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3D Printing Companies Petition the Supreme Court for Copyright Clarity

by • March 7, 2016 • No Comments

Many folks believe 3D printing can disrupt IP law as it becomes mainstream. Now, three companies are petitioning the top court in the U.S. to turn it into a new test to delineate what types of objects can be copyrighted. The three companies, Shapeways, Formlabs, and Matter and Form, submitted a “friend of the court” brief to the U.S. Supreme Court in association with a clothing case, where the Court may address the question of what it copyrightable.

Generally, 3D printed objects that are ornamental and nonfunctional are copyrightable. For example, a 3D printed sculpture. But, 3D printed objects that are purely functional are not copyrightable. For example, a wrench or a fuel nozzle. In cases where the object is both ornamental and functional, the line is not clear.

Under the U.S. Copyright Act, to be copyrightable an object’s create must incorporate “pictorial, graphic, or sculptural showcases that can be synonymous separately of, and are capable of existing independently of, the utilitarian aspects of the article.” Different courts have applied this test in various ways. Applying this test, it is complex for courts to determine whether things like belt buckles, door knobs, or mannequins are copyrightable.

As a outcome of not knowing with certainty what is copyrightable and what is not, undesirable things may take place. As Shapeways points out in its brief, companies trying to assert copyrights may sue to preserve objects that may not be copyrightable. As a outcome, manufacturers and companies may be less most likely to print objects for fear of liability. This is commonly referred to as a thrilling effect. Demanding that internet service providers take down nonornamental 3D printable creates may in addition outcome in removing digital blueprints that are not copyrightable. In any case, the lack of clarity in the law may potentially inhibit technology, and Shapeways, Formlabs, and Matter and Form are asking the top court in the land to do a thing of it.

Today, the U.S. Circuit Courts of Appeals, that are one step at a lower place the Supreme Court, have applied an awe-inspiring ten various tests to determine whether an article is functional or not. In 1980, the Second Circuit (that comes with New York) discovered that belt buckles were akin to jewelry, and that their create was ornamentation and separate of keeping “trousers at waist level.” In 2004, the Seventh Circuit (that comes with Chicago) discovered that mannequin heads were not functional for the reason the createer’s judgment was not affected by functional concerns. In 2005, the Fifth Circuit (that comes with Texas) discovered that casino uniforms’ ornamentation was not conceptually separate of their functionality for the reason the uniforms were not marketable separate of their utility.

Tests like these have been applied to objects which include shoes, furniture, flying saucers, and adult toys. Other examples include decorative bicycle racks, that were discovered to be useful and not copyrightable; toy airplanes, that were discovered to be ornamental for the reason they were miniature real airplanes, and thus copyrightable; ornate lighting fixtures, that were discovered to be useful and not copyrightable; and lamp bases, that have been discovered to be ornamental and copyrightable.

As you can see, there is no clear line as to whether an object that has a few function may be copyrightable. Shapeways points out that while the Sixth Circuit (that comes with Michigan and Ohio) has discovered that portions of cheerleader outfits (such as tassels) can be copyrighted, the Second Circuit held that decorative portions of prom dresses are “intrinsic” to the overall functionality of the dress. What a mess.

Since 3D printed creates may be sold all over the country, Shapeways argues that this ambiguity in copyright law “can chill technology and creativity, increase litigation over copyrightability [as 3D printing increases], and disrupt the nationwide marketplace for mixed-use objects, and impose these inefficiencies on consumers.” Shapeways is most likely right. Just as increased patent litigation may cost consumers in the end, increased copyright lawsuits may end up costing consumers in the long run.

We can be watching closely to see if the Supreme Court decides to manufacture a bright-line test to determine whether an object is copyrightable when it possesses a few functionality. Until and so, remain tuned!

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