trademark protects names, logos, and emblems, but it also protects characters, color schemes, and layouts. As we know, Barbie is a protected trademark – so if you 3D print a new Barbie, you may find yourself in trouble. However, since the trademark is really meant to protect consumers more than anyone else, copying a trademarked design and keeping it to yourself won’t really make a difference. But if you try and peddle it commercially, chances are you could find yourself found in violation of trademark infringement.
Similarly, a trademark can also protect trade dress. Trade dress is the overall commercial image (look and feel) of a product that indicates or identifies the source of the product and distinguishes it from those of others. It may include the design or shape/configuration of a product; product labeling and packaging; and even the décor or environment in which services are provided. For example, the distinctive décor of the Hard Rock Café is protected by trade dress, since it’s distinct enough to allow a consumer to easily identify with that particular brand. One way a 3D printer might be able to distinguish their product from a trademarked one, then, would be to stay away from identifying colors, symbols, or design elements that might have the ability to confuse the average consumer.
While you may not be violating trademark law by sticking to these guidelines, it’s important to remember that copyright laws remain very murky around this topic. So before making any sudden moves with your 3D printing capabilities – whether designing or printing, uploading files to share or creating products to sell – you may want to consult with an attorney first.
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