This post originally appeared on the Shapeways blog.

This is the fourth in a series of posts about different types of rights that could be involved with models and files here at Shapeways.  Today we’re talking about trademarks.

Without a trademark it can be hard to tell if this ketchup will be tasty or free of poison. Image: flickr user Steven Depolo.

Imagine walking into the dystopian store of your nightmares to buy ketchup.  The store is selling ketchup in three different bottles that look like they come from different places, but none of the bottles have any labels.    You look at the three bottles, unable to figure out which one will taste the way you expect (and also not make you sick).  Finally, motivated by an eerie sense that you are running out of time, you grab a bottle at random and hope for the best.

A few hours later, all of your friends arrive at your BBQ.  If your ketchup choice turns out to be wrong, you can blame the lack of trademarks in your nightmare store.

While both cards include the “Local 44” trademark, only one of them really comes from the bar. Can you spot the counterfeit? Image: Flickr  user Travis Goodspeed.

Trademarks are words, names, and symbols that serve to identify the source of a product.  Fundamentally, trademarks are about consumer protection: when you see ketchup with a trademark on it, you should be confident that the company who owns the trademark stands behind that ketchup.  If someone else is passing off their own ketchup labeled with a brand name that you trust (a behavior known as counterfeiting), you might buy it expecting one thing only to discover later that it is quite another.

Because of this consumer protection role, spotting trademark infringement is a bit different than spotting, say, copyright infringement.  In disputes about copyright infringement, the core question is “did the defendant make a copy?”  In disputes about trademark infringement, the core question is “is the use of the mark likely to cause confusion?”

There are plenty of uses of a trademark that can constitute trademark infringement.  But there are also many ways to use a trademark without permission that are perfectly legal.  The “likelihood of confusion” test is at the core of classifying any given use.  The more likely a use is to suggest that the good is associated with a trademark holder, the more likely it is to be infringement.  Conversely, the less likely a use is to suggest that the good is associated with a trademark holder, the less likely it is to be infringement. While using (or “copying”) the trademark is part of that analysis, it is far from the final question.

Enter ShapeBoard

Preliminary artist’s rendering of ShapeBoard.

In order to illustrate how this would work, imagine that Shapeways has just rolled out a hoverboard that we are calling the ShapeBoard.  (Note that I’m not saying that we are working on a hoverboard.  I’m also not not saying that we are working on a hoverboard.)  Assuming you did not have permission from us, how could you use our ShapeBoard trademark?

Preliminary artist’s rendering of the ShapeBoard logo.  Note that Shapeways could have a trademark on both the word “Shapeboard” and the specific appearance of the world Shapeboard in the logo.

In thinking through these examples of potential uses, it may be helpful to keep this three part test in mind.  This test originally came from a case involving The New Kids on the Block because, well, why not?  Although this is a United States-based test, many other countries treat trademarks similarly.

1. Do you need to use the trademark in order to identify what you are talking about?
2. Are you only using as much of the trademark as is reasonably necessary to identify what you are talking about?
3. Are you avoiding any suggestion that the trademark holder is sponsoring or endorsing what you are doing?

Talking about ShapeBoard.  This might be obvious, so I’ll get it out of the way early.  You don’t need Shapeways’ permission to talk about ShapeBoard.  You can say or write “SO excited about ShapeBoard!” or “My ShapeBoard is coming tomorrow!” (or, I suppose, “Meh, ShapeBoard”) without getting the permission of Shapeways.  This makes common sense and it also makes sense in the context of those three tests.  It would be pretty hard to talk about the ShapeBoard without using the word “ShapeBoard” and you need to use the entire word “ShapeBoard” in order to do so.  Finally, saying that you are excited about ShapeBoard does not imply that you are working with Shapeways or that Shapeways is endorsing you.

Comparing ShapeBoard to things.  You also don’t need Shapeways’ permission to compare ShapeBoard to things.  Let’s say you are coming out with your own hoverboard.  You can say that “YouBoard is 20% cheaper than ShapeBoard” or that “YouBoard comes in 5 fewer colors than ShapeBoard” without infringing on the ShapeBoard trademark.  Again, this makes sense in the context of the test – you are only using ShapeBoard to the extent necessary to make the comparison and nothing you say suggests an association between you and ShapeBoard.

Talking about ShapeBoard compatibility.  Instead of launching a rival hoverboard, you decide to get into the ShapeBoard accessory business (no offense to the YouBoard, but if the ShapeBoard exists it is pretty awesome so it is probably better to hop on the bandwagon).  You roll out a line of 3D printed ShapeBoard fins, ShapeBoard bumpers, and ShapeBoard hover-mechanism-tuners.  What is the best way to talk about them?  Obviously, you are going to need to use the term “ShapeBoard.”  After all, it would be pretty hard to explain to people that you are offering fins for the ShapeBoard without using the term “ShapeBoard.”

But don’t forget about the third part of the test.  You want to avoid suggesting that your fins, bumpers, and hover-mechanism-tuners come from Shapeways because Shapeways is not endorsing them.  That’s where clear terms like “ShapeBoard compatible” or “works with ShapeBoard” can come in.  They avoid creating confusion among customers while still making it clear that your stuff works with ShapeBoard.

Disclaimers.  Disclaimers can also be useful for addressing the third part of the test.  Adding language to the description of your ShapeBoard compatible fins that clearly states that they are not affiliated in any way with ShapeBoard or Shapeways, and that the term ShapeBoard is used for comparison purposes only, can help get you on the right side of that part of the test.  Remember, if you really are using the term ShapeBoard in good faith (as opposed to trying to trick customers into thinking that your fins came from Shapeways), this type of disclaimer should be easy to write.

If you are conscientious, there are many legitimate ways to use trademarks even if you don’t have permission from the trademark owner.  The important thing to remember is to avoid suggesting any sort of association or endorsement from that trademark owner.  That being said, these types of rules tend to be highly fact and context specific.  This blog post is not a substitute for legal advice, and if you have a specific question you should consider consulting an attorney.  If you would like more information about using trademarks, the Digital Media Law Project has a good overview on using the trademarks of others (although it is no longer being updated it provides some great foundational information).  The International Trademark Association also has good information with international examples.

This post originally appeared on the Shapeways blog.

This is the third in a series of posts about different types of rights that could be involved with models and files here at Shapeways.  Today we’re talking about disputes over ownership.

There are two obvious alternative headlines for this blog post: “Someone is using my IP on Shapeways without permission – what should I do?” and “Someone just accused me of using their IP without permission – what should I do?”  The short, and correct, answer to both of these questions is “Find instructions about what to do in ourcontent policy.”  After all, our content policy is the definitive document that explains how we handle all IP-related (that’s intellectual property-related – think copyright, trademark, and patent) takedown notices.  However, sometimes it is helpful to walk through the IP takedown process in a slightly less formal way.  That’s what this blog post is all about.  It will explain all of the steps of our process and, hopefully, give you a better sense of how it all fits together.  Large parts of this process are governed by the “notice and takedown” process created in the United States by the Digital Millennium Copyright Act (often known by its abbreviation the DMCA).

Let’s start with Abbas.

Abbas creates models of mammoths based on field sketches he likes to make while traveling in his time machine.  Here’s one of his sketches that he eventually turned into a 3D model:

You might wonder why there are typed words around his sketches or what impact time travel has on copyright status.  Let’s just agree to put those questions aside for the duration of this blog post.  For the purposes of this post, at the moment you are reading these words Abbas has a valid copyright in his model of a mammoth.

One day Abbas is checking out the great models on Shapeways and discovers Eulice’s shop.

Abbas sees a model of a mammoth that he thinks looks familiar and believes that Eulice is infringing on his rights.  He wants Eulice’s model taken down.

Takedown Notice

Abbas’ first step is the Shapeways content policy.  The content policy first urges Abbas to reach out to Eulice directly to talk about his concern.  This isn’t a legal requirement, but it is often a good idea.  Many disputes of this type are resolved without taking any formal legal steps, something that is often better for both parties.

Abbas’ next step, if he decides not to contact Eulice, Eulice doesn’t respond to his note, or Eulice’s response to his note is inadequate, is to file a formal takedown request.  This takedown request, sometimes also known as a DMCA takedown notice, is an official legal request to take down Eulice’s model on Shapeways.

That has a few implications for Abbas. First, as with any formal legal action, Abbas should be sure that he understands what he asserting in his request.  That may require talking to a lawyer to make sure that he fully understands the elements of copyright infringement.  As detailed on the content policy page, a formal takedown request must include some required elements.  The request must specifically identify what Abbas wants to be taken down.  In this case, that is probably going to be the Shapeways URL for Eulice’s model.  If Abbas’ notice simply says “there is a mammoth somewhere on Shapeways that I believe infringes on my copyright,” the notice will be sent back to him.

The other important element of the takedown notice is a statement by Abbas that he has a good faith believe that Eulice’s model infringes on his right.  He needs to sign this statement and attest, under penalty of perjury, that it is correct.  This requirement is intended to create a cost for sending frivolous or baseless takedown requests that get sent to Shapeways.  Once completed, he sends his notice to service@shapeways.com.

Shapeways Trust and Safety

The first people to see Abbas’ notice are on the Shapeways Trust and Safety (T&S) team.  T&S’s role in this process is defined by the notice and takedown process created by the Digital Millennium Copyright Act (DMCA).  The T&S team has essentially two roles in this process.  The first is to make sure that everyone who submits formal requests complies with the rules.  That means making sure that takedown requests are signed and that they include all of the information needed to identify the allegedly infringing model.  The second is to act as an intermediary, transmitting information between Abbas and Eulice.

It is important to understand what role T&S does not have.  T&S are not copyright judges.  As long as Abbas makes his request correctly – and remember, that includes his promise under penalty of perjury that he has a good faith belief that the person he is accusing of infringement is actually infringing on his rights – T&S does not look into the merits of the accusation. On balance that is a good thing.  Copyright law can be complicated, and it is probably bad policy to deputize every website on the internet as its own tiny copyright court.

Once T&S has confirmed that Abbas’ complaint includes all of the information that Shapeways requires, they take down Eulice’s model.  This is part of the reason that it is so important that Abbas be sure that his takedown request is aimed at the right model – it has swift, significant consequences.  As it takes down the model, T&S tells Eulice that her model was taken down because of a request from Abbas.

Eulice’s Turn

Once Eulice gets word that her model was taken down, she has some decisions to make.  If, upon further reflection, she decides that her model does infringe upon Abbas’ work, she can decide to do nothing.  Her infringing model will stay down unless she takes steps to put it back up.  Eulice not responding to the notice pretty much ends the process.

However, she might decide that Abbas was wrong to take down her model.  There could be a number of reasons for this.  Eulice may be making fair use of Abbas’ model.  Abbas may have misidentified Eulice’s model as infringing.  Eulice may have a license from Abbas.  As was the case for Abbas, it might make sense for Eulice to talk to a lawyer to help her fully understand the merits of Abbas’ claim.

Regardless of the specific reason, Eulice may decide to challenge Abbas’ takedown.  She goes back to the content policy to find out how.

Perhaps not surprisingly, the process is very similar to the one Abbas used to send his original notice.  Eulice needs to file a formal legal request to put her model back up.  It needs to identify what was taken down and swear, under penalty of perjury, that she has a good faith belief that Abbas’ takedown request was improper.  Once she is comfortable with her response (often called a ‘counter notice’), Eulice sends it back to Shapeways.

Back to T&S

T&S does not immediately return Eulice’s model to her shop.  In fact, T&S is required by law to wait for 10-14 days to put the model back up.  That’s because as soon as T&S has verified that Eulice’s response includes all of the required elements, they alert Abbas that Eulice is contesting the takedown request.  Remember, just as with Abbas’ original takedown request, T&S does not evaluate Eulice’s response on the merits of her arguments.  As long as it includes all of the required elements T&S will comply with it.  With that, it is time for Abbas to make some decisions.

Abbas’ Choice

When he investigates Eulice’s response, Abbas may decide that she is right and that his takedown request was improper.  At that point, Abbas can decide to do nothing.  If he does nothing then Eulice’s model goes back up and nothing else really happens.

However, Abbas may decide that his takedown notice was correct and that he really does believe that Eulice is infringing on his rights.  If so, the clock is ticking.  Eulice’s model will go back up on Shapeways in 10-14 days unless he decides to take steps to intervene.  If he wants to keep Eulice’s model off Shapeways, Abbas needs to bring a formal lawsuit against her in a court in the United States.  That lawsuit may include a request that a judge require Shapeways to keep the model down. If Abbas brings the suit and the judge grants his request, he can send the order to Shapeways.  Once received, T&S will keep the model down until the court order expires.  That could mean that Eulice won the suit and gets to keep her model up.  Or that Abbas won the suit and the court order is replaced by a permanent injunction.

The Bigger Picture

Shapeways IP disputes rarely evolve into full blown lawsuits.  As you can see, there are many places where people can decide to resolve their dispute informally or to decide to abandon the dispute entirely.  This is probably a healthy thing – the formal legal system is important, but it isn’t always the best place to resolve every dispute. That being said, it can be good to know that there are formal legal options available when you need them.

If you have made it this far into the post, there are two final things that are worth keeping in mind.  First, you might be wondering what would happen if someone decided to abuse this system and either chronically upload models that infringe on someone else’s IP or chronically submit takedown requests that did not have a firm basis in fact.

In the first case, we do have a repeat infringer policy.  If a user is subject to a significant number of takedown notices (that are not ultimately invalidated), we will kick them off Shapeways.

In the second case, the same law that creates this notice and takedown process also imposes penalties for abusing it (that’s why it is so important that someone sending a takedown notice swear under oath that the facts in the notice are true).    We have the ability to cooperate with anyone who thinks that takedown notices are being used improperly against them.

Second, it is worth remembering the role of Shapeways and the Shapeways T&S team in all of this. As you can see from this post, Shapeways is not in a position to resolve specific disputes about infringement or even to evaluate the claims of either side.  As long as both sides comply with the rules, our job is to assume everyone is telling the truth and comply with their request.  It is the role of courts, not private websites like Shapeways, to decide individual infringement disputes.  That doesn’t mean that we can’t be skeptical of claims being made to us. But if the person making those claims is willing to do so under oath, in most cases we will give them the benefit of the doubt.

Just in case you are curious, all of the images here come from the flickr feeds of the British Library and the Library of Congress.  Specifically, the British Library’s Highlights and Portraits albums and the Library of Congress’ News in the 1910s album.  These albums are created by scanning public domain works in the Libraries’ respective collections and are fantastic resources.  You should do yourself a favor and spend a little time with them.  I mean, look at these 100 year old color photos from the Russian Empire!  No larger political commentary is meant by their use – I have no idea who the subjects of any of them are.  If you do I’d love to know so please let me know in the comments.

This was originally posted on the Shapeways website as part of a series on legal concepts important for 3D designers and 3D printing.

This is the second in a series of posts about different types of rights that may be involved with models and files here at Shapeways.  Today we’re going to go a bit deeper into one aspect of one of those rights: fair use of copyright-protected work.

Before we begin, a quick note.  The posts in this series are written from a U.S. perspective.  Most of them are written in a way that the general concepts will apply in many (if not most) other countries.  That is probably the least true for an issue like fair use. While some other countries have similar concepts such as fair dealing, fair use tends to be a bit U.S. specific.  As is the case for all of the posts in this series, it is always a good idea to talk to a lawyer about your specific case.

Generally speaking, if you want to make a copy of all or part of a work that is protected by copyright you need to get permission from the person who owns that copyright (often referred to as the “rightsholder”).  But that is not always the case.  Sometimes you can make copies without permission because the copies you are making are protected by a concept in U.S. copyright law known as fair use.

Fair use is an important, although slightly complicated, aspect of copyright law.  Without fair use, a rightsholder could prevent a critic from quoting part of a work in a critical review, stop a news report from showing a clip of a controversial video, or interfere with fans reimagining characters from a favorite work of fiction.  Fundamentally, fair use is designed to make sure that copyright does not get in the way of free speech.

Applying that fundamental principle to any specific situation can be a bit complicated.  Fortunately, there are a number of great guides out there to try and help, from the Fair Use App from New Media Rights, to a massive collection of best practice guides from the Center for Media & Social Impact at American University, and Stanford University’s Copyright and Fair Use Center (just to name a few).  All of these resources build on the four elements that courts are supposed to consider in determining if a use is a fair use. These are written into U.S. copyright law.  Remember that these factors are weighed against each other, and that no single factor can determine if fair use applies.

1. The purpose and character of the use, including whether the use in question is commercial in nature or nonprofit and educational;

This element looks at how a work protected by copyright is going to be used by someone else.  Generally speaking, uses that are noncommercial, critical, and/or educational will fare well in this element.  However, there are still plenty of commercial uses of copyright-protected works that can be protected by fair use (watch pretty much any segment on the Daily Show for an example).

2. The nature of the work being copied;

If the first element looks at the copy, this element looks at the work being copied and recognizes that some types of works are more likely to trigger fair use protection.  For example, a speech given by a political candidate is generally riper to be reproduced under the protection of fair use than a commercial television show.  Again, however, that general rule does not mean that commercial television shows are exempt from being remixed under fair use.

3. The amount and substantiality of the portion of the copied work that is used; and

Contrary to what you may have read elsewhere, there is no “rule of thumb” for fair use, where as long as you use below X percent of a work of less than Y seconds of a clip you are protected.  This element looks at the amount of the source work that is used in the context of the new use in question.  It can be thought of as a rule of “take only what you need.”  Sometimes that is only a few words.  Other times it can be that the entire source work is neededto achieve the new use.

4. The impact that the copy has on the potential market value of the copied work.

This final element looks at how the new use impacts the source work economically.  If the new use directly competes with the original work in the marketplace, it may undermine its case for fair use.

When judges are trying to decide if a use is a fair use, they weigh the facts against all of these elements.  Importantly, these principles aren’t a straightforward checklist – sometimes fair use can be found when three of the principles cut against a finding of fair use but the fourth is particularly persuasive, and sometimes one or two of the principles do not even apply to the specific situation.

Where does this leave you?  First and foremost, fair use is real.  Not every use of a work protected by copyright requires permission, and fair use is like a muscle – the more it is used the stronger it gets.  Second, rightsholders – even ones acting in good faith – don’t always consider fair use as thoroughly as they should (or at all).  Don’t assume that just because you receive a copyright takedown notice that the rightsholder who sent that notice considered the fair use aspects of what you are doing.

That being said, fair use can be complicated.  Simply saying that “no infringement is intended” or not being able to get a license from a rightsholder does not give you fair use protection. Neither does simply wanting to use a work.  If you are going to claim fair use, make sure you understand the basics of how it works.  Take a look at some of the guides mentioned above to get a better sense of how the rules apply to situations similar to yours.  The exercise of coming up with answers for each of the four fair use elements can be incredibly helpful in understanding how fair use applies to a given situation.  Consider discussing your specific case with an attorney who can focus on and identify any important details.  This is doubly true if you are planning on asserting fair use in a formal legal context, such as a counternotice to a copyright takedown here at Shapeways.

photo courtesy petful

(This post originally appeared on the Shapeways blog)

A: Copyright law, of course.

There is a new legal decision by the Sixth Circuit Court of Appeals in the United States that brings together cheerleading uniforms and 3D printing.  It isn’t a game changer – the decision doesn’t fundamentally rewrite legal rules – but it does shed some light on what is likely to be one of the thorniest issues around 3D printing and intellectual property law: a copyright concept known as severability.  The question addressed by the court was seemingly straightforward: are the decorations on cheerleading uniforms a critical part of their functionality?  The way the court found an answer to that question will help us understand what types of 3D printed things are – and are not – protected by copyright. 

I clicked on the link but now am thinking I don’t want to read all of this: what’s the short version?

Severability is the test that US courts use to figure out which parts of things that are both functional and decorative can be protected by copyright (if any).  There is now a new test to determine this in part of the United States.  The test itself (arguably the tenth test currently being used) doesn’t bring a lot more clarity to the issue, but is an excuse to walk through how all of this works.  Most of this blog post just explains how the court applied the test in this one case.

Still with me?  Let’s go!

Background Point 1: Useful vs. Creative

As explained in the Introduction to Rights and Protections post, there is something of a divide between objects that are eligible for copyright protection and objects that are eligible for patent protection.  Creative objects can get copyright protection while functional objects can get patent protection.  In theory these two categories are mutually exclusive.  In practice, some objects can be a little bit of both.  Courts use “severability” to try and determine if the mixed elements of a single object can be separated out and protected individually.

Oh, and as a general matter clothing and uniforms are considered a functional object – they keep you warm and not naked.

Background Point 2: Severability

While a lamp is a useful article, the leg sculpture that forms the base of the lamp can be severed (both physically and conceptually) from the lamp’s utilitarian function and given independent copyright protection. Image from flickr user Spider.Dog.

Severability is key to understanding copyright protection in objects that mix functional with non-functional items.  As a general rule, functional items do not get copyright protection. However, if a court can sever non-functional elements from functional elements, those non-functional elements can be protected by copyright.  This severability can be “physical” (because the parts can be physically separated from each other) or “conceptual” (because the parts can be conceived of separately from each other).  All of this stuff is covered in more detail in the What’s the Deal with Copyright and 3D Printing? whitepaper.

Enough – What is This Case About?

Cheerleader uniforms.  A company named Varsity Spirit designs and sells cheerleader uniforms.  Their uniforms include colors, stripes, chevrons, and other patterns.  Star Athletica makes cheerleader uniforms with similar combinations of colors, stripes, chevrons, and other patterns.  Varsity accused Star of copying their uniforms and brought a copyright suit against Star.  Star responded that it could not infringe on Varisty’s copyright because the patterns on the uniform where not eligible for copyright protection.

Essentially, Star said that Varsity’s patterns were functional parts of the cheerleader uniform.  They helped mark the uniform as a cheerleader uniform as opposed to, say, just a pleated skirt and tank top.

That’s what makes this a severability case.  Varsity says that the patterns are severable from the utilitarian uniforms and therefore should be eligible for copyright protection.  Star says that the patterns are a core part of the uniforms which cannot be severed – and therefore cannot be protected by copyright.

How Did the Court Work Through This?

Severability is easy(ish) to explain but hard to apply in specific circumstances.  After noting that there are at least nine (listed on pages 17-19 of the opinion) different tests of severability in use, the court decided to come up with its own 5(ish) part test.

• Part 1: Is the design in question something that could be protected by copyright?

Yes. In this case the court decided that the work Varsity registered with the Copyright Office was a “pictorial, graphic, or sculptural work, ” which is the type of thing protectable by copyright.

• Part 2: Is the design of a useful article?

Again yes.  Uniforms are a useful article. Their use is to “cover the body, wick away moisture, and withstand the rigors of athletic movements.”

• Part 3: What are the useful aspects of the article?  Importantly, “conveying information” doesn’t count as a use.

The court decided that the designs on the uniforms were primary intended to convey to people that it was a cheerleader uniform.  Unfortunately for Star, in this court’s opinion “conveying information” like that doesn’t qualify as a useful purpose.  I think it is fair to say that this is not a universally held opinion among courts.

• Part 4: Can the viewer of the design identify the artistic features separately from the useful features?

The court found that it could.  The designs on the uniforms did nothing to help cover the body, wick away moisture, or withstand the rigors of athletic movement.  As such, they were unrelated to the core functionality of the uniform.  This is where the answer to part 3, and how you define the functional elements of the uniform at the start of the analysis, becomes important.  Once the court decided that helping to identify a uniform as a cheerleader uniform didn’t count as a useful function, it was hard for them to find any other way.

• Part 5: Can the designs exist independently of the useful object?

This question is really the core of the analysis and, truth be told, the first four parts don’t help answer it very well.  The court walked through a bunch of sub-questions to try and answer this part.  Ultimately they decided that the same designs could exist independently of the uniform and could, for example, be transferred onto things like jackets or pants (or a framed wall hanging).

As a result of all of this, the court found that the designs were severable from the uniforms and therefore wereprotectable by copyright.

What Does All of This Have to do with 3D Printing Again?

Although this case was about uniforms, it isn’t hard to imagine applying the same analysis to 3D printed dog cupsor tea light holders.  Understanding if a 3D printed object is protected by copyright becomes an important question if someone is copying it without permission.  If the object is protected by copyright, that copying may be infringement.  If the object isn’t protected by copyright, there may not be very much the designer can do.  When you are thinking about building on some existing 3D model (or someone has built upon or copied your model) it is important to have a sense of how it may and may not be protected by copyright.

And if you think that this all feels a bit too complicated you are not alone.  In a dissent, Justice McKeague reflected upon the multitude of ways that someone could think about severability and declared that “the law in this area is a mess.”  He then went on – with some reason – to call on either the Supreme Court or Congress to straighten all of this out.  While severability remains important, until either the Supreme Court or Congress clarifies some  things, actually applying it is going to remain a challenge.

Super Copyright + Administrative Law Nerd Bonus

The court declined to grant the Copyright Office’s decision to register the works Chevron deference as to whether or not the designs were copyrightable.  That’s one more example of how the Copyright Office isn’t really an administrative agency with actual rulemaking authority.  If this paragraph is gobbledygook to you, you can safely ignore it and go on with your life.

(This post originally appeared on the Shapeways blog)

Shapeways designers create a mindboggling array of objects every day.  This diversity fosters a vibrant Shapeways community and makes Shapeways shops exciting places to explore. It also means that models on Shapeways can potentially involve a number of different types of intellectual property and other rights.

Sometimes this rich diversity of rights can be a bit confusing and overwhelming.  In an attempt to bring a bit of order to the rights chaos, today we’re kicking off a series of blog posts that try to briefly describe a handful of types of rights that might touch upon models on Shapeways.  Today’s post will cover the high level basics.  Future posts – they’ll be coming up every fortnight or so – will dive a bit deeper into issues raised by these rights.  We’ll try to link to all of them from this post in the future so you can find them all in one place.

(If you want a slightly more in depth – but still written for designers who are not lawyers – explanation for how all of these things fit together, you might want to check out these three whitepapers).

((This series is for educational purposes only and is not legal advice. This area of law tends to be maddeningly fact-specific, so if you have a specific question it is always wise to talk to a lawyer who understands your circumstances.))

Copyright

A drawing of a pig dancing with children is protectable by copyright.

If you are familiar with one kind of intellectual property right, it is probably copyright.  Copyright is designed to be an incentive to produce artistic, creative things.  Here on Shapeways that can mean things like sculptures, figurines, and jewelry.  Importantly, copyright generally does not protect functional items like mechanical parts or brackets and connectors (those are the domain of patents, described below).

You do not need to apply for a copyright in order to have copyright protection (although there are advantages to registering – something that you can do here.). As long as the thing you have created is of a type that is eligible for copyright protection, it is protected by copyright from the moment it exists.  Copyright protection will generally last for the life of the author plus 70 years after her death.  Copyright also allows for independent creation – if two people come up with identical models without copying each other, each one gets their own copyright protection for their model.

Copyright mostly governs the making of copies of a protected item (that’s where the “copy” in copyright comes from).  Traditionally this focused mostly on ‘literal’ copying, like making an exact copy of an entire book or origami crane skeleton.  However, copyright also governs the creation of ‘derivative’ works. These aren’t necessarily exactly copies, but rather are copies that are derived from some protected work. A classic example of this is creating a “copy” of a book by turning it into a movie.  There are important exceptions to these general rules (fair use probably being the best known) that we will cover in future blog posts.

Patent

A dynamo is the kind of invention that is protectable by patent.

Patent is designed to be an incentive to produce “functional” innovations.  Contrast this with copyright – those mechanical parts, brackets, and connectors that I said were not eligible for copyright protection are the types of things eligible for patent protection.

Also in contrast with copyright, you do not get a patent automatically just for creating something that is functional and original.  You need to apply for a patent in order to get patent protection.  If you get it, that patent protection generally lasts for 20 years.  Unlike copyright, patent law does not allow for independent creation. That means that once you have a patent, anyone who practices that patent will infringe upon your patent even if they didn’t know about it beforehand.

Generally speaking, someone infringes on your patent by “practicing it” – that is, doing what the patent describes – without your permission.

Trademark

You can trust Aspinall to sell a product that is “absolutely non-poisonous” so look for their trademark on the bottle.

Copyright and patent are both awarded as incentives to create and share innovation.  While trademark is often lumped in with copyright and patent as “intellectual property,” its purpose is quite different.  Trademark is all about consumer protection.  When you see a trademark on a product, that trademark means that the trademark owner stands behind the product.

As a result of this different purpose, trademark rules can feel very different from copyright and patent rules.  In copyright and patent, infringement usually comes in the form of copying or using the protected creation.  In trademark, infringement is usually judged by a “likelihood of confusion” standard: is it likely that a given use of a trademark would confuse a consumer into thinking that the trademark owner is standing behind the use?  Does the use make it seem like the object is from or endorsed by the trademark holder?  If so, the use may be infringing on the trademark.

Right of Publicity

TR might not like it, but as a public, newsworthy figure Puck is not violating his right of publicity even when they use his image to sell magazines.

Right of publicity is also a bit out of the intellectual property mainstream, but it is worth mentioning here.  Right of publicity is all about being able to control how your image is used commercially. In the US it is based in the right of privacy.  Generally speaking, if you are leveraging someone’s identity for commercial gain you may be infringing on their rights of publicity.

There is at least one noteworthy exception to this general rule.  In the United States we don’t want the right of publicity to smother the type of free expression protected by the First Amendment.  As a result, the more you are using someone’s likeness to comment on or criticize them – and this is especially true if that someone is a public figure – the less likely you are to be infringing on their right of publicity.

Just an Introduction

This post is designed to be an introduction to some of these concepts and, as a result, just scratches their surface.  It leaves a lot of things out that may or may not be relevant to a specific case.  Some of those things will be addressed in posts further into this series.

If there are issues that you would like addressed in future posts let me know in the comments or on twitter@MWeinberg2D.  We can’t address specific legal disputes, but we can explain how some of these pieces fit together.