Toe Stepping: Thingiverse and IP law

Recently, there have been some discussion of “derivative works” questions on the Thingiverse Google group. Specifically, makers have been wondering if they might get into trouble for uploading designs that were based on real-world objects or logos. This is an interesting question, and just as when Xerox copying machines first made “copying” something that could be done quickly and cheaply, the answer is complicated, and will probably get more so, as companies move to strengthen the laws that exist, or introduce new forms of protection. So, brave makers, the best we can do is know how things stand.

First, keep in mind, I am a designer and blogger, not a lawyer, so though I have some experience with the legal devices discussed below, none of this should constitute legal counsel. More importantly, because of my lack of expertise, some of this may only be half right, so if any of you know better, please chime in in the comments — I’ve got thick skin.

To begin, we should establish what the “things” on Thingiverse are. They are 1) digital files that can be read by machine and translated into 2) physical artifacts. Each of these pieces might infringe on someone’s intellectual property(IP). What is this IP, you say? Good question. IP is information (recipes, descriptions, shapes, words, even sets of colors) that is protected by secrecy or by legal device so that a company can use it to competitive advantage in the marketplace. Secret IP is called a trade secret, and it is actually protected by law — if you stole Pimms’s recipe, then the company who could establish that they had taken measures to keep it secret would be entitled to damages as if you had actually stolen a physical object. I’m going to assume that no one is stealing .stl files and posting them to Thingiverse…

Leaving secrets aside, the other, legally protected IP can fall under the jurisdiction of lots of different legal devices. The list below should give a little overview. Remember, this is only a rough description of each category of protection, so don’t go trying to use this as a guide for reverse engineering:

Copyright: This is the legal protection that we all know about, especially recently, especially because of music. Copyright was originally intended to be an incentive to publishers of copyable works (prints, castings, written music) to allow them a monopoly for long enough to compensate the cost of producing the work. As laws tend to do, this simple idea grew more complex, as more technologies for copying were developed. In its current incarnation, US copyright law protects a greater variety of artifacts for a greater duration of time than at any other time in US history. An amazing discussion of the ins and outs of copyright can be found in Cory Doctorow’s Content essay collection, available CC licensed at his website.  The US copyright office also produces a PDF pamphlet to explain in more detail.

Thingiverse files might violate copyright in two ways. First, the file itself could be copyrighted by someone who did not give permission for it to be on Thingiverse. This is pretty unlikely, since there is still a limited market for 3D files online, but, it’s actually probably the most likely of all the below possibilities. The second way that copyright could be violated would be via the sculpture clause of the law. Copyright protects sculptures, just as it does many other artistic works (including boat hulls!!). The catch is, it doesn’t protect any functional properties (just shape), and it must be an exact copy (so scaled versions, versions in different materials, versions with slightly different shapes wouldn’t be covered). So, while you might be able to infringe the sculptural copyright of another makerbot operator (since the material and shape could be identical), they probably wouldn’t put that file onto thingiverse.

Trademark: This legal protection is another one you may have heard of. A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others. Usually, it is a logo or a catchphrase, and by law, it must be identified by a small ™ for an unregistered trademark or (R) for a registered one. It is theoretically possible for a Thingiverse file to contain a design which would infringe on a trademark, but in order to cause the maker much trouble, the design would have to cause the company holding the rights to the mark some real damage, either to their reputation, or through lost sales. The likelihood of this happening is still pretty slim, but be on the lookout for those little ™ and (R) to be on the safe side.

Trade Dress: This legal protection applies to the overall look of a product, rather than a specific aspect. For example, Fluke multimeter products are distinguished by a yellow outer region with a gray core. No other multimeter company selling in the US can use this color scheme on a similar product. However, competing products do legally use a gray outer band around a yellow core, and non-competing products like mp3 players use the same color scheme without legal issue. Trade dress must be earned by the seeking company by proving that their color, formal scheme, or other visual language of the product uniquely identifies their brand. Additionally, the protected scheme must not be functional in any way. Because of the limitations of Thingiverse object production, it’s unlikely that any object is capable of violating trade dress, but again it is an important thing to know about as fabbers get more sophisticated.

Design Patent: Where a sculptural copyright protects an artifact with no functional purpose (like a statue), a Design patent protects the ornamental aspects of a functional object (such as a Coca Cola bottle). Design patents are a real possibility for infringement by a Thingiverse model, since the design does not include the material, only the form and ornamentation. So, technically, creating a bottle based on a patent like this one for Gatorade from 2000 would technically be infringing. All of these forms of protection apply regardless of whether the copying was with intention of selling the copy. So, if you are looking to make a design which is similar to an existing design, especially if it is manufactured by a major corporation, it would be wise to do a quick patent search, either on USPTO.GOV or google. Who knows, you might save your butt, and find something better in the process.

Utility Patents: We all know about these as well. The utility patent is the type of protection that people mean when they say “I’m going to patent that”. It only covers functional aspects of a design, formulation, method, or procedure. So, while you might change the form of the design, you could still infringe on the patent. Generally, Thingiverse objects aren’t very functional on their own, but depending on whether the scientists who came up with it patented it or not, this might be the biggest hurdle to Bre’s dream of his very own Gomboc.

So, there are a number of ways that an intrepid maker might get tripped up, but if you notice, none of them would be real problems for the original post’s question, which concerned Star Trek com badges — as long as the film prop wasn’t covered by a design patent still in effect, then it should be fine. As should the various movie-prop bits which are already on the site. As with any frontier, just try to be careful, and remember, at some point, things will get different, fast, so be ready to circle the wagons if things start to get interesting. Safe making y’all.