Copyright

A. The right of reproduction
The copyright owner has the exclusive right to recreate copies of the
work. 17 U.S.C. § 106(1) Copies constitute “material objects . . . in
which a work is fixed by any method now known or later developed,
and from which the work can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or
device.” Id. § 101. A person using a 3D printer to recreate an object
that is based on a work owned by another (e.g., recreating that new
fabric pattern) runs the risk of infringing this right.
3D PRINTING
B. The right to prepare derivative works
A derivative work is based upon a preexisting work and can be in the
form of an “art reproduction . . . or any other form in which a work
may be recast, transformed, or adapted.” 17 U.S.C. § 101. An author
of a derivative work must be authorized by the original copyright
owner. Schrock v. Learning Curve, 586 F.3d 513, 523 (7th Cir. 2009).
Thus, simply changing the medium of the work does not avoid an
owner’s derivative work rights. Durham Indus., Inc. v. Tomy Corp.,
630 F.2d 905, 910 (2d Cir. 1980). A person using a 3D printer to
transform an existing work owned by another into a new object (e.g.,
using a fabric pattern to creating a new cell phone case) runs the risk
of infringing this right.
C. Right to distribute works
The owner of a copyright enjoys the exclusive right “to distribute
copies … of the copyrighted work to the public by sale or other
transfer of ownership, or by rental, lease, or lending.” 17 U.S.C. §
106(3). Distribution is “the distribution of copies…of a work to the
public by sale or other transfer of ownership.” § 101. Distribution
also includes offering to distribute a copy for the “purposes of further
distribution, public performance, or public display.” § 101. A person
selling an object printed from a 3D printer that was based on an
existing work owned by another runs the risk of infringing this right.
D. Right to publicly display works
The owner of a copyright enjoys the exclusive right “to display the
copyrighted work publicly.” 17 U.S.C. § 106(5). Displaying a work
encompasses showing “a copy of it, either directly by means of a film,
slide, television image, or any other device or process.” § 101. The
right to public display of a work also means to “display it at a place
open to the public or at any place where a substantial number of persons
outside of a normal circle of a family and its social acquaintances is
gathered . . . .” Id. Public display also includes the transmission or
communication of a display of the work “to the public, by means of
any device or process, whether the members of the public capable of
receiving the performance or display receive it in the same place or
in separate places and at the same time or at different times.” Id. This
concept of display is sufficiently broad to capture transmission of an
image through “any sort of information storage and retrieval system”
“
A major concern with 3D
printing and copyright law is in the
potential for widespread personal
manufacturing of copyrighted
works.
”
CTC Legal Media
such as a “computer system.” Playboy Enterprises, Inc. v. Frena,
839 F. Supp. 1552, 1556-57 (M.D. Fla. 1993). Consequently, filling a
computer screen with a copy of an “image fixed in the computer’s
memory” is a public display. Perfect 10, Inc. v. Amazon.com, Inc., 508
F.3d 1146, 1160 (9th Cir. 2007). A person uploading a YouTube video
of an object he created using a 3D based on an existing work owned
by another runs the risk of infringing this right.
E. Direct and secondary infringement
Direct copyright infringement occurs when an individual other than
the copyright holder violates one or more of the copyright holder’s
exclusive rights to a work. That is, there must be a direct infringement
by a person/organization of one of the exclusive rights. Secondary
infringement occurs when a person/organization facilitates another
person to infringe upon a copyright. Secondary liability has grown
from common law, meaning that it is not provided for by the statute
but rather was developed from case law. Secondary liability comes
in two forms: vicarious liability (derived from tort law when the
superior, such as an employer, is responsible for the actions of the
employee) or contributory liability (where a party intentionally induces
or encourages primary infringement and fails to exercise his/her
ability to stop the primary infringement).
Conclusions
3D printing runs the risk of implicating one or more of these at
different stages of the process. For example, if a company rents a 3D
printer knowing that the user is committing direct infringement, it
could be held liable for contributory infringement.
Similarly, a consumer who copies an existing work by printing the
object with a 3D printer is (technically) liable for copyright infringement
unless the consumer has permission from the copyright owner.
However, while 3D printing of copyrighted objects at home may
constitute an infringement, these copyright rights are likely to become
increasingly impractical or impossible to enforce. For example, how
does an owner of work learn about the home printing?
Like other technological advancements we have seen (for example
computers or the Internet), 3D printing may very well change, even
radically change, the environment in which we live and play. As with
every change we have seen before, these advancements run the risk of
having significant negative impact on rights holders. For example,
the invention of Internet file sharing programs and sites had serious
and negative consequences for music and movie copyrights owners.
Similarly, 3D printing technology may have similar implications for
artistic copyrights owners, design rights owners, and the owners of
trademarks and patents. It remains to be seen how 3D printers will
actually develop and how the legislation will deal with these upcoming
challenges.
THE COPYRIGHT LAWYER
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