The Maker Community and IP: Lessons From the Digital Millennium Copyright Act

Reprinted with permission.

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Frequently, patent law and patent infringement litigation dominate the conversation when it comes to intellectual property (“IP”) law and lawsuits. But IP law and IP rights cover more than just patents. Disputes centered on copyright, trademark, and trade dress can also greatly impact how a technology develops—just think of music sharing, Napster, and copyright.

So, even though patent infringement litigation has not yet reached 3D printing’s early-adopter maker community, IP enforcement efforts have—in the form of the Digital Millenium Copyright Act (“DMCA”) and its “takedown notices.” By understanding copyright law generally and the specific rules of the DMCA, the maker community may better predict how IP laws could shape 3D printing users rights and choices in the years to come.

Copyright laws and 3D printing

Unlike patents, copyright owners do not necessarily have to do anything to get a copyright. Instead, when a creative work exists in some kind of a copy that allows it to be seen or copied by others―something known in copyright law as “fixation”― a copyright automatically attaches. Copyright protection usually covers things like writings, drawings, musical compilations, sculptures, other original designs, and even machine-encoded expressions like software. But copyright’s protections only extend to the holder’s specific creative expression, protecting neither the function of a work nor the idea that a work expresses. Copyright registration is not a prerequisite to copyright protection, though it does offer multiple additional benefits.

When it comes to copyright laws and 3D printing, some parts of the discussion are quite straightforward. Any artistic or pure-design object should enjoy definitive copyright protection if replicated by a 3D printer. For example, someone who scans an artist’s sculpture and then prints a copy of it would likely infringe the artist’s copyright—and the scan constitutes a copy as does the 3D printed object. In addition, unique artistic expressions contained within CAD design files or build files used by 3D printers to make an object should enjoy their own copyright protection—as should the object created by the printer as a derivative work.

That means that companies may be able to enforce copyrights in objects like toy figurines and decorative home designs against those that use 3D printers to make an exact replica, and may be especially motivated to do so because the Copyright Act allows award of statutory damages of up to $150,000 per work for willful infringement. But companies have to find the infringers, determine if it is worth the cost of enforcing their rights, and then weigh the public relations risks of the company versus consumer litigation ―again, think about Napster and the litigation efforts of the Recording Industry Association of America.

Copyright and 3D printing has other hard questions. Sometimes an item will have both functional and artistic elements. In those instances, only the part of the item that contains artistic expression may get copyright protection. To decide whether or not this kind of item gets protected, courts use a “separability test” that can be both difficult to prove and expensive to litigate. It is also not clear what, if any, copyrights exists for a file created in CAD or other build software (rather than scanned) if the design covers a useful object not eligible for copyright protection or whether using that build file without permission to print the object on a 3D printer constitutes copyright infringement.

3D Printing and the DMCA

So far, copyright issues involving 3D printing have mostly come up in the context of the DMCA. Under the DMCA, websites that host content act as an impartial messenger between those who upload material to that site and those who potentially hold a copyright in that material. When the copyright holder sees content on the website it believes to be infringing, they can send a DMCA takedown notice to the site, objecting to the use and requesting that the file be taken down. Upon receiving this notification, the website typically takes down the content and notifies whoever uploaded the content of the claimed infringement. Following this procedure then gives the website host safe harbor from infringement claims. The entity accuse of infringement can either accept the takedown or notify the site that there is no infringement and repost the content. The copyright holder then either accepts the reposting or sues for copyright infringement.

3D printing has already seen some DMCA skirmishes. 3D printing file-sharing website Thingiverse removed a file for a mushroom based on the European comic “Tintin” after receiving a takedown request from copyright owner Moulinsart ―although other files to created Tintin-based objects still remain available elsewhere. HBO sent a takedown notice to a site offering to sell a 3D-printed, smartphone charging dock shaped like the Iron Throne from HBO’s “Game of Thrones” TV series. Games Workshop (“GW”)―which often takes an aggressive stance when it comes to its copyrights—also sent a takedown notice to Thingiverse after GW found designs for figurines based on those included in GW’s Warhammer game. Though at least some of the file holders tried to negotiate for further rights, the challenged content remains unavailable.

Conclusion: Looking ahead

As 3D printing’s disruptions into ownership of the rights to production continues—and the maker community expands― traditional copyright owners are sure to present challenges to the technology and its uses. But using either general copyright law or the DMCA to protect copyrights from 3D printing-based infringement will likely require an increasingly daunting effort to police all potential sources of infringement. The likely result? Takedowns will happen but, as with Tintin, for every mushroom that gets plucked, a replacement rocket ship will surely launch in its place.

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