3-Dimensional to 3-Disruptive

By Dana Mullen *

The Penrose triangleMost people can grasp the concept that scanning a copyright protected drawing to make copies is a clear violation of copyright law.  Consider, on the other hand, a scenario made possible by the technology of 3D printing, an additive process which deposits material layer by layer until a three dimensional model is formed.  The Penrose triangle originated as a two dimensional drawing, creating the illusion of a three dimensional object.  However, it is an impossible object from which no true three dimensional replica can be formed.

Nonetheless, Netherlands-based designer Ulrich Schwanitz recently was successful in printing a three dimensional model of the illusion.  Schwanitz did not share his design secret but, rather, offered the “impossible triangle” for sale through the fabrication company Shapeways for $70 each.  Within weeks, 3D modeler Arture Tchoukanov had recreated the shape and uploaded instructions to the website Thingiverse.  Schwanitz demanded that the instructions infringed on his copyright and should be taken down.  But what exactly could Schwanitz assert copyright in: the design file, the image, or even the printed structure?  Could artists who used the triangle in previous pieces have a claim against Schwanitz?  The answers may depend on how U.S. copyright law defines limitations on exclusive rights and the applicability of the fair use doctrine, which includes factors such as the purpose and character of use, the nature of the copyrighted work, the effect of use upon market value, etc.

Similar issues will become more prevalent as the use of 3D printing becomes cheaper and readily available to the average consumer.  Developments in technology indicate that this is already happening and is likely to continue at a rapid pace.  In fact, consumers can already scan and 3D print many small objects.  On the scanning side, NextEngine offers a 3D scanner for $2,995, capable of fully automated 360-degree surface scans of objects up to 5.1” x 3.8”.

For those not willing to spend large sums of money, there are other, much simpler options.  Even the iPhone offers a 3D scanning app, Trimensional, for only $0.99.  Additionally, websites such as www.My3DScanner.com allow users to take digital photographs shot at different angles and output them into 3D computer files.  Three dimensional models can be created from these files using 3D printers like that of Makerbot, whose home printer starts around $1,300.  For those reluctant to purchase a printer, files can be uploaded to print services websites where the price is determined by material and size.

The intellectual property concerns related to 3D printing will not be limited to copyright law.  Consider, for example, the real-world function given much publicity by Jay Leno.  As an avid car collector, Leno faces the problem of finding rare parts for older models.  Through the use of a NextEngine 3D scanner and Dimension 3D printer, however, he can easily scan and print a copy of the part.  This copy can then be sent out to create a mold and form the part from the material originally used in the car.

Laptop with replica gargoylesAs a general rule, copyright protection does not extend to objects considered “useful.” The ability to easily print useful objects, such as car parts, at home will likely create a stir in the area of patent law as well.  U.S. patent law treats any copy of a patented invention as infringement.  Moreover, the frequency of infringement issues may increase drastically as consumers find it easier to recreate broken pieces of small appliances at home, or cheaper to buy one candlestick and copy it to make a complete set.  Unfortunately for patent holders, copies made inside the home for personal use will be hard to track.  One possible legal remedy may be contributory infringement, where a third party contributes significantly to the infringement.  Used in the past by copyright holders to sue file sharing sites, contributory infringement may be relevant on the grounds that 3D printers are required to make copies of the patented items.  It is clear that 3D printing has already raised questions surrounding intellectual property rights and will continue to be disruptive to the legal world.  Exactly how disruptive, only time will tell.

* Dana Mullen is a second-year law student at Wake Forest University and holds a Bachelor of Science in Packaging Science from Clemson University.  Prior to entering law school, she was a Packaging Engineer at MeadWestvaco’s Center for Packaging Innovation in Raleigh, North Carolina.  Upon graduation in May 2013, she intends to either practice intellectual property law or corporate law.