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A few years ago, a JETLaw author noted in this blog that 3D printers had become relatively small and affordable. That particular author projected, along with many others, that this exciting technology would soon begin to have large IP law implications.
It’s happening. 3D printing has been around for a while, but it was sufficiently unknown then that we felt obliged to include an explanatory paragraph detailing how the device is able to “print” 3D objects layer by layer. No longer. 3D printing, as a concept, is now ubiquitous enough that President Obama mentioned it in his State of the Union address on February 12th.
And the next day, Wired.com reported that HBO had sent a cease-and-desist letter to a man named Fernando Sosa, who was using a 3D printer to print and sell a Game of Thrones-themed iPhone dock. Ferdinand had actually designed the throne himself, using the popular 3D modeling program Maya. But he modeled it very closely after the Game of Thrones design and quite openly sold it on his site, without a license from HBO. He has since attempted to obtain the license unsuccessfully and is no longer selling the iPhone dock. For those interested, Game of Thrones is a popular target for 3D printing enthusiasts.
Sosa’s case is relatively minor, but the obstacles 3D printing poses for IP law is not. Copyright law is an imperfect fit when we are dealing with objects. You cannot copyright useful articles, things with intrinsic utilitarian functionality. But you can copyright the design of an object. Courts employ a “severability” test, asking if the artistic choices made in a design can be severed from the function of the object itself. Sometimes, this is relatively simple. Some design elements can be physically severed. But other times it is a very fuzzy line as courts try to decipher what can be “conceptually” severed. Theoretically, many objects we buy could be freely copied by a 3D printer without legal implication because those objects are useful articles. And severability does not even begin to get into the issue of unauthorized derivative works, such as Sosa’s iPhone dock.
Public Knowledge, a public interest group, recently hosted a free publication online exploring the mostly unanswered questions 3D printing raises in the field of copyright. It’s a subject sure to employ many IP lawyers in the coming decades. In the meantime, we can all dream of the day we order our very own Scales of Justice from Amazon and print it out immediately.
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