Will the Explosion of 3D Printing Mark the Implosion of Copyright Law?

By Misa Bretschneider

Last Wednesday marked another chapter in the clash between 3D printing and copyright law. Square Enix, the Japanese game developer behind Final Fantasy VII, devastated gaming fans when it pulled the plug on the sale of fan-made, 3D-printed Final Fantasy VII figures. When Joaquin Baldwin decided to use 3D printing technology to recreate and sell high-quality figures of the game’s most popular characters on Shapeways (a marketplace for user-designed 3D-printed objects), the figures started selling like hotcakes. However, Square Enix soon learned of Baldwin’s efforts and sent a DMCA takedown notice to Shapeways. Adhering to its takedown policies, Shapeways promptly removed the merchandise from Baldwin’s profile “[i]n order to comply with the DMCA and protect intellectual property right owners”.

This wasn’t the first time copyright law was used to halt the production of fan-made 3D-printed products. Earlier this year, HBO, which owns the rights to the Game of Thrones show and its associated IP, effectively stopped a fan from selling a Games of Thrones–inspired iPhone dock.  In its cease-and-desist letter, HBO maintained that the homemade dock infringed on HBO’s copyright in the distinctive “Iron Throne.”

But is such litigious behavior a practical legal strategy for copyright owners? And is it a good business strategy?

3D printers are additive manufacturing devices that build objects by piling up successive layers of material until a desired shape is produced. 3D printers can be used to create a variety of products—replacement toaster parts, guns, organs—you name it, it’s probably 3D-printable.   However, as 3D printers become cheaper and websites offering 3D-printed blueprints crop up all over the web, it’s unclear whether copyright owners can effectively protect their copyrights from infringement via 3D printing. Indeed, many legal experts warn that 3D printing could spark an intellectual property law Armageddon and bring “the demise of intellectual property”. While such statements might sound melodramatic, everyone from Goldman Sachs to President Barack Obama has identified 3D printing as a key disruptive technology that has the potential to revolutionize the way we make almost everything.

While copyright owners like Square Enix and HBO may try to curb infringing 3D-printing activities, it seems such actions will ultimately prove ineffective at stemming the tide of infringing printing. Hint: recall the Recording Industry Association of America’s futile attempts to curb music piracy with litigation.  But beyond being ineffective, such actions could prove harmful to the copyright holders, as there could be a significant backlash from suing fans.

In response, some companies are wising up to the 3D-printing explosion. For instance, Coca-Cola has integrated 3D printing into their marketing strategy. Similarly, Nokia is encouraging the printing of custom cases for its phones.

So what’s a copyright owner to do? There’s no easy answer. For one thing, the relationship between copyrights and objects has been notoriously tenuous. Specifically, decorative elements in a given object are copyrightable, but objects with inseparable creative and utilitarian elements are not copyrightable. Also, the continual expansion of fair use in copyright law renders the scope of copyright uncertain in the face of emerging technologies.  Recall the Betamax case, when the Supreme Court surprisingly (at the time) held that “time shifting” was a fair use. That ruling spawned, among other things, modern DVR systems, which have revolutionized how we consume television programming. Will 3D printing be another phenomenon that further expands the scope of fair use?

Furthermore, is the clash between 3D printing and copyright just another example of the unworkability and obsolescence of copyright law in its current form? Congress is now in the midst of a comprehensive review of the Copyright Act. Will this review garner greater rights for copyright owners, or will Congress carve out a stronger fair use exception in favor of 3D printing and like processes?