May 5, 2016 | By Alec

3D printing is going to Washington, and for a very unusual legal issue that could affect all of us. 3D printing companies Formlabs, Shapeways and Toronto-based 3D scanning and 3D printing provider Matter and Form have sent an amicus brief to the US Supreme Court, seeking clarification over a copyright issue in a 2015 6th Circuit Court of Appeals ruling. This new ruling could have a huge effect on DIY 3D printing and design, as it argues that designs that are not 100 percent utilitarian can be copyrighted. This places the entirety of 3D printable designs with non-strictly-functional elements at risk and exposes the entire 3D printing community to legal action.

Specifically, the amicus brief focuses on the case of Star Athletica v. Varsity Brands, which the Supreme Court has already agreed to hear. The case itself revolves around cheerleader uniforms, but could have extensive consequences for copyright law in general. The issue dates back to 2010, when the young cheerleader uniform supplier Star Athletica published its first catalog of uniforms. They were immediately sued by global player and competitor Varsity Brands, which claimed that the new uniforms violated their copyrighted designs.

We’ve never seen a 3D printed cheerleader uniform, so this might look inconsequential for the 3D printing community. But last year, the 6th Circuit Court of Appeals ruled that Star Athletica did in fact infringe on Varsity copyrights by relying on a completely new form of legal logic: the court asserted that the shape of the dress and the position of stripes and lines can be copyrighted. It hinges on a completely new Severability concept: If the utilitarian core of a uniform can be separated from creative parts, it can be copyrighted. Because the uniform can exist as a plain white dress with no additions, any stripes, lines, colors, buttons and decorations are all forms of creative expression. “A plain white cheerleading top and plain white skirt still cover the body and permit the wearer to cheer, jump, kick, and flip,” the judges said in their decision.

This changes the copyright landscape considerably, as the US government has never allowed copyrights on so-called ‘useful articles’, which included clothing until 2015. In response, Star Athletica has taken the case up to the Supreme court. “[The decision] exacerbates a circuit split and defeats Congress's well-recognized denial of copyright protection to garment designs or uniforms, despite lobbying by the garment-design industry for more than a century,” the company said in their petition. “[under this new decision] industrial designers can claim copyright protection for pleats on tennis skirts, button patterns on golf shirts, and colored patches on rugby uniforms.”

While this ruling initially affects clothing, the consequences for 3D printed objects and other designs are immense. Theoretically, everything from toothbrush bristles to chair cushions can be protected by copyright under this new reasoning, just as long as creators can argue that any element isn’t strictly utilitarian. A 3D printed pencil case that does anything other than strictly hold a pencil in place can be protected by copyright law. It’s a huge boost for copyright owners with big pockets who can now start suing people not just for specifically copied designs (such as a 3D printed Bulbasaur planter), but for a planter that resembles a creature as well.

As this can have a tremendous impact on 3D printable file repositories such as Thingiverse, action had to be undertaken. Formlabs, Shapeways and Matter and Form are specifically seeking clarity on how to separate creative, copyrightable designs from the unprotected utilitarian objects. In the amicus brief, the companies explain that copyright law is bogged down by a significant gray area. “The present case presents a critical opportunity to resolve this uncertainty and remove the chill it creates on innovation,” the companies write. “In the $330 billion apparel industry, this Court’s setting of ‘the standard analytical tests all courts use to determine copyrightability’ would ‘lead to greater predictability when it comes to determining parties’ rights and liabilities.’”

A lamp is not copyrightable, but a leg design is.

Matter and Form further argued that this settlement is needed to get better idea of what 3D printing can achieve. “As the capacity to 3D scan and 3D print becomes increasingly available to everyday consumers, a clear copyright test is the only way to ensure that companies and customers can safely unlock the full value of this new technology,” they said in a statement.

While cheerleader uniform designs thus seem to be completely unrelated to 3D printing, the impact of this case can be huge. While these three companies are the first to step forward with this issue, a large portion of the 3D printing industry will doubtlessly also keep a close eye on the case’s proceedings. Together with the Apple v. Samsung case over rounded phone corners, which is heading to the Supreme Court later this year, it could fundamentally change the way intellectual property is claimed.

 

 

Posted in 3D Printing Application

 

 

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