Join Us For The Net Neutrality Day Of AdvocacyRSVP For September 27-28
If you pay attention to intellectual property (IP) issues on the internet, there is probably one concept that is on your mind more than any other: “fair use.” Fair use has been at the forefront of debates surrounding internet IP issues for a good reason. It is a way to answer the question “when is it OK to copy something that is protected by copyright?”
In some ways the prominence of fair use is a historical fluke tied to the technical abilities of computers on the internet. That is because jumping to a fair use analysis skips over a critical question: does copyright even apply? The importance of this question is highlighted by the case of Todd Blatt. Blatt created a copy of a cube from the movie Super 8, and then uploaded it to be 3D printed at Shapeways. A few hours later he received an email from Paramount Pictures insisting that he take it down because the cube violated Paramount’s copyrights. In this case Paramount is probably legally right in claiming ownership of the cube. But in the world of 3D printing that is not always so clear.
It is tempting to respond to this incident by jumping right to a fair use analysis. (What is the purpose and character of the use? What is the nature of the copyrighted work? What is the amount and substantiality of the portion used? What is the effect of the use upon the value of the original work?) However, rushing to fair use skips over a critical preliminary question: is the cube even protected by copyright in the first place?
There is a reason that many people picked up the habit of skipping over this question in the internet copyright world. By and large, the answer will be “yes.” Traditionally, the types of things that are easily created and replicated online are the types of things that are protected by copyright. Music, movies, articles, books, photographs – all of these fit well within the scope of copyright.
But 3D printing expands the scope of what can be easily created and disseminated with a computer attached to the internet. As I wrote previously in the context of Settlers of Catan and the Penrose Triangle, many physical objects are outside the scope of copyright protection. This would make a fair use analysis unnecessary. After all, there can be no copyright violation without an underlying copyright.
The Super 8 incident is a good opportunity to walk through this process. As a general rule, copyright does not extend to “useful objects.” Useful objects are objects that actually do things (besides just look nice). In general, if you want to protect a useful object you need to apply for a patent.
[*Spoiler alert in this paragraph*] The Super 8 cube recreated by Blatt is actually a small piece of an alien spacecraft in the movie. That means, in the world of the movie, it would probably be a useful object protectable by patent, not copyright.[*Thus concludes the spoiler alert*]
That is true of other science fiction inventions in movies. Doc Brown’s DeLorean would not be protectable by copyright in the world of Back to the Future because it is a useful object. The same could be said for a Star Trek phaser and a Star Wars lightsaber. Within the confines of the respective films, these objects do something: travel back in time, shoot aliens, and cut Darth Vader respectively. In order to protect these inventions, their inventors would need to hike over to the patent office.
However, in our world (“reality”) these objects are not useful in a legal sense. They are just props, essentially decorative sculpture. They do not really travel through time, or aggressively focus energy, or do much of anything besides look neat. As a result, they are not protectable by patent. Instead, they most likely fall within the scope of copyright.
Ultimately, this means that Paramount is probably legally correct when it asserts that it owns a copyright in the Super 8 cube. Although many of the objects that are created by a 3D printer will fall outside the scope of copyright, the cube does not appear to be one of them.
This does not mean that Blatt’s copy of the cube is not protected by fair use. It just means that the copy triggers a fair use analysis in the first place.
Even though this specific incident results in the conclusion that the cube is protected by copyright, it does illustrate the fact that in the world of 3D printing such a conclusion is not automatic. As you can imagine, 3D printers are capable of producing all sorts of useful objects outside of the scope of copyright. Just because a problem involves digital technology does not mean that the solution is governed by copyright.
As Professor Ian Hargreaves correctly pointed out in his UK Digital Opportunity report “[d]igitial technologies are based on copyright, so copyright becomes their regulator: a role it was never designed to perform.” There is no reason to stretch copyright even further out of habit. The next time there is a story about a copyright claim being made in the world of 3D printing, do not just assume that copyright applies at all.