3d print

Ten different tests exist for separating an object’s creative elements, which can be protected by copyright, from its functional elements, which can’t be. But now, three 3D printing companies—including online 3D printing marketplace Shapeways Inc.—are asking the U.S. Supreme Court to establish a single test. 

According to the companies, the 10 tests are inconsistent, conflict with one another, and create a great deal of confusion for creators of 3D-printed objects.

“There now exist as many as 10 separate methods for evaluating conceptual separability, and the circuits do not even agree on how to answer questions common to their different tests,” they said in a Feb. 8 amicus brief in support of a Supreme Court petition—in a case called Star Athletica LLC v. Varsity Brands Inc.—to determine one appropriate test.   

Among the existing tests, the 10th is a hybrid created by the U.S. Court of Appeals for the Sixth Circuit.  And the second appears to contradict the third and the sixth.   

From first to last, the tests say the artistic features of an object are conceptually separable if: 

  1. the artistic aspect and the useful article can be perceived as two separate, independent works;
  2. they are primary to the utility of the object;  
  3. they are not necessary to the utility of the object;
  4. the design creates two separate concepts in the mind of the observer;
  5. the design reflects the designer’s artistic judgment independent from  functional influences;
  6. the object’s utility would remain intact after separation;
  7. the object would still be marketable without having a utilitarian function;
  8. they can exist independent of the object’s functional aspects;
  9. on balance, the degree to which the design was motivated by aesthetic concerns outweighs the degree to which it was dictated by function; and
  10. the observer could identify them separately from the utilitarian aspects, and those artistic features can exist independently of the utilitarian aspects.

The 3D printing companies said that, regardless of which one is chosen, having one uniform test is important to clear up confusion and legal uncertainty.

We’ll let you know if the Supreme Court picks one of these 10 or creates a hybrid of its own.