Keep up with the latest developments and legal issues in the telecommunications and emerging technology sectors, with exclusive access to a comprehensive collection of telecommunications law news,...
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.
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 email@example.com
Full text of the Supreme Court opinion at http://src.bna.com/nfx.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)