Jun 3, 2016 | By Kira

In a new whitepaper, intellectual property expert Michael Weinberg initiates a captivating discussion around the question of 3D scanning and copyright law. In order to explain why 3D scans are—for the most part—non-copyrightable, Weinberg separates them into two categories, representational and expressive, and presents a compelling case for why avoiding broad copyright protection is the best option for public policy.

While there’s almost always room for interpretation and argumentation, a general rule regarding United States copyright law is that it is meant to protect originality. It is, therefore, the presence of distinct, creative traits that make something copyrightable or not. So for example, an original fantasy novel is copyrightable, whereas a telephone directory is not.

As Weinberg explains, the majority of 3D scans, known as “representational scans” are made without creative intent, and therefore should not be copyrightable. The primary purpose of 3D scanning is to “create a perfect digital replica of the model being scanned.” Today’s 3D scanners—which range from consumer hand-held models to state-of-the-art professional systems—are designed to capture the exact physical properties of a model, including shape, size, colors and texture, and translate them into a digital file.

An example is the use of 3D scanned evidence. If there were any deviation from the original artifact, the 3D file would be useless in a courtroom.

3D scan of a crime scene used as court case evidence

A great deal of skill, technical ability, and time is undoubtedly required for an accurate 3D scan—but originality? Not so much.

In fact, as Weinberg continues, “injecting ‘original’ content that deviates from the object being scanned into that digital file would undermine the purpose of the scan.” Therefore, “if the scanner is primarily motivated by ‘simply’ making a realistic digital representation of a physical thing, it is unlikely that the scan file will be protected by its own copyright.”

However, there is an obvious exception to this rule, which is that some 3D scans are meant to deviate from the original. As an example, Weinberg discusses Sophie Kahn’s 3D printed portraits, which are based on purposefully distorted 3D scans (see also Rosalie Yu’s intimate 3D scanned sculptures). These types of “expressive scans” can vary significantly from one to another. The goal is to make a statement, or stimulate emotion, not to create a reproducible and verifiable copy. Though a minority in realm of 3D scanning, expressive 3D scans are eligible for copyright protection.

Sophie Kahn's 'expressive' 3D scans are eligible for copyright

Having established the ‘short answer’ to whether or not a 3D scan can be copyrighted, Weinberg goes on to explore the “yes but what about…?” questions in order to help people making and distributing 3D scans better understand their rights.

For example, he points out that although most 3D scans are non-copyrightable, the act of 3D scanning itself could be considered an infringement if the object is protected by its own copyright. This was the basis for a case last year, when a man was (wrongfully) accused of copyright infringement after 3D scanning a Michelangelo statue.

At the heart of Weinberg’s 16-page whitepaper, is the argument that most representational 3D scans cannot and should not be copyrightable, and that imposing broad 3D scan copyrights would impose negative societal costs.

“Avoiding granting copyright protection to representational scans is not only legally sound, it is also good public policy,” he writes. Rather than letting individuals use copyrighting as a tool for ‘monopolizing the public domain,’ he believes that representational 3D scans should be free to copy, allowing the public to access them as historical or technical records.

“A lack of copyright on scan files will also make it easier for designers to access and build upon digitized works,” he continues. “Once the sculpture is digitized anyone is free to print their own copies to have at home or in classrooms, increasing access to our collective digital heritage.  Furthermore, those scans can be freely remixed into new interpretations of classic works. These scans can form the building blocks of all sorts of new creativity – new creativity that might itself be protected by copyright.”

Finally, he argues, copyrighting representational 3D scans isn’t necessary in the first place. While copyright is ultimately a tool for protecting and controlling content, it isn’t the only method of control. Professional 3D scanning companies can protect their work by charging for the 3D scanning service. They can also charge customers for access to the 3D scans once they are made, ensuring that they are properly compensated for their skill, time, and technical abilities.

While we regularly come across stories regarding 3D printing and the law, 3D printing’s sister-technology, 3D scanning, is also becoming more affordable, accessible, and accurate. From replicating entire archeological sites to 3D scanners built right into our smartphones, users must understand their rights and responsibilities.

Michael Weinberg is no stranger to the hazy questions surrounding 3D printing and IP in the United States. He has previously written several whitepapers on 3D printing and copyright law, as well as steps for licensing 3D printed goods. As always, his writing is directed at a non-legal audience, making it refreshingly clear, concise, and enjoyable to read.

Check out the entire whitepaper, titled “3D Scanning: a World without Copyright” here, and let us know—what do you think? When should or shouldn’t a 3D scan be copyrightable?

 

 

 

Posted in 3D Scanning

 

 

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Joe wrote at 6/12/2016 4:45:43 AM:

For the sake of this discussion, I am going to assume that the object being scanned is, itself, in the public domain. And that the person doing the scan has not been permitted from doing so on private property. It is established that a photographer holds the copyright to the image he created. So, it is reasonable that the same thing would be upheld for a 3D "photograph". Of course, there are some differences. A photographer often makes creative choices, such as the time of day, the angle from which he takes the photo, etc. But, 3D scan is normally intended to be a faithful reproduction of the object, with those types of creative choices deliberately omitted. But, some photographs are taken without a lot of artistic judgement. They may simply point and shoot. Many news photographs may be like this. There may be several people standing near the same spot, at the same time, and will likely come up with photos that are nearly indistinguishable from each other. But, they still enjoy the protection of copyright law. Ultimately, we are seeking to uphold the scripture, "The laborer deserves his wages". Making a 3D scan of an object is not typically a simple "point and shoot" operation. There is often quite a lot of work to create a complete scan of an object. So, that is what I think drives the conclusion that the 3D scan should enjoy the protection of copyright.



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