Copyright

November Newsletter: Giving Tuesday--Night Owl Edition

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This Giving Tuesday, December 2, New Media Rights is running a one-day, 24-hour fundraiser where your donations will be matched dollar for dollar up to $10,000. So mark your calendar now and please pledge to give now by sending the dollar amount you want to pledge support@newmediarights.org.

Without your continued support, we can't do work like like helping local San Diego filmmaker Bill Perrine with his latest documentary film It’s Gonna Blow: San Diego's Music Underground 1986-1996.
 




Your donations help ensure we have the resources to reach a wide variety of clients to provide critical legal services, like the services we provided to Bill.
 
This year, we have a unique opportunity to double your impact to New Media Rights on Giving Tuesday. But there’s a catch. We’ll be competing will all of the other wonderful programs at California Western School of Law for that $10,000 match on a first come, first matched basis.
 
That means in order to maximize your impact we are asking
donors to give at 12:00am PST on December 2nd. As an added bonus, the first person to make a donation on Giving Tuesday at the Open Internet Defender Level or above will get a T-shirt from Bill Perrine’s latest documentary, It’s Gonna Blow.

 
Steps to help us rock Giving Tuesday:
Step 1:Pledge to give now by sending the dollar amount you want to pledge support@newmediarights.org.
Step 2 Click here to add a reminder to your calendar to give to New Media Rights on Giving Tuesday or join the facebook event!

Step 3: Don't forget to give on Giving Tuesday!

New Media Rights joins Electronic Frontier Foundation in urging court to reaffirm the denial of a dangerous preliminary injunction in the case of Garcia v Google

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New Media Rights has joined the Electronic Frontier Foundation, Public Knowledge, and others in filing an Amicus Brief urging the court to reaffirm the district court’s denial of a dangerous and over reaching injunction that forced Google to take down the controversial "Innocence of Muslims" video while a copyright lawsuit is pending.

Most of our work at New Media Rights is preventative and transactional, focused on helping people avoid legal problems and lengthy court battles before they begin.  In this case, however, we've joined in filing this Amicus Brief because the recent Garcia v Google decision, if not reconsidered, will have negative consequences for free speech that will directly affect the creators and innovators we assist.

Put a mugshot on it? Things to think about before using mugshots on commercial products.

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At New Media Rights we’ve received a surprising amount of contact forms related to using mugshots on commercially sold items. Although we cover whether mugshots are in the public domain here, this blog post tailors that information a bit more specifically for people who may want to put a mug shot on something and sell it.

A word of caution upfront, putting a mugshot on any commercially sold items raises some serious legal questions. If you’re serious about starting a business like this you should consult with an attorney since this blog only raises some of the issues you may need to look out for and is NOT legal advice.
 

Copyright & Fair Use Workshop for Filmmakers and Video Creators - A Doculink sponsored event in Los Angeles Saturday November 8

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New Media Rights' Executive Director Art Neill is speaking in the Los Angeles area Saturday November 8, 2014 about Copyright, Fair Use, Music Licensing, and Creative Commons.  If you're in the LA area come on out and say hello!  The event is sponsored by Doculink and the Glendale Library, Arts and Culture Department.

Click for more details about the event!

NMR to speak on fair use & copyright law at the Alliance for Community Media Western Region Conference, October 23 in Ventura, CA

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New Media Rights Staff Attorney Teri Karobonik will be speaking on a panel at the Alliance for Community Media Western Region Conference on October 23, 2014 in Ventura, CA

The topic of the panel will be "Intellectual Property, Copyrights, and Fair Use in Media"

Technology has made it increasingly challenging to navigate the world of intellectual property, particularly in media and arts. This panel will address common questions journalists and creators face such as:

  •  What kind of rights do you need to secure?
  • What is Fair Use and can anyone explain whether it applies? 
  • How do you navigate the legal issues inside of platforms like YouTube? 
  • Where can rights be obtain if needed?
  • What are a producer’s liabilities?
  • Can local bands play cover tunes?
  • Can you fight a take-down notice?
  • How much trouble can our organization be in? 

The panel will be an opportunity to give positive support to journalists and artists, showing them the ways the law can actually empower their creativity, how to avoid legal disputes in the first place, and how to move forward if you do face legal threats.

September Newsletter: Standing up for the Open Internet at the FCC!

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We want to thank all of our supporters who made our #Oneof1000 celebration a success this summer.  It was nice to celebrate all we’ve accomplished as a community in person and online, and we hope to enjoy your company for some delicious tacos again soon!

 

Despite taking a moment to celebrate with clients and supporters like the San Diego based nonprofit Green Neuroscience Lab (pictured above left with their newest scientist!), our team has been standing up for the Open Internet at the FCC; writing to the President about the importance of copyright reform and an Open Internet to 21st Century innovation; appearing on This Week in Law; releasing new educational guides (here, here, and here); delivering educational workshops, and answering your legal questions.  Here’s are the highlights of what we’ve been up to!

Letter to the President's Office of Science of Technology: Net Neutrality and Copyright reform are key to 21st Century innovation

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New Media Rights sent this letter to the President of the United States' Office of Science and Technology Policy in response to the White House's recent call for comments regarding updating the Strategy for American Innovation. We focus our comment on the importance of 1) protecting an open Internet through reclassification of broadband under Title II, and 2) copyright law reform for the 21st Century.

 

3D Printing and repairing products

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Some companies have already expressed concern that 3D printing will allow consumers to repair so much of the product with at-home printed pieces, that the consumer is actually replacing the whole product for free. Unfortunately, the difference between making major repairs and reproducing the product is not clear-cut.

Patent: It is easy to imagine buying a product, scanning all its individual unpatented parts, and then using a 3D printer to print out any parts needed to repair a product at home. Not only would this be convenient for the consumer, but it would also prolong the life of the product.  Keep in mind though, that what is and what isn’t patented isn’t intuitive. Some parts that you might assume are not subject to patent protection may actually be patented.

However, many useful objects do have patent protection. Under patent law, the creator has the exclusive right to reproduce a product. However, the consumer is generally allowed to make repairs to their product but they are not allowed to recreate the patented object. The questions remains, “at what point does a single major repair or cumulative repairs equate to reproducing the product?” Unfortunately, the answer for the moment is unclear.

Copyright: If the product were copyrighted, reproducing it would be a copyright violation. However, making repairs to a copy you obtained lawfully is not. Let’s say a person purchased an art piece made of various colored sugar cubes that combined to create an image of a man’s face. Individually, the sugar cubes are not copyrighted. If a dog eats some, but not all of the sugar cubes, how many could be replaced before the owner has effectively reproduced the artist’s work without permission? The answer is unfortunately unclear.

Trademark: So long as consumers are never exposed to a reproduction of a trademark, a trademark can be copied. For example, if a person broke the lid on a standard thermos that has a Starbucks logo on it. They could replace the lid and the whole logo, so long as the lid is kept strictly for personal use.

If you have any other questions regarding 3D printing and the law please don’t hesitate to contact New Media Rights via our contact form.

Legal issues that arise from creating a 3D file using only a computer program

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Do rights exist in a CAD or STL file made using a computer program?

Copyright: Maybe. Copyright protects a work if it is an original creation that is fixed in some tangible form. Computer files are considered tangible under copyright law, so that’s one requirement checked off. But what counts as an original creation?

  • Creating a file of a nail, and only the nail would not create a copyrightable work because nails are useful, unoriginal, and not copyrightable.
  • Designing an object in a CAD file that is entirely original (remember, it doesn’t necessarily have to be unique just original to you) would create a copyrightable work.
  • Designing a file that contains an original object design, plus some separate unoriginal design, then only the parts of the file with the original design would be subject to copyright. However unlike a scanned file, a CAD file would likely be a derivative work, that is something based on a creative work that puts that creative work into a new format (for example a movie based on video game). The rest of the file would not be subject to copyright. For example, if someone designed a CAD file containing an artistic bust of themselves, plus a run-of-the-mill box for it to sit upon. They own the file to the extent it relates to the bust, but they do not own the part of the file that relates to the box design.

Patent: Simply creating a file of a patented object would not be an infringement of the underlying patent. However, sharing that file or using it print out the patented object would.  Keep in mind; this does not exclude the creator from having a copyright in the file.

Trademark: The only way a creator of a 3D-printable file will have rights in the file under trademark law is if the creator already has a trademark that happens to be included in the file. This does not exclude the creator from having a patent or copyright in the file.

For more information on the legalities of using trademarks in 3D printed works legally you can check out our “3D Printing trademark basics."

If you are including a trademark you don’t own and don’t have permission to use, and are going to share it with the public, you probably want to check with an attorney about whether or not your use of the trademark is permitted.  This is the type of issue New Media Rights may be able to assist with, so please use our contact form if you’d like to request assistance.

So if a CAD or STL file is protected by copyright law… what exactly does that mean?

Copyright law protects the creator’s right to copy, modify, distribute, publicly display, publicly perform, and create derivatives of the original work. Copyright infringement occurs when a person copies, modifies, distributes, publicly displays, publicly performs, or create derivatives of the original work without permission. Below we explain what each of these rights is and what infringement of those rights might look like in the 3D printing space. That said, there are some ways to legally reuse another’s copyrighted work , including using works in fair use, which you can read more about on our 3D printing copyright basics page.

Also as a general note, these descriptions only address files that are copyrightable. Files of useful objects, as explained above, are for the most part not subject to copyright so they will not be discussed in this section.


Copying: Making a copy of a 3D-printable file you don’t have the copyright to violates the creator’s copyright. However, copying useful elements of those same files would not violate copyright law.

Let’s use the standard bed frame with an artistic headboard example again. A person could copy the entire CAD file if given permission to do so by the copyright owner (i.e. the person who created the headboard). This would not violate copyright law. Please note that because of the way computers work, “cutting and pasting” is actually considered making a copy.

Distributing: Distribution of a copyrighted file occurs when it transmitting it to a third party (i.e. emailing a file to someone or sharing it via a thumb drive.) This type of digital distribution by its very nature also results in making a copy of the file.’ Thus sharing a copyright protected CAD file via a thumb drive with a friend, without permission from the files owner would be considered copyright infringement.

Modifying / Creating Derivatives: Making a modification to an original copyrighted file creates a derivative work. Thus modifying a copyrighted CAD file without permission would be considered copyright infringement in many cases.

However, not all modifications result in a derivative work. Copying and modifying the uncopyrightable useful elements from the original file would not create a derivative work. Let’s use the file of a standard bed frame with an artistic headboard again. You could copy the standard bed frame into your own file, but alter the dimensions to lengthen the bed frame to fit a taller person. This new file does rely on the original file, but it is not a derivative because the bed frame design is not copyrightable on its own.

Publicly Displaying: In theory, a CAD file could be publicly displayed. There is no set number of people that need to be exposed to the file for it to count as “public”; though it certainly needs to be displayed to more than one person and beyond a group of friends and family. For example, let’s say there was an art exhibit that consisted of nothing more than several big screens showing CAD files of creative designs with no additional commentary. This would be a public display of a CAD file. Without getting permission from the copyright holder of the files creator, this art exhibit would be considered copyright infringement.

If someone prints a 3D-printable file (assuming they didn’t create the CAD file), do they own any the rights in the printed object?

It depends. Simply printing a 3D-printable file adds nothing to the file or object, thus 3D printing an object won’t create any new rights under copyright, patent or trademark law.

That said there are some limitations on what a person can do with the object. A few helpful tips to remember:

  • If the file wasn’t purchased outright and only a license to use the file was purchased (much like a song on iTunes) the terms of the contract will govern.
  • If the file was under a creative commons or other open license. Then the terms of the creative commons license or other open license will govern. The key thing to watch out for here is if the file was licensed under a creative commons non-commercial license. If this is the case, selling items printed using the file is not allowed.
  • If the item being printed is a functional object, like a spoon, without any creative elements the person printing the object would own the object. With the caveat that if the file infringed another person’s patent, you might own your copy but that copy would violate the patent owner’s patent.

If you have any other questions regarding 3D printing and the law please don’t hesitate to contact New Media Rights via our contact form.

Legal issues that arise from creating a 3D file by scanning an object

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If someone scans an existing object that they didn’t create, do they get a copyright in the file?

No, not from just scanning it.  Copyright protection is not granted for copies of creative works made by someone other than the original works copyright owner, even if those copies took time and skill to produce.  Copyright law only protects original creative works.   This is also true for 2D scanning in the real world. If a person scans a page of a book that doesn’t mean they own the copyright to that page of text.

The same is true for objects that have patented and trademarked elements. Scanning the patented or trademarked objects does not grant the person doing the scanning a patent or trademark rights in the file.

If the creator of an object scans the object they create, would they also own the copyright on the file?

Maybe. It really depends on whether the object they created contains protectable creative expression (protected) or simply functional and useful (not protected).

For objects that contain creative expression (sculptures, artistic engravings, action figures etc) the scan is a copy of the work. One of the rights granted to copyright holders is the exclusive right to copy the work. Although it’s unclear whether this scan would be separately copyrightable is an open question. On one hand scans of copyrighted works that incorporate pictures, written description or stories within the file may be separately copyrightable derivative works (that is a work based on another work). But that copyright would only cover the new additions to the work beyond the scan. However, if the file really is just a scan it’s unlikely to qualify as a derivative work because it really is only a copy of the work.

If a creator scans a useful object like a simple chair, then even if they created the chair they still wouldn’t have a copyright in the file because they are scanning and creating a copy of something that isn’t subject to copyright. In addition the file itself wouldn’t be subject to copyright because it is nothing more than a list of instructions for creating a useful object.

If the object is subject to a patent or trademark, merely scanning the object and creating a file will not create any additional ownership right beyond the pre-existing patent or trademark and copyright, if applicable.

When might scanning an object infringe another persons copyright, patent or trademark?

Copyright: If the entire object to be scanned is copyrighted, then scanning the object and creating a file without permission is a violation of the object creator’s copyright. For example, scanning a sculpture currently protected by copyright law and creating a CAD file based on that would violate the sculptor’s rights under copyright law, which allows them the exclusive right to make copies of their sculpture. Keep in mind that some sculptures may be in the public domain, especially sculptures created before 1923. This helpful table can also be used to help figure out if a sculpture is in the public domain.

If only some of the object to be scanned is copyrightable and the rest is useful, then scanning and creating a file based on the creative and non-useful part of the object without permission violates the object creator’s copyright. However, if you only scan the purely useful parts of the object and create a file based on you scan, there is no copyright infringement. For example, let’s assume the object is a standard bed frame with a headboard in the shape of a roaring lion.  Scanning the frame would not infringe the copyright owners copyright because the frame is useful and not subject to copyright law at all. However, scanning the decorative roaring lion part of the headboard would be copyright infringement because the roaring lion can be separated from the bed frame and stand alone as its own piece of art.

Patent: If the entire object to be scanned is patented simply scanning the object and making a CAD file without permission wouldn’t violate the patent. However, sharing that file or using it to print the patented object would.

If only some of the object is patented, again scanning the patented piece(s) would not by itself be considered patent infringement. However, sharing that file or using it to print the patented object would.

Keep in mind that there are “combination patents” which are made up of several unpatented pieces, but when put together create a patented combination. If you’re interested in scanning useful objects that may be patented, it might be a good idea to talk to a patent attorney.

Trademark: Because trademark law is intended to protect the public from confusion about product origin, trademark law simply doesn’t come into play when items are scanned for purely personal use. A further step – distribution to the public – is required for violation of the trademark. See “3D printing trademark basics.”

If you have any other questions regarding 3D printing and the law please don’t hesitate to contact New Media Rights via our contact form.
 

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