High Court Ruling Likely to Spur 3-D Printing Copyrights

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By Alexis Kramer

A U.S. Supreme Court decision on cheerleader uniform design copyrights will expand the number of 3-D printed objects with intellectual property protection, attorneys told Bloomberg BNA March 22.

The Supreme Court’s 6-2 ruling in Star Athletica LLC v. Varsity Brands Inc. established a single test for separating an object’s creative elements, which can be protected by copyright, from unprotected functional elements.

The new test clarifies copyrightability rules, but it will likely shrink the number of 3-D printed objects in the public domain that are available for anyone to use, Michael Weinberg, general counsel for 3-D printing marketplace Shapeways Inc., said. That could have “ripple effects throughout creative communities,” he said.

Under the test, an artistic feature of an object is eligible for copyright protection if it can be perceived as a two- or three-dimensional work of art separate from the useful object and qualifies as a pictorial, graphic or sculptural work. In an opinion by Justice Clarence Thomas, the court rejected the view that the functionality of an object must remain after the artistic feature has been “imaginatively separated.” An artistic feature eligible for copyright protection “cannot lose that protection simply because it was first created as a feature of the design of a useful article, even if it makes that article more useful,” the court said.

The ruling carries potentially “enormous” ramifications for the 3-D printing industry, Elizabeth G. Kurpis, an intellectual property attorney at Mintz Levin Cohn Ferris Glovsky and Popeo, told Bloomberg BNA. Copyright protection could now apply to any 3-D printed object as long as the creator can argue the object has elements that are not strictly utilitarian, she said.

Kurpis said the expansion is a “tough pill to swallow for an industry dependent on the ability to print a vast array of objects at the push of a button.”

Weinberg said that because the object’s functionality after conceptual separation isn’t fatal to the analysis under this test, more 3-D printed objects will fall within the scope of copyrightability. The rules “suggest that there are a lot more rights at play than people had thought before today,” he said.

Innovation at Stake?

Some producers of 3-D printed objects could benefit from expanded copyright protection, Martin Galese, general counsel at Formlabs Inc., a Massachusetts-based 3-D printer manufacturing company, said. For example, a company producing decorative door knobs through 3-D printing would likely be able to claim copyright protection to its designs, he said.

But the ruling may make it more difficult for smaller producers interested in combining or modifying existing 3-D printing designs, Galese said. “As the number of objects in the public domain decreases, the number of people one has to seek permission from increases,” he said.

The court’s ruling could enable designers to block others from modifying and improving upon their creations, Christopher Buccafusco, an intellectual property professor at Cardozo Law School in New York, told Bloomberg BNA.

“Building on others’ designs will now become more costly, and, in many cases, sequential innovation simply won’t happen because of these added costs,” Buccafusco said.

To be sure, not everyone thinks the ruling will have a negative effect on the industry. 3-D printing companies, including Shapeways, had argued in an amicus brief in the case that 10 different tests existed for copyrightability that were confusing and inconsistent.

3-D printing companies asked for a single test, which the Supreme Court delivered. The new test may be open to interpretation, but there is more certainty than before, Maya Eckstein, a partner and head of Hunton & Williams LLP’s 3-D printing practice, said.

—With assistance from Anandashankar Mazumdar

To contact the reporter on this story: Alexis Kramer in Washington at aKramer@bna.com

To contact the editor responsible for this story: Keith Perine at kperine@bna.com

For More Information

Full text of the Supreme Court opinion at http://src.bna.com/nfx.

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