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A Controversy in 3D

FILE - In this Feb. 1, 2015, file photo, singer Katy Perry performs during halftime of the NFL Super Bowl XLIX football game in Glendale, Ariz. The dancing sharks that stole some of the spotlight during Perry's Super Bowl halftime show have taken a bite out of an artist's bid to sell small figurines of them. (AP Photo/David J. Phillip, File)
Katy Perry's shark dancer became the focus of a 3D-printing legal dispute.
  • Why it matters

    Why it matters

    Germany’s annual sales related to 3D printing will increase by 15 percent to a total of around €35 billion ($38.8 billion) by 2020, the economics ministry estimates.

  • Facts

    Facts

    • 3D printing can be used to make virtually anything, from prosthetics to toys.
    • No court verdicts have yet been issued in Germany in connection with disputes arising from 3D printing.
    • German lawmakers should consider the various issues and decide on ways to issue legal clarity about 3D printing, one expert says.
  • Audio

    Audio

  • Pdf

Singer Katy Perry’s performance at the Super Bowl in America a year ago had a legal repercussion. The singer appeared onstage with two dancers in shark costumes, and the one on the left hopped about somewhat clumsily. “Left Shark,” as the dancer was subsequently known on the Internet, became famous overnight.

An entrepreneur wanted to make money out of that notoriety and decided to sell models of the shark on the 3D-printing platform Shapeways. Soon thereafter, he received a letter from Ms. Perry’s lawyers: They sent a cease-and-desist order, asserting copyright infringement.

It was one of the first times an act arising from use of a 3D printer led to legal proceedings. In Germany, no verdicts have yet been issued in connection with the technology. But the more it is used, the more legal disputes can be expected.

“A technology has been created that is easy to use. But the legal consequences of its use are extremely complex. ”

Martin Soppe, Legal Expert, Osborne Clarke law office

The economics ministry in Berlin expects Germany’s annual sales in the 3D area to increase by 15 percent a year to a total of around €35 billion ($38.8 billion) by 2020.

“A technology has been created that is easy to use. But the legal consequences of its use are extremely complex,” said Martin Soppe of the Osborne Clarke law office. He is an expert in copyright and license law and is among the few people who have given much thought to the legal limits of 3D printing in Germany.

3D printing machines create objects from computer designs by adding layer upon layer of material through jets or lasers or other systems.

Numerous companies in medical technology and the automotive industry, for example, are using the process for production. The legal situation becomes complicated when printing patterns can be downloaded on online exchange websites or objects can be recorded by a 3D scanner for “reprinting.” The manufacturers of name-brand goods, in particular, fear unauthorized dissemination of their products.

“It’s subject to rules from copyright and design law, patent and trademark law,” Mr. Soppe said. “But these are not consistent with each other.”

So what is permitted as an exception in copyright law might very well be prohibited by patent law.

“The legislators should consider standardizing the rules, so that the person doing the printing doesn’t get tangled in the thicket of regulations,” he said.

These rules are usually about commercial use.

“Whatever clearly lies outside the realm of private use requires a license,” Mr. Soppe said.

This means, for example, that it would not be permissible to reprint a Lego figure, for example, and offer it for sale on eBay. But it would be allowable to create the toy for one’s own children. There is scarcely any difference to the 1970s, when audio cassettes were widely copied and traded by schoolchildren and others.

But when a retail chain sets up a 3D printer for its customers, it could be considered to be “trade through commercial transaction.” If objects protected as three-dimensional items are reproduced, then the retailers would be culpable as accomplices. Problems also arise when reprints are utilized within a company. Here trademark violations could also arise.

Also, when an entrepreneur uses a 3D printer to make a mud guard for a older car, for example, then the person must apply for permission to produce the replacement part. Otherwise, the person can be held liable.

“There is not yet a widespread awareness that there are legal limits with regard to 3D printing,” said Mr. Soppe, adding he expects to see more such legal disputes in the future.

With regard to Ms. Perry, the applicable patent and trademark office ultimately decided that “Left Shark” could not be considered a trademark of the superstar. What’s more, the 3D-derived model didn’t violate any copyright laws because it diverged sufficiently from the original design.

 

Heike Anger covers economics and politics for Handelsblatt. To contact the author: anger@handelsblatt.com

 

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