3D Print Wars: Episode II

 

 

 

     This Episode is about 3D printing and copyright law, but in case you missed it, first check out 3D print Wars: Episode I to learn about 3D printing in general.

     For years, Warhammer tabletop gamers have sculpted and painted miniatures (tabletop game pieces) with few legal obstacles. However, the Warhammer 40,000 fans of the world recently learned that expanding their creative hobby of customizing miniatures to the realm of 3D printing may invite copyright liability.

     Late last year, Thomas Valenty realized the potential problems associated with this mind boggling technology, and he recently shared his story with Wired. Knowing that his brother owned some Warhammer 40,000 Imperial Guards, Valenty designed his own 3D “Warhammer style” miniatures— a two-legged war mecha (an all terrain bipedal battle vehicle) and a tank. [1] He saved the 3D model as a computer file, which he was then able to print on his household Makerbot 3D printer.[2] Valenty also uploaded the files to Thingiverse—a file sharing hub and a forward thinking website, created by two self-professed hackers,[3] which houses user-generated content. Thingiverse allows Warhammer fans and tech savvy innovators to upload and download files for free and print a world of things, generally on their 3D printers.

     Well, trouble in printing paradise followed. Upon discovering Valenty’s files on Thingiverse, Warhammer’s original creator, Games Workshop (“GW”), sent a copyright takedown notice to Thingiverse pursuant the Digital Millennium Copyright Act (DMCA). Apparently, Thingiverse quickly removed the files, and Valenty has uploaded only a few files since. According to Wired magazine, “Valenty suddenly became an unwilling combatant in the next digital war: the fight over copying physical objects.”[4]

     Customizing one’s miniatures is a longstanding tradition within the tabletop gaming culture. For example, a Warhammmer 40,000 hobbyist might individualize a miniature model by using a craft knife and some “greenstuff” (modeling putty) to sculpt additional details. Wargamers can also reposition weapons and paint miniatures. This allows a hobbyist to create his or her own unique warrior—also known as a conversion. GW understands the gaming culture and encourages conversions under certain circumstances. In the legal section of its website, GW states that “conversions should be one-time, unique masterpieces of hobby goodness.”

     So, while customizing your own Dreadnaught or Imperial Guard miniature conversion at home for personal use may not alert GW’s intellectual property radar, creating a computer file, which encompasses a 3D model of a presumably copyrighted Warhammer figurine, and then sharing that file on the Internet for the world to download and print, appears to be ‘a whole nother’ tabletop game in the eyes of GW.

     Not surprisingly, an onslaught of Internet commentary followed the takedown notice. For instance, Alan Wexelblat, who writes for Copyfight Corante, suggested that GW’s takedown notice was “an inappropriate use of the DMCA” because the “file isn’t itself a copy of anything. It’s an original work.”[5] Another blogger, named Andy, sent an email to GW requesting “a copy of the notice and what points of the DMCA [], Thingiverse has allegedly breached.”[6] Valenty (under the username 3dYeti) replied to Andy’s article stating that, “[N]o money was trading hands. This was “fan-art. There was no confusion as to what it was…It may have been that the likeness, in conjunction with using actual names, caused GW to send the DMCA. I thought that as long as I labeled it as unofficial/unlicensed, it wouldn’t matter. I was not looking to sell knockoffs.”[7]

     Legal conclusions aside, regardless of whether money is trading hands, problems may arise if someone fulfills a need from which GW was previously profiting. Perhaps Wexelbalt said it best when he asked, “If I can put up my own Warhammer figures for cheap, why would I buy the [GW] originals?”[8] Many tabletop gamers have since called for GW to upload its own 3D models so that ‘wargamers’ can download officially licensed miniatures. By charging a fee that reflects the true value of a miniature, copyright owners could “work with these sorts of technology changes rather than against them.”[9]

     Two main issues arise from Valenty’s story. First, by creating computerized models of the “Warhammer style” figurines, is Valenty liable to GW for copyright infringement? Second, by operating the website where Valenty posted his potentially infringing files, is Thingiverse liable to GW for copyright infringement? As a good lawyer always says— it depends. In order to prove that Valenty infringed GW’s copyright, GW must show 1) it owns a valid copyright, and 2) Valenty copied the constituent elements of the work that are original to GW.[10]

     A work can be copyrighted only if it is “original.”[11] Originality requires two things: that the work is “independently created by the author” and contains a “minimal degree of creativity.”[12] Facts and ideas, on the other hand, are not copyrightable. Take a photograph, for example. Say you shoot a picture of a scene that includes a tree, a car, a bunny, and a space cowboy. You cannot copyright (and therefore prevent someone for copying) the fact or the idea that the space cowboy was driving a car with a bunny in his lap before hitting a tree. But you can copyright the components of the photograph that encompass your decisions regarding lighting, shading, costume, positioning, and other touches of individualism and creativity that when arranged together create an original expression. This is the idea/expression or fact/expression dichotomy in copyright law. It’s a grey area, which (in addition to the fact that 3D printing is an emerging technology) makes the legal implications surrounding Valenty’s story far from certain.

     Whether Valenty’s is liable for copying GW’s miniatures of course depends on the particular facts, which are largely unknown. Was Valenty looking at the GW tank when he designed his computerized models? Or was he casually familiar with the “Warhammer style” based on his brother’s Imperial Guards? Some have argued that GW failed to assert a legal claim when it alleged that the tanks were made in the “Warhammer style.”[13] This sounds like they are suggesting that what Valenty copied was merely an idea and not GW’s expression of an idea.  Nonetheless, there’s a super fine line drawn between idea and expression.

     Valenty seemed to argue that he did not copy GW’s miniatures when he stated that “[t]he models are mine. I created them from scratch . . . I’m 100% positive that if I had the resources and time I could overturn the DMCA.”[14] However, the fact that an artist creates a work from scratch might not be enough. For example, Jane Doe creates a film. John Doe then substantially copies Sally’s copyrighted film when John creates a board game from scratch based on the film. John has created what copyright law calls a derivative work. Unless John has Jane’s permission to create derivative works of Jane’s copyrighted film, then John has infringed upon Jane’s film.[15] So, even though Valenty cooked up his tanks without a recipe, he could be liable if his tanks were substantially copied from GW’s tanks. We just don’t know.

     Maybe Valenty should be given some slack since he spent a week perfecting his tank models using cutting edge technology. Soon, we’ll be able to scan a Warhammer figurine and print out an exact copy, but didn’t Valenty create something totally original when he shifted the tanks from their physical form to computerized 3D models? In other words, shouldn’t Valenty himself be able to copyright his seemingly new and original work made from a totally different process? At least one court would likely “look only at the final product, not the process, and the fact that intensive, skillful, and even creative labor is invested in the process of creating a product does not guarantee its copyrightability.”[16] This is because U.S. copyright law rejects the “sweat of the brow” theory, which rewards authors for their skill and effort, regardless of creativity. But because 3D printing involves unchartered territory, it’s hard to predict where the courts will draw the line.

     Unfortunately, litigation might be the only way to sufficiently flesh out the facts. But if GW is now satisfied since Thingiverse removed Valenty’s Warhammer-style tank, then we may never see this story play out in court.

     For more 3D Print Wars, come back for Episode III, in which we discuss GW’s infamous takedown notice.

     Image courtesy of Wikimedia Commons 



[1] Clive Thompson, 3D printing’s forthcoming legal morass, Wired (May 31, 2012, 09:48:47),  http://www.wired.co.uk/news/archive/2012-05/31/3d-printing-copyright.

[2] Id.

[3] http://www.thingiverse.com/about (Zach Hoeken calls himself a “Dreamer, scientist, hacker, self-replicator” Bre Pettis calls himself a “Hacker, teacher, troublemaker, laser-lover” and states that his “mission in life is to provide infrastructure that gives rise to creativity in human beings”)

[4] Thompson, supra note 23.

[6] Andy, Games Workshop submits DMCA takeown notices to Thingiverse, 3D Printing is the Future (Dec. 16, 2011), http://www.3dfuture.com.au/2011/12/games-workshop-submits-dmca-takedown-notices-to-thingiverse/.

[7]Id.

[8] Wexelbalt, supra note 5.

[9] Thompson, supra note 1. Comment posted by Jake (June 1, 2012).

[10] Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991).

[11] Id. at 349.

[12] Id. at 345.

[13] E.g., Wexelbalt, supra note 5.  Comment posted by Kirk Hausman (June 12, 2012 9:44 a.m.)

[14] Andy, supra note 6.  Comment posted by 3dYeti (Dec. 16, 2011).

[15] Caffey v. Cook, 409 F.Supp. 2d 484, 496 (S.D.N.Y. 2006) (quoting 1 Nimmer on Copyright § 3.01).

[16] Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d 1258, 1268 (10th Cir. 2008) (emphasis in original).

 

 

 

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