To License 3D Content You First Need To Own It

Last week Geomagic COO, Tom Kurke, wrote 2 blog posts called The call for a harmonized “Community” License for 3D Content. In these posts, he makes the case that there is no way to license 3D content properly. And he is right.

The problem is that current IP laws only offer limited protection for 3D content. Obviously these laws were written when 3D content was not available yet. To license content you first need to own it. Copyright only extends towards the physical unaltered file of the 3D content itself or 3D render of the 3D content. This means that when a designer redesigns a faithful copy of the 3D design, the options to claim copyright are extremely limited for the original designer. Current copyright laws offer no protection on aesthetics or function. Especially in relationship to 3D printing, those are especially important aspects of 3D design to protect.

Other IP laws like design patents and trademark – namely trade dress – are beyond the financial options for most hobbyist and semi-professionals.

So, if you cannot claim ownership of a design, you cannot license it to others. All community sharing licenses – like GPL or CC – are geared towards licensing copyrighted content for others to use. They deal with photos, software and text. These are common media broadly protected by copyright.

The first task is a mechanism to establish ownership of a 3D design and give the owners broad protection on the applicability of their ownership. But I cannot oversee what the implications that change will be. I see a major risk that they can become very restrictive since every major corporation in the world will claim ownership of their 3D designs.

So yes I am not surprised there is no harmonized community license. What would be the point?

  • http://twitter.com/TomKurke TomKurke

    First, thanks for the mention.  I do want to clarify and react to a few
    issues in your post.

    Copyright fully protects creative, artistic 3D objects,
    today (and it has in the past).   I
    absolutely disagree that “IP law offers only limited protection for 3D content.”    The
    mechanism exists today.  If you create
    it, it is original, it is creative, and not just in your head, it is protected
    by copyright.

    The U.S. Copyright Act itself makes clear that 3D objects
    (like sculptures) if they are “original” and “fixed in a tangible medium” they
    are protected by copyright without any further action required by the creator.   There is relative uniformity throughout the
    world (as to what is subject to copyright) but certainly disagreements on
    acceptable uses (e.g. “fair use”).   Yes, certainly, functional or utilitarian
    aspects of 3D content are not protected by copyright (but could be design
    patents or otherwise) – but the creative and artistic elements most certainly and
    immediately are.  This isn’t an academic question;
    it is and will be a big challenge (as we see more and more DMCA take down
    notices to service providers in the create/modify/make ecosystem, ironic in
    many ways because the DMCA likely doesn’t even apply).

    If a 3D object is subject to copyright protection, and
    someone else take that object and modifies it (without license or attribution),
    that downstream work is potentially an unauthorized derivative (and the person
    who does it might be subject to an infringement claim). 

    I am most certainly not trying to chill any innovation in
    the create/capture/modify/make ecosystem (my company is part of it too), but
    there are issues, and they need to be resolved from a policy perspective.  These issues aren’t going to go away.

    The CC and GPL licenses do not currently work because they
    were created and are geared for different purposes.  I believe with limited modifications,
    something like the CC could work quite effectively with respect to 3D content
    (although it would not cover the entire scope of IP that the GPL scheme does).

  • Michael Weinberg

    I agree with the central concept of the post (that you can’t license what you don’t own), although I also agree with Tom’s clarifications about the extent to which copyright is embedded in many of these objects. 

    I do want to push back against the end of your post.  It is true that a first step in creating a universal license for 3D printed objects would be to establish broad protection for the objects and the design.  However, that is something that should not be done lightly.  In fact I haven’t seen any evidence that it needs to be done at all.  We have had tools to reproduce physical objects for thousands of years, and certainly since the founding of the United States.  There is no evidence that we need to expand the ownership right of physical objects in order to convince people to make more of them.

    Ultimately I worry that people will see the limits of current IP protection as some sort of loophole that needs to be closed instead of an intentional feature of the careful balance that makes up IP protection.  While there is something to be said for easy, comprehensive licensing there is also something to be said for not needing to license anything in the first place.

  • Michael Weinberg

    I guess I should also clarify my support of Tom’s clarification.  While I agree that copyright covers more than is suggested above (hence with Tom), I also agree with you that IP law’s protection for 3D content is somewhat limited. This is especially true when compared to written content.  If an object is protected by copyright all of Tom’s caveats apply.  However, one of the things that excites me most about 3D objects is that there are plenty of them that aren’t protected by copyright.

     One of the most interesting things that will happen in the next few years is to watch people come to terms with those objects that are not protected by copyright.  The objects protected by copyright will bring their own problems (as I know Tom understands intimately, many people in the 3D capture world are not prepared for the fact that even buildings can be protected by copyright).  However, those conversations are going to be very similar to the ones that we are already having about digital copyright.  The discussion about re-realizing that not everything has a rightsholder may be somewhat new.

  • http://twitter.com/TomKurke TomKurke

    This is a good discussion.

     

    The challenge with 3D content is navigating a host of
    statutory and case law considerations as to what is, and what is not, a
    protectable intellectual property right. 
    I am putting aside the broader question of whether the scope of
    intellectual property protection itself is overbroad (that is a public policy
    argument itself).

     

    Copyright, in particular, poses some real challenges with
    respect to 3D content. While 3D objects can be characterized as entirely useful/utilitarian
    or entirely creative, in many instances they are a blend of both.   They are a functional object with creative
    elements.  A classic example is a vase
    with a unique and creative floral pattern on it (either painted or embossed).  While the general shape of the vase is likely
    not protected by copyright (because it serves a utilitarian function of holding
    a liquid) the creative floral pattern is. 
    So, one object can have protectable and non-protectable elements.

     

    This is why I think it makes a lot of sense to consider a
    modified version of the CC licensing scheme (or the GPL scheme because of the
    framework for patents as well) for the create/modify/make ecosystem.   Such a
    scheme would be obviously inapplicable to the functional elements of an object
    (because those aren’t subject to copyright protection) but would apply to the
    creative elements (of the very same object). This provides for a ‘belt and
    suspenders” approach.

     

    Such a scheme is not concession that 3D content is generally
    subject to copyright, it simply provides a mechanism for the freer exchange of
    data, particularly in the instance where the uploaded 3D content is creative in
    any form. It removes risk from the service providers in the ecosystem as well
    as the downstream information consumer (e.g. somebody who modifies an uploaded
    shape, creates a derivative, etc.). 

  • http://robert.schouwenburg.com Robert Schouwenburg

    Those are excellent comments Tom and Michael. Thanks.

    It is exactly the grey area between functional and decorative elements to which I wanted to refer to. You describe much better than I did.
    I get quite a lot of feedback from designers who feel uncomfortable with the current  protection of designs. The more well known designers have been victim to counterfeiting and copying of their designs. It is hard for them to act on it. Especially since most of them work independently or in small collectives.

    Now I am not debating that a licensing scheme like CC for 3D content is a bad idea in itself. Communication is everything and that is one of the important aspects of licensing schemes. I just want to make everybody aware that the applicability is limited to a certain extent.

  • http://www.dwayne-ellis.com/ Dwayne

    Your collective knowledge far surpasses mine in this area as i am a 3d generalist with some areas that are specifically touched by this subject.  For the last little while we’ve been trying to understand what the copyright and licenses that accompany 3d models really mean.  I mean in the sense of “what people can do with our models as well as what we can do with other peoples models”.  Like a car model for instance.  The design is held by the car manufacturer…so anyone that creates a 3d model by any means, be it a blue print, digitizing arm, 3d scanner is breaking copyright? 

    Is it illegal for someone to take a model of mine (or a
    purchased model) and retopologize it and then sell it?  They aren’t really
    redistributing “my” model, and the model that they generated is quite
    different (in topology) then my own albeit extremely similar in overall shape
    and likeness. They would have essentially used my model as a template to create their own.
    I’ve read a tonne of license agreements and I’m having a hard time with this
    because it seems like a grey area.  Most agreements that I have read so
    far talk about the original content and what you may or may not do with it…as
    it relates to usage and distribution of the “original” model.  Only one
    that I have come across mentions derivative works…which I assume this would
    kind of fall under….but how far does that “derivative” concept extend?  There just seems to be so much grey area.

    • http://robert.schouwenburg.com Robert Schouwenburg

      You cannot copyright a topology. Only the design pattern features are protected via copyright or a design patent. But patents are quite problematic since they do not offer a lot of protection.

      In essence protecting physical objects is much harder than 2D media.

      There is a reason why logos and brand marks are so prominently shown on clothes. It is the easiest thing to protect. The design of the cloth itself cannot. Though a pattern can be like Gucci is doing with their bags for instance.

      • Dwayne

         Hmmmm….so if someone models a Ford Mustang, someone else can take that model and use retopo tools and re-model it and sell it if they wish?  Since Ford are the original holders of the copyright.

        • http://robert.schouwenburg.com/ Robert Schouwenburg

          Pretty much. Though I think they probably can still take it down based on trade dress or design patents. Also realize that whenever a rendering is shown of the topology, it enters the copyright realm again.

          • Dwayne

             Yeah….the rendering of the topology not the actual 3d model though.  At least thats how i understand it.

      • Paul

        To understand better…can i print “Gucci” word on any model ?

        • http://robert.schouwenburg.com/ Robert Schouwenburg

          No you cannot. It is a trademark.

          • Paul

            i have seen models from sci-fiction movies..can they be freely created ?

          • http://robert.schouwenburg.com/ Robert Schouwenburg

            In general no. Trademark and trade dress are probably protected for movies. There is a huge franchise market around movies and toy companies are on it with regard to protecting their product lines.

  • jon

    Thank GOD 3D design is not copyrightable.
    I make hand made metal lampshades – could you imagine for a basic shape like that if it was possible to copyright – who will copyright the parabola or the circle. Its bad enough with US companies trying to copyright genes – we all own this information and we all own geometry 3D or 2D.

    Its fair enough to copyright a photo or a painting or a celebrities likeness but we have to be careful not to give away what we already own. The sphere, the circle, the parabola and all shapes or variations on it are already owned by everyone.

    Stop the US lead madness of putting a price on everything that already belongs to us and then carving it up – denoting ownership and so on.

    Shape is more difficult than say a photo – a photo is a particular rendering of a shape under certain lighting conditions and textures. You can copyright a photo but there is nothing to stop me taking a photo from the same place and saying thats my version. A photo is a rendering of a reality – its unique, the reality is however universal and you cannot copyright the thing you took the photo of – you can copyright a photo of your dog but you cannot copyright a dog.

    Keep copyright away from geometry, shape (2d or 3d).

  • http://www.3dprintler.com Michael G
    • http://robert.schouwenburg.com/ Robert Schouwenburg

      Wow. Happy to hear everyone was so cooperative!

      It reminds me of ad agencies plucking photos from Instagram etc and using them in campaigns.

      Would you have agreed for them to use your design if they asked you?

      • http://www.3dprintler.com Michael G

        They were selling our design and it wasn’t fair. If they would pay us a royalty then maybe.
        We started a new project which is entirely free and open source – http://3dponics.com
        Let me know what you think

        • http://robert.schouwenburg.com/ Robert Schouwenburg

          Love it! Does it work? The dropcam is dark atm. :)

          • http://www.3dprintler.com Michael G

            Thank you for pointing it out. Fixed it now.