111

CAD's Parallel to Technical Drawings: Copyright in

the Fabricated World

Nathan Reitinger*

Contents

Introduction 112

I. Fabrication 115
A. Everything Starts with an Idea . . . . . . . . . . . . . . . . . . . . . . . . 117
1. Teakettles ....... ................................ 117
2. The Penrose Triangle . . . . ..................... 120

II. Copyright 121

A. Copyrightability . . . . . . 121
1. Original Authorship..................... . . . . .. 122
2. Fixed in a Tangible Medium............... . . . . . .. 124
B. Copyright's Scope. ......................... . . . . .. 129
1. The Useful Articles Doctrine............... . . . . .. 129
2. Separability......................... . . . . .. 130

III. CAD's Parallel 131

A. Applying Copyright to 3D Printed Objects: Easily Difficult-Separability 132
B. Applying Copyright to CAD Files: A Novel Approach-Technical Draw-
ings. .............................. . ... . . . . .. 133
1. Copyrightability: Overcoming Originality....... . . . . .. 134
2. Copyrightability: The "Fixed" Requirement...... . . . . .. 135
C. Why is Meshwerks Different? . . . . ..................... 141

Conclusion 143
*J.D. 2015, Michigan State University College of Law; B.A. 2010, University of Colorado, Boulder. The author would
like to thank Professor Sean Pager for his support and for sharing his wealth of knowledge on copyright law. Most impor-
tantly, the author thanks his wife for her patience and encouragement.

Electronic copy available at: http://ssrn.com/abstract=2738547

112 Copyright in the Fabricated World JPTOS Notes

Introduction use of a 3D printer in this way is what

led the London-based Victoria and Al-
bert museum to acquire a prototype of the
Sitting inside a windowless room with weapon in late 2013.5 The museum be-
nothing but a computer, the Internet, and lieves that the weapon is a first in the com-
a 3D printer, Cody Wilson created the first ing industrial revolution. 6
3D printed weapon-a pistol named the Indeed, popularity of 3D printers is
Liberator.' The pistol is fully operational, rising.7 For instance, the 2007 start-
fires like any other gun, and costs next up Shapeways,8 which allows users to
to nothing to make. 2 The file used to upload, buy, and create 3D objects, hit
print the Liberator is freely available on- the one-million-items-sold mark in June
line in the form of a Computer Aided De- 2012.9 The consumer-grade, 3D printer
sign ("CAD") file.3 Once the file is down- "The MakerBot Replicator" has been sold
loaded, a user with even minimal techni- to over 13,000 customers since August
cal skills can manipulate the file or print 2012.10 And the CAD file that the Vic-
the design as-is with a 3D printer.4 The toria and Albert museum purchased for
'Cyrus Farivar, World's First 3D Printed Handgun Now an Objet D'art in London, ARS TECHNICA (Sept. 16,
2013), http:/ /arstechnica.com/business/2013/09/worlds-first-3d-printed-handgun-now-an-objet-dart-in-london/. See
also Andy Greenberg, State Department Demands Takedown of 3D-Printable Gun Files for Possible Export Control Vio-
lations, FORBES (May 9, 2013, 2:36 PM), http://www.forbes.com/sites/andygreenberg/2013/05/09/state-department-
demands-takedown-of-3d-printable-gun-for-possible-export-control-violation/; Jacob Silverman, A Gun, a Printer, an Ide-
ology, NEW YORKER (May 7, 2013), http://www.newyorker.com/online/blogs/elements/2013/05/3d-printed-gun-cody-
wilson-defense-distributed.html.
2
See Silverman, supra note 1; B.T. Wittbrodt et al., Life-Cycle Economic Analysis of Distributed Manufacturing With Open-
Source 3-D Printers,23 MECHATRONICS 713, 713, 720 (2013) (explaining the cost saving attributes of 3D printing).
3
PIRATE BAY, http://thepiratebayse (follow "Browse Torrents" hyperlink; then follow "Physibles" listed under "Other"
category). See also Peter Hanna, The Next Napster? Copyright Questions as 3D Printing Comes of Age, ARS TECHNICA
(Apr. 6, 2011), http://arstechnica.com/tech-policy/2011/04/the-next-napster-copyright-questions-as-3d-printing-comes-
of-age/; CHRIS ANDERSON, MAKERS: THE NEW INDUSTRIAL REVOLUTION 13-16 (2012) (discussing the revolution of the
digitization of things).
4
BRIAN EVANS, PRACTICAL 3D PRINTERS: THE SCIENCE AND ART OF 3D PRINTING, at xxii (2012). See Lisa Harouni, A
Primeron 3D Printing,TED (Nov. 2011), http://www.ted.com/talks/lisaharouni-a-primer_on_3dprinting.html; Michael
Eisenberg, 3D Printingfor Children: What to Build Next?, 1 INT'L J. CHILD-COMPUTER INTERACTION 7,8 (2013).
5
Felicia R. Lee, 3-D Printed Gun Goes on Display at London Museum, NY TIMES ARTS BEAT (Sept. 16, 2013, 1:03 PM),
http://artsbeat.blogs.nytimes.com/2013/09/16/3-d-printed-gun-goes-on-display-at-london-museum/?src=twrhp& r=0.
6
1d. See also Nick Bilton, Disruptions: With a 3-D Printer,Building a Gun with the Push of a Button, NY TIMES, Oct. 8, 2012,
at B1 ("It won't be long before a felon, unable to buy a gun legally, can print one at home."); Deven R. Desai & Gerard N.
Magliocca, Patents, Meet Napster: 3D Printingand the Digitization of Things, 102 GEO. L.J. 1691, 1691-94 (2014) ("Copyright
was the canary in the coalmine. Once music, film, and books were digitized, those industries were transformed. Production
costs fell. Distribution became fast, cheap, and on-demand. Many new players entered the market.... In short, digitization
has reached the rest of the economy-the economy of things.").
7
See M. Corey Goldman, You Could Literally Make Your Own Candy: Why 3D PrintersAren't Justfor Medics and Manufactur-
ers Anymore, FIN. POST (May 20, 2014, 8:00 AM), http://business.financialpost.com/2014/05/20/3d-printers-newfound-
appeal-to-everyday-consumers/?federated=1 (discussing why popularity of 3D printers has rapidly grown in the past
few years); Julie Ahrens, 3D Printing and Copyright, 17 COPYRIGHT & NEW MEDIA L. NEWSL. 3, 3 (2013); Daniel Brean,
Note, Asserting Patents to Combat Infringement via 3D printing: It's No "Use," 23 FORDHAM INTELL. PROP. MEDIA & ENT.
L.J. 771, 773-74 (2013); Davis Doherty, Note, Downloading Infringement: Patent Law as a Roadblock to the 3D Printing Rev-
olution, 26 HARV. J.L. & TECH. 353, 354-55 (2012); Kelsey B. Wilbanks, Comment, The Challenges of 3D Printing to the
Repair-ReconstructionDoctrine in Patent Law, 20 GEO. MASON L. REV. 1147, 1147-48 (2013).
8Carine, Funding the Rise of Creative Commerce, SHAPEWAYS BLOG (June 19, 2012),
http://www.shapeways.com/blog/archives/1442-Funding-the-Rise-of-Creative-Comrmerce.html; see Pete,
Advancing the Mission of Shapeways: 3D Printing for Everyone, SHAPEWAYS BLDG (Apr. 23, 2013),
http://www.shapeways.com/blog/archives/2029-Advancing-the-Mission-of-Shapeways-3D-Printing-for-Everyone.html.
9
Davis Doherty, Note, Downloading Infringement: Patent LawAs a Roadblock to the 3D PrintingRevolution, 26 HARV. J.L.
&

TECH. 353,354 (2012).

1
old.

Electronic copy available at: http://ssrn.com/abstract=2738547

VOL 97, NO 1 Reitinger 113

over $10,000 has been downloaded over process.

100,000 times."
In answering this question in the af-
While the prospect of 3D printing firmative, the Comment shows that 3D
may be alluring, with each new, disrup- printing is not as new as one might
tive technology inevitably come intellec- think.' 6 In fact, it has already been used
tual property battles sparked by incum- for many years in traditional manufac-
bent rights holders attempting to regain turing processes.' 7 For example, engi-
control of a market they are in danger neers use CAD software to design digi-
of no longer dominating.' 2 Intellectual tal blueprints for physical objects.' 8 An
property owners and their representatives engineer will take a computer markup
need to be fully aware of the develop- of an object and then manipulate the
ments in 3D printing as well as its po- design until the specifications are per-
tential impact for the intellectual property fect, using a 3D printer to quickly see
world.13 To aid in this understanding,1 4 the end result.' 9 Once the product is
this Comment answers one basic ques- ready, the design is put into the tradi-
tion underlying a particular facet of the tional "subtractive" manufacturing pro-
3D printing-intellectual property synthe- cess and replicated hundreds of times.20
sis: whether an original and fixed artis- Subtractive manufacturing, as compared
tic expression may exist somewhere in the to additive manufacturing (3D printing),
e Lee, supra note 5; Andy Greenberg, 3D-Printed Gun's Blueprints Downloaded 100,000 Times in Two Days (With Sate Help
from KimDotcom), FORBES (May 8,2013,5:t2 PM), http:/h/www.orbes.com/sites/andygreenberg/2013/05/08/3d-printed-
guns-blueprints-downloaded-100000-times-in-two-days-with-some-help-from-kim-dotcom/.
2
" HOD LIPSON & MELBA KURMAN, FAB3RICATED: THE NEW WORLD OF 3D PRINT-
ING 224 (2013). See generally JEPPE ANDERSEN, THE INTELLECTUAL PROPERTY RIGHT IM-
PLICATIONS OP CONSUMER 3D PRINTING 32 (2014), available at http://pure.au.dk/portal-asb-
student/files/71036699/TheIntellectualProperty...ightjmplications.oConsumer3DPrinting.Final.pdf (discussing
how the big legal battles concerning 3D printing are yet to roach the courts, but several DMCA cease and desist take-down
requests have already been issued); Ben Depoorter, Intellectual Property Infringements & 3D Printing:Decentralized Piracy, 65
HASTINGS L.J. 1483, 1485 (2014); Sarah Swanson, Note, 3D Printing:A Lesson in History, 43 Sw. L. REV. 483, 485-86 (2014);
Joseph C. Storch, 3D PrintingYour Way Down the Garden Path. 3-D Printers, the Copyrightizationof Patents, and a Method for
Manufacturers to Avoid the Entertainment Industry's Fate, 3 N.Y.U. J. INTELL. PROP. & ENTERTAINMENT L. 249, 252-53
(2014).
13
Without fully understanding 3D printing and its legal implications, the ground swell concerning the technology could
turn into a torrent and IP owners could again be comparing a new technology to a mass murderer. See John Hontick
& Daniel Roland, 3D Printingand Intellectual Property: Initial Thoughts, 33 LICENSING J. 7, 14-15 (2013) (explaining how the
movie industry once compared the VCR to the Boston Strangler, because like the Boston Strangler, the VCR preys on women
home
1
alone).
MICHAEL
Iee WEINBERG, WHAT'S THE DEAL WITH COPYRIGHT AND 3D PRINTING? 1, 1 (2013), avail-
able at https: / /www.publicknowledge.org/files/What's 2 0the 12ODeala2with/2OCopyeight%2Finalu/p20version2.pdf
(discussing the need for understanding the intellectual property limitations on 3D printing).
1517 U.S.C. § 102(a) (2006). See infra Part II.
16
The Rise of 3D Printing: Hearing Before the Comm. on the Small Bus., 113th Cong. 2 (2014) (statement of rep. Graves,
Chairman, Member, H. Comm. on Small Bus.) (discussing that while the technology has been around for a while, it is still
new in regard its recent application towards consumers); LIPSON & KURMAN, supra note 12, at 8-10 (recalling a time in the
late7 1980s when 3D printing irst started making headlines).
J Barry Berman, 3-D Printing: The New Industrial Revolution, 55 Bus. HORIZONS 155,158 (2012) (discussing how 3D print-
ing was used to produce prototypes and mockups). See also Irene J. Petrick & Timothy W. Simpson, 3D Printing Disrupts
Manufacturing: How Economies of One Create New Rules of Competition, 56 RES-TECH. MGM. 12, 13 (2013) ("3D printing
has been used for more than two decades, primarily for rapid part prototyping and small-run productin in a variety of
industries.").
MsSee Berman, supra note 17, at 158.
9
'2 1d. at 159.
(imothy J. Horn & Ola L.A. Harrysson, Overview ofCurrent Additive ManufacturingTechnologies and Selected Applications,
95 S PROGRESS 255, 258 (2012).
C.
114 Copyright in the Fabricated World JPTOS Notes

uses large amounts of material and grad-
ually reshapes the material into the de-
sired shape.21 3D printing is different be-
cause the printer builds the object from
the ground up.22 The printer only uses
what material is absolutely necessary for
the object's shape, thus it is "additive." 23
The ability to save resources when pro-
ducing goods is only the tip of the ice-
berg when it comes to the benefits of 3D
printing. 24 Most of the excitement is re-
lated to the type of creativity illustrated by
the Liberator: 25 amputees printing ornate,
lightweight prosthetics, 26 NASA printing
pizza 27 and impossibly complex engine
parts,28 and Olympic technicians printing
individual shoes to fit an athlete's particu-
lar body shape, weight, and gait 29 are only
21
See Shane Glenn, Developments in 3D Printingand Additive Manufacturing, 34 ADVANCED MANUFACTURING TECH. 6, 6
(2013); ANDERSON, supra note 3, at 74-76.
22
See Glenn, supra note 21, at 6.
' Id. See also Catherine Jewell,
http://www.wipo.int/wipomagazine/en/2013/02/article_0004.html (explaining how the "additive process . .
some of the examples. While the bene-
fits and upside to 3D printing can be as-
tonishing, for intellectual property hold-
ers the legal ramifications of the technol-
ogy may prove to be alarming.30 As one
author put it, "in the same way that books
democratized information and the Inter-
net has democratized communication, 3D
printing is going to democratize produc-
tion of goods." 3 1 The prediction is that
3D printers will be used by the everyday
consumer to build, modify, and print ex-
isting goods. 32 If this proves to be true,
the distribution of those goods will be
dramatically changed.33 Consequently, if
the design files for those goods are freely
shared online, through the already well-
established peer-to-peer networks prolif-
3-D Printing and the Future of Stuff, WIPO (Apr. 2013),

.
minimizes waste because it only uses the amount of material required to make the component [which] is distinct from
traditional 'subtractive' manufacturing processes where materials are cut away to produce a desired form").
24
Hornick & Roland, supra note 13, at 14 (explaining the technology's far-reaching ability for disruption and concluding
that that the technology will inevitably face various intellectual property battles, just as the printing press, the VCR, and file
sharing did).
25
Frances Richards, Standing on the Edge ofa Revolution, 172 ADVANCED MATERIALS & PROCESSES 2, 2 (2014).
26Ashlee Vance, How About Them Gams: 3D Printing Custom Legs, BLOOMBERG BUS. WK. (May 3, 2012),
http://www.businessweek.com/articles/2012-05-03/how-about-them-gams-3d-printing-custom-legs (reporting how Scott
Summit, owner of Bespoke Innovations, uses 3D printers to print unique prosthetic limbs oriented towards the attributes
and affinities of each wearer).
27
Sarah K. Wiant, Comment: 3D Printing,71 & WASH. LEE L. REV. 699, 699 (2014).
2LIPSON & KURMAN, supra note 12, at 7-8 (explaining how NASA uses 3D printing to create an engine part that is so
complex it would be impossible to make without a 3D printer).
29
1d.
35
See generally Skyler R. Peacock, Note, Why ManufacturingMatters: 3D Printing, Computer-Aided Designs, and the Rise of
End-User Patent Infringement, 55 WM. & MARY L. REV. 1933, 1934 (2014); Thomas A. Campbell & William J. Cass, 3-D
PrintingWill Be a Counterfeiter's Best Friend, SCI. AM. (Dec. 5,2013), http://www.scientificamerican.com/article.cfm?id=3-
d-printing-will-be-a-counterfeiters-best-friend ("There's one downside to 3-D printing: it can do so much."); Bryan
J. Vogel, Casting 3D Printing's Coming IP Litigation: Usual Suspects and Dark Horses, BLOOMBERG BNA (Oct.
11, 2013), http://about.bloomberglaw.com/practitioner-contributions/casting-3d-printings-coming-ip-litigation-usual-
suspects-and-dark-horses/.
31
Matthew B. Hoy, 3D Printing: Making Things at the Library, 32 MED. REFERENCE SERVICES Q. 93, 93 (2013) (quoting
Jason Griffey, Absolutely Fab-ulous,48 LIBR. TECH. REP. 21, 22-24 (2012)). See Thomas A. Easton, 3D Printing and Dancing
Bears, ANALOG SCI. FICTION & FACT, Nov. 2013, at 19-20; LAWRENCE LESSIG, FREE CULTURE: How BIG MEDIA USES
TECHNOLOGY AND THE LAW TO LOCK DOWN CULTURE AND CONTROL CREATIVITY 105-06 (2004); Lawrence Lessig, Laws
that Coke Creativity, TED (Mar. 2007), http://www.ted.com/talks/larryessig-says-the-law-is-strangling-creativity.html
(questioning the current day read-only culture-where creative re-mixing is prohibited because the re-mixes are protected
by copyright-and arguing that 3D printing's ability to individualize goods should be accepted with little intellectual prop-
erty protection in order to encourage innovation).
32
See infra notes 50-65 and accompanying text.
33
Peacock, supra note 30, at 1941-42.
VOL 97, NO 1t Reitinger 115

erating the illegal sharing of books, mu- law, and Part III applies copyright law
sic, and movies, then the mass production to 3D printing. The Comment concludes
industry could face a Copernican Revolu- with the proposition that a CAD file is
tion3 similar to the one faced by the music sufficiently analogous to technical draw-
industry in the heyday of Napster.35 ings and rights holders should therefore
40
Before scores of online pirates begin seek, and indeed should be afforded,
printing guns,3 6 body parts,3 7 or illegal copyright's protection for CAD files used
drugs,38 the legal community must have in the 3D printing process.4 1
a firm understanding of the challenges
and hurdles 3D printing will engender.39
Specifically, intellectual property holders
must have some form of recourse in this I. Fabrication
brave new, fabricated world.
This Comment provides a proposed le- The first step in understanding 3D print-
gal understanding of the 3D printing pro- ing is learning why consumers have been
cess. Part I offers a brief overview of adopting its use in recent years. 42 Take the
CAD and 3D printing. Part II summa- example of Emma Lavelle, 43 a four year
rizes the pertinent landscape of copyright old born with arthrogryposis multiplex
34
See e.g., THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 149-50 (3d ed. 1996) (illustrating how the
revolution of Copernicus's, the shift from a Ptolemaic model to a heliocentric model, sparked an entirely new way of ap-
proaching problems). In this same way, Napster changed the face of digital media content by altering the way society
acquires digitized goods. See John M. Newman, Copyright Freeconomics, 66 VAND. L. REV. 1409, 1417 (2013) ("On a wide
scale, legitimate-content firms have incorporated a radical change into their delivery models: many now offer consumers
pseudo-ownership control over legally licensed content at a price of $0.00.").
35
See Hornick & Roland, supra note 13, at 14 ("IP owners have reason to be worried about 3D printing, which eventually
will allow almost anyone to recreate any existing product design, change, and manufacture the product to their liking, and
use or distribute it (and its concomitant CAD design)."); Desai &Magliocca, supranote 6, at 1693 (illustrating how the digi-
tization of media entertainment was followed swiftly by the transformation of the media industry and how the digitization
of goods, through 3D printing, will cause a similar transformation); Raymond Shih Ray Ku, The CreativeDestruction of Copy-
right: Napster and the New Economics of Digital Technology, 69 U. CHI. L. REV. 263, 323-24 (2002) (discussing how the music
industry eventually embraced a shift in music distribution post-Napster since the new technology-and more importantly
the changed economics of information distribution-spurred a worldwide network of peer-to-peer file sharing).
36
See Julian J. Johnson, Note, Print, Lock, and Load: 3-D Printers, Creation of Guns, and the Potential Threat to FourthAmend-
ment Rights, 2013 U. ILL. J.L. TECH. & POL'Y 337, 338; Katie Fleschner McMullen, Worlds Collide When 3D PrintersReach the
Public: Modeling a Digital Gun Control Law After the Digital Millennium Copyright Act, 2014 MICH ST. L. REV. 187, 188-89.
37
Marissa Fessenden, 3-D-Printed Windpipe Gives Infant Breath of Life, SCI. AM. (Aug. 20, 2013),
http://www.scientificamerican.com/article.cfm?id=3-d-printed-windpipe-gives-infant-breath-of-life.
3
8Lee Cronin, Print Your Own Medicine, TED (June2012), http: / /www.ted.com/talks/leecroninprintyourown-medicine.htnl.
But see MacGregor Campbell, Absolutely Fabricated,NEW SCIENTIST, Dec. 15, 2012, at 46 (opining that trying to conceptualize
the future of 3D printing is useless).
39
Melba Kurman & Hod Lipson, The Truth About 3D-PrintingPiracy, 191 POPULAR MECHANICS 72,73 (2014).
40
1ndeed, rights holders are already demonstrating a strong bent towards protection. See infra note 59 and accompany-
ing text (discussing how 3D printed goods have already demanded several cease and desist orders for items created by
hobbyists and home tinkerers).
41
See infra text accompanying notes 350-351. Notably, there are two ways in which rights holders may attempt protec-
tion: asserting a copyright on the CAD files used to print 3D objects and asserting a copyright on the resultant products
made with 3D printers. See infra Part III. This Comment analyzes both, concluding that asserting copyright on objects made
with 3D printers does not require any novelty in analysis, but asserting a copyright on CAD files themselves invites a terra
incognita. See infra Section IILA-B.
42
LIPSON & KURMAN, supra note 12, at 11 ("3D printing gives regular people powerful new tools of design and produc-
tion. People with modest bank accounts will acquire the same design and manufacturing power that was once the private
reserve of professional designers and big manufacturing companies.").
43
P. Balamurugan &G. Arumaikkannu, Design for Customized Additive ManufacturedExoskeleton Using Bio CAD Modeling,
3 INT'L J. INNOVATIVE RES. SCI, ENGINEERING & TECH. 2695, 2969 (2014) (explaining the exoskeleton's unique physical
structure).
116 Copyright in the Fabricated World JPTOS Notes

congenita." She has difficulty walking, a 3D printer.50 The influx of consumer-

must be spoon-fed daily, and will live a grade 3D printing allows "makers," s like
lifetime with weak, underdeveloped mus- Emma's mother, to design and print a
cles. 45 Children with her disease often device specifically fit for Emma's body.52
face debilitating growth expectancies be- Not only that, but Emma's mother will
cause they are unable to move entire seg- also able to modify the design and print
ments of their bodies. 46 While exoskele- new devices for Emma as she grows.53
ton devices exist to aid the underdevel- This means that any part of the device
oped muscles and allow the children to may be tweaked, re-formed, or improved
use their bodies as they wish,47 the de- at a fraction of the cost it would take
vices are mass-produced and only fit a to buy a new, traditional exoskeleton de-
limited number of people.48 For Emma, vice.5
the old manufacturing paradigm would
mean that she would not be able to walk Emma's story is one of many that
until she is much older.49 Thankfully, demonstrate the consumer need for prod-
Emma need not wait that long. uct individualization.5 5 3D printers pro-
vide this opportunity in a way that tra-
In Emma's case, physical freedom ditional manufacturing could never af-
came in the form of a hunk of plastic and ford.56 Due to this remarkable ability, ev-
"See Charlie Osborne, 'Magic Arms' 3D Printed Exoskeleton Nominated for Design Award, SMARTPLANET (Jan. 24,
2013, 9:26 PM), http://www.smartplanet.com/blog/bulletin/magic-arms-3d-printed-exoskeleton-nominated-for-design-
award/; Leslie Katz, 3D-Printed 'Magic Arms' Give Little Girl New Reach, CNET (Aug. 6, 2012, 4:18 PM),
http://www.cnet.com/news/3d-printed-magic-arms-give-little-girl-new-reach/ (describing Emma's condition).
4sKatz, supra note 44 (explaining that without the device, Emma's complete lack of bicep muscles mean that she cannot
overcome the force of gravity to move her arms).
"Whitney Sample, 3D Printing Opens the Doors for Custom Medical Device, STRATASYS (Jan. 20, 2013, 10:15 AM),
http://www.stratasys.com/resources/case-studies/medical/nemours (stating that children with the disease can poten-
tially experience cognitive loss due to a lack of stimulation).
4One popular adult version of the device is called the Wilmington Robotic Exoskeleton. See Osborne, supra note 44;
Balamurugan & Arumaikkannu, supra note 43, at 2695.
4
8Balamurugan & Arumaikkannu, supra note 43, at 2695 (describing the various devices used as exoskeletons).
"See id.; Katz, supra note 44 (discussing how the machines use heavy metal which makes them difficult or impossible for
small children to use).
"See Kay Roberts, 3D Printed 'Magic Arms' Let Little Girl Play and Hug, TCT (Aug. 2, 2012),
http://www.prsnlz.me/science-and-tech/3d-printed-exoskeleton-let/ (explaining how the device was printed with
ABS plastic, a light enough material to allow Emma to use the device).
5
'The term "maker" refers to anyone who uses CAD and a 3D printer to design and print an object. ANDERSON, supra
note 3, at 13 ("We are born Makers (just watch a child's fascination with drawing, blocks, Lego, or crafts), and many of
us retain that love in our hobbies and passions."). Importantly, the term is not reserved for only software engineers or lab
technicians, but anyone, trained or untrained, who has a desire to create. Id.
52
See Osborne, supra note 44.
53
See Sample, supra note 46.
54
See Osborne, supra note 44.
55
See Rob Stein, Doctors Use 3-D Printing to Help a Baby Breathe, NPR (March 17, 2014, 4:17 AM),
http://www.npr.org/blogs/health/2014/03/17/289042381/doctors-use-3-d-printing-to-help-a-baby-breathe (discussing
how doctors used a customized 3D printed windpipe splint to saved the life of a child born with a defective windpipe);
ANDERSON, supra note 3, at 64 (explaining how 3D printing enables consumers to reach beyond the three primary bottle-
necks of the twentieth-century). The three bottlenecks represent three hurdles a consumer must overcome in order to buy a
physical good. Id. These include: "(1) [t]he product[] [is] popular enough for manufacturers to make [it]; (2) [t]he product[]
[is] popular enough for retailers to carry [it]; and (3) [t]he product[] [is] popular enough for [the consumer] to find [it] (via
advertising or prominent placement in stores near you)." Id.
5See B.T. Wittbrodt et al., Life-Cycle Economic Analysis of Distributed Manufacturing With Open-Source 3-D Printers, 23
MECHATRONICS 713 (2013) ("The recent development of open-source 3-D printers makes scaling of distributed additive-
based manufacturing of high-value objects technically feasible and offers the potential for widespread proliferation of
mechatronics education and participation.").
VOL 97, NO 1 Reitinger 117

eryday purchasers are starting to realize cesses.6 First, is the story of MacGregor
individualization is not only possible, but Campbell and his broken teakettle lid. 62
necessary.57 Consumers, however, are not
the only group making this connection.58
1. Teakettles
Intellectual property owners are also start-
ing to become aware of the technology's One morning, Mr. Campbell, a New Sci-
potential for disruption.59 entist writer based in Portland, Oregon,
faced a daily irritation.6 3 The plastic knob
A. Everything Starts with an Idea to his teakettle's lid had broken off, leav-
ing him holding a broken teakettle with
Two vignettes demonstrate how 3D print- scalded hands.r Until the advent of 3D
ing could cause problems for intellectual printing, the New Scientist writer would
property holders.6 0 Each example dis- only have had two choices: throw away
plays a unique facet of additive manufac- product in its entirety or continue to burn
turing that would not otherwise be possi- his hands while making tea. 65 Luckily,
ble using traditional manufacturing pro- Mr. Campbell had recently heard of a new,
5
Take the solo project of Lean McCarthy's Dad for example, who used 3D printing to design and print a prosthetic
hand for his son, born without one. Steve Henn & Cindy Carpien, 3-D PrinterBrings Dexterity to Children with No Fingers,
NPR (June 18, 2013, 4:11 AM), http://www.npr.org/blogs/health/2013/06/18/191279201/3-d-printer-brings-dexterity-to-
children-with-no-fingers. Lean's Dad's motive, in part, was brought on by the ability to create and recreate prototypes at
less than five dollars apiece, after buying the 3D printer of course. Id. To have a prosthetic built through traditional means
would easily cost over $25,000. See Lucas Mearian, 3D Printing Community Rallies to Create $5 Hand for Kid, COMPUTER-
WORLD (Nov. 22, 2013, 11:07 AM), http://www.computerworld.com/article/2486260/emerging-technology/3d-printing-
community-rallies-to-create--5-hand-for-kid.html.
5
See infra Section I.A.
5
See generally Nathan Hurst, HBO Blocks 3-D Printed Game of Thrones iPhone Dock, WIRED (Feb. 13, 2013, 1:57 PM),
http://www.wired.com/design/2013/02/got-hbo-cease-and-desist/ (describing how HBO sent a cease and desist letter
to a maker who designed a CAD file for an iPhone dock shaped like the throne from the popular television series Game
of Thrones); Rose Auslander, United States: Time for Fashion Designers to Buckle Up for 3-DPrinting, MONDAQ (Jan. 27, 2014),
http://www.mondaq.com/unitedstates/x/288846/Patent/Time+For+Fashion+Designers+To+Buckle+Up+For+3D+Printing
(discussing the fear associated with pirated designs of shoes, clothing, and accessories if 3D printing becomes the industry
standard for the fashion industry); Nick Statt, Print Chop: How CopyrightKilled a 3D-Printed Final Fantasy Fad, CNET (Aug.
16, 2013, 11:29 AM), http://news.cnet.com/8301-1023_3-57598741-93/print-chop-how-copyright-killed-a-3d-printed-final-
fantasy-fad/ (demonstrating how a die-hard consumer briefly used a 3D printer to create figurines of his favorite Final
Fantasy characters before Square Enix, the owner of the game, squashed the operation with a DMCA take-down request);
ANDERSEN, supra note 12, at 32-33 (discussing the various DMCA take-down requests sent for alleged copyright infringe-
ment on various CAD designs uploaded to Thingiverse); Lucas S. Osborn, Of PHDs, Pirates,and the Public: Three-Dimensional
Printing Technology and the Arts, 1 TEX. A&M L. REv. 811, 824-25 (discussing the growing concern over piracy and 3D
printing (construing U.S. INTELL. PROP. ENFORCEMENT COORDINATOR, 2013 JOINT STRATEGIC PLAN ON INTELLECTUAL
PROPERTY ENFORCEMENT 6 (2013), available at http://www.whitehouse.gov/sites/default/files/omb/IPEC/2013-us-
ipec-joint-strategic-plan.pdf ("[Jiust as 3D printing offers the opportunity to make meaningful contributions to our society,
there also exists the opportunity for individuals who look to exploit others' hard work to abuse this technology by trading
in counterfeit and pirated goods, of which we must be cognizant and diligent in our efforts to prevent."))).
MSee WEINBERG, supra note 14, at 1 ("The direct connection that many people make between 'digital' and 'copyright' is
largely the result of a historical accident. The kinds of things that were easiest to create and distribute with computers-
movies, music, articles, photos-also happened to be the types of things that were protected by copyright. Furthermore, it
happened to be that the way computers distribute things-by copying-was exactly the behavior that copyright regulated.
As a result, copyright became an easy way to (at least attempt to) control what people were doing with computers.").
1
6 See, e.g., Wilbanks supra note 7, at 1148-49 (explaining how 3D printers make it possible for consumers to repair broken
parts to patented, store-bought goods, which could interfere with the patent owner's right to reproduce and reconstruct the
object).
62
Campbell, supranote 38, at 46.
Id. (discussing how the plastic part of the knob attached to his teakettle lid broke off, thus leaving a hole in the top of
the lid).
id.
6 Id. (explaining how the teakettle, besides the missing knob, was entirely functional).
118 Copyright in the Fabricated World JPTOS Notes
118 Copyright in the Fabricated Wortd IPTOS Notes

third choice, the use of a 3D printer.66 stood by 3D printers worldwide. 72 While

3D printing works just like 2D print- the technical side of CAD is complex, a
ing, except the printer uses powder or plethora of software exists to easily tweak,
melted plastic instead of ink or a laser.67 design, or build CAD files from scratch.'
Instead of printing a document or pho- In fact, several platforms for choosing pre-
tograph, the 3D printer prints three- existing shapes already exist, e.g. Shape-
dimensional objects.68 The best place to ways or Thingiverse.7 4 These websites
start, as with a 2D printer, is with a sim- act as a repositories for CAD files. Users
ple idea. For Mr. Campbell, the idea was can either download a shape from Thin-
to fix his broken teakettle by replacing its giverse and print it for themselves,7 5 or
damaged knob. 69 In the same way that a order a custom-designed CAD file from
2D printer would first require instructions Shapeways and have the company fabri-
76
for the placement of ink, a 3D printer first cate it for them.
requires instructions, commonly referred In Mr. Campbell's case, the CAD file
to as CAD files, for the placement of ma- for his teakettle knob did not already exist
terial. 70 and he did not own a 3D printer.77 There-
CAD files for 3D printers, also known fore, he decided to design the file himself
as "blueprints," come in many different and have Shapeways print it for him.78
formats, e.g. .amf or .stl.
71
These are the Once Mr. Campbell sent the design file
equivalent of .pdf files and can be under- to Shapeways, the printing process was as
MId. See also Wittbrodt, supra note 2, at 713 (explaining how everyday consumers are able to use 3D printers to fix broken
goods).
67
See Berman, supra note 17, at 155-62.
65
Charles Finocchiaro, Note, PersonalFactory of Catalystfor Piracy? The Hype, Hysteria, and Hard Realities of Consumer 3-D
Printing, 31 CARDOZO ARTS & ENT. L.J. 473, 476-77 (2013) (explaining how 3D printing works).
9
6 See Campbell, supra note 38, at 46-47.
70
d.
71
Kyle Dolinsky, Note, CAD's Cradle: UntanglingCopyrightability, Derivative Works, and Fair Use in 3D Printing,71 WASH.
LEE L. REV. 591, 599-602, 629 & n.221 (2014).
72
See WEINBERG, supra note 14, at 14 (stating that and stl file is "the object equivalent of a .pdf file [because it is] more
or less universally printable by 3D printers and allow[s] objects to be transferred digitally around the world"); James Grim-
melmann, Indistinguishablefrom Magic: A Wizard's Guide to Copyright and 3D Printing, 71 WASH. LEE L. REV. 683, 685-86
(2014); Tong Wu & Edmund H.M. Cheung, Enhanced STL, 29 INT'L J. ADVANCED MANUFACTURING TECH. 1143, 1144
(2006) ("STL format is rather conceptually simple and sufficiently accessible as it repetitively describes every normal and
vertex of triangular facets built for object approximation.").
73
See Campbell, supra note 38, at 49 (commenting on how 3D scanners can make the designing of an object much easier);
Melba Kurman, Carrots,Not Sticks: Rethinking Enforcement of Intellectual Property Rights
for 3D-Printed Manufacturing, 1 3D PRINTING 44, 44 (2014); Eisenberg, supra note 4, at 7-8 (discussing how children are
an important part of the 3D printing community and drawing a parallel between the current-day rise in popularity of 3D
printers and the 1970s rise in popularity of computing).
74
THINGIVERSE, http://www.thingiverse.com (last visited Oct. 1, 2013); SHAPEWAYS, http://www.shapeways.com (last
visited Oct. 1, 2013).
75
See THINGIVERSE, supra note 74 (follow "Explore" hyperlink; then select "Things" hyperlink) (using this method re-
quires owning a 3D printer).
76
SHAPEWAYS, supra note 74 (follow "Shop" hyperlink; then select "Gadgets" hyperlink) (displaying a multitude of pre-
designed shapes, the website allows user to browse and select which 3D objects they would like printed).
nCampbell, supra note 38, at 49.
7
8Mr. Campbell found the objective of designing the CAD file quite difficult, though not impossible. Id. "The broken
kettle knob is a small sphere atop a hollow cylinder, which in turn sits on a curved flange." Id. at 48. Obviously, making the
shape just described with an unfamiliar computer program would not be considered a leisurely afternoon activity for most
people. Id. Furthermore, even if Mr. Campbell designed the file correctly, he could be off by even a millimeter and the lid
would not fit the teakettle at all. Id.
7See Bilton, supra note 6, at B (explaining how 3D printing is as easy as clicking a button). But see Nick Allen,
Why 3D Printing Is Overhyped (I Should Know, I Do It for a Living), GIZMODO BLOG, (May 17, 2013, 9:11 AM),
VOL 97, NO1 Reitinger 119

simple as pushing a button, just like hit- grasping a cup of hot tea, he has come full
ting "print" on a desktop computer.79 The circle in understanding, as well as ben-
technical process the printer undergoes is efiting from, the 3D printing process.85
relatively simple. Regardless of its difficulties,8 6 the poten-
The CAD file is sent to the printer's tial for change is undeniable.87 However,
Random Access Memory ("RAM") and along with the advantages of the new
stored there until the object is fully technology, comes the ominous warning
formed.80 The printer uses software to of a "snake in the garden."8 8 The snake,
represent the .stl or .amf file in tessellated in the case of 3D printing, is that 3D print-
triangle facets. 8" The facets are analyzed ing will be the next great vehicle for online
using a slicing algorithm and the exact 3D piracy, similar to Napster.8 9 Indeed, some
shape is represented in 2D layers. 82 The predict that 3D printing will generate as
object is then printed-one 2D layer at a much as $100 billion in pirated intellec-
time.8 3 tual property revenue by the year 2018.90
As Mr. Campbell himself stated, "[t]he
When the piece is fully printed, Shape-
thought I might be doing something ille-
ways sends it back to Mr. Campbell.
gal did cross my mind."" A second ex-
As he satisfactorily puts his feet up while
http://gizmodo.com/why-3d-printing-is-overhyped-i-should-know-i-do-it-fo-508176750 (demonstrating why 3D printing
is not as easy or simplified as many people think).
MEli Greenbaum, Three-Dimensional Printing and Open Source Hardware, 2 N.Y.U. J. INTELL. PROP. & ENTERTAIN-
MENT L., 257, 276 (2013) (explaining how a 3D printer could infringe on an intellectual property holder's right of re-
production because the 3D printer copies the stl file onto its memory while making the desired 3D object). But see Lu-
cas Mearian, Review: LulzBot Mini 3D Printer Delivers Outstanding Details, COMPUTERWORLD (Jan. 14, 2015, 9:43 AM),
http://www.computerworld.com/article/2868817/review-lulzbot-mini-3d-printer-delivers-outstanding-details.html (dis-
cussing how some 3D printers, like the LulzBot, do not have "onboard" storage-like most other 3D printers-and must
use a connected computer's RAM to access the file to be printed).
81 Brian Rideout, Note, Printing the Impossible Triangle: The Copyright Implications of Three-Dimensional Printing,5 J. Bus.
ENTREPRENEURSHIP & L. 161, 167-68 (2011).
821d.
mCampbell, supra note 38, at 47 ("A baseplate gradually drops the model away from the nozzle to allow new layers to be
deposited on top of the previous ones, building the object, slice-by-slice."). See also LIPSON & KURMAN, supra note 12, at
68. Currently, 3D printers are only able to print objects the same size as their baseplates, in the same way that a 2D printer
would only be able to print as big a size of paper as has been loaded into its tray.
4
8 Campbell, supra note 38, at 48-49.
5
a 1d.
6
8 See id. at 48 (describing the difficulties of personally shaping a 3D object with CAD instead of simply choosing a shape
from an online repository like Thingiverse).
7
1 Id. at 49.
88See Finocchiaro, supra note 68, at 474 (commenting on a 2011 article from The Economist which not only compared
the traditional manufacturing process and 3D printing to the relationship between Gutenberg's printing press and the
inkjet printer, but also gave a warning of the "snake in the garden"-that 3D printing will allow "imitators to get
goods to market as quickly as innovators" and will thereby catalyze conflict over intellectual property with the use of
online peer-to-peer sharing). But see Michael Weinberg, The DIY Copyright Revolution, SLATE (Feb. 23, 2012, 12:14 PM),
http://www.slate.com/articles/technology/future-tense/2012/02/_3_d printing-copyright-and -intellectual-property_.ht
(recognizing the limitations of 3D printing's ability to qualify for copyright protection, Mr. Weinberg writes, "it is something
of a fluke that copyright law has become so intertwined with our online lives. For most people, the first things that were
easy to create and distribute online . . also happened to be material protected by copyright [which actually] has a narrow
scope.").
9
8 See Filton, The Printed World, EcONOMIST, Feb. 10, 2011, at 77, 78 ("[GJood ideas can be copied even more rapidly with
3D printing, so battles over intellectual property may become even more intense."); Desai & Magliocca, supra note 6, at
1691-94 (explaining how the digitization of things, through 3D printing, will force the production of goods to face a similar
transformation that copyright faced once music, film, and books were digitized).
90Janessa Rivera, GartnerReveals Top Predictionsfor IT Organizationsand Llsers for 2014 and Beyond, GARTNER (Oct. 8, 2013),
http:/ /www.gartner.com/newsroom/id/2603215.
91
Campbell, supra note 38, at 49.
120 Copyright in the Fabricated World JPTOS Notes
120 Copyright in the Fabricated World IPTOS Notes

ample is necessary to refine this point. ers to download it for free. 98

Not long afterward, Ulrich found the

2. The Penrose Triangle file on Thingiverse and sent Thingiverse
its first Digital Millennium Copyright Act
Another maker, Ulrich Schwanitz, was takedown request. 99 Ulrich claimed that
tinkering with CAD one day and success- the CAD file infringed on his copyright to
fully created a CAD version of the fa- the original CAD file and demanded the
mous optical illusion "The Penrose Trian- maker's file be removed for copyright in-
gle." 92 Delighted with his creation, Ul- fringement.1 00 Thingiverse complied. 101
rich decided that he should profit from his
hard work and uploaded the file to Shape- Although the "infringing" CAD file
ways. 93 Ulrich began successfully selling was eventually put back online, 102 the
the file for a modest price.94 story portrays an interesting assumption
A few days later, another maker stum- about these files. Not only do users think
bled upon the product listing.95 Liking they are copyrightable,10 3 but also that
the idea, but not wanting to pay for it, the copyright should be granted for the hard
maker set out to design a free version of work that goes into their creation. 104 As
the triangle. 96 The project finished with the following discussion illustrates, this
a near-identical version of Ulrich's CAD assumption is not only incorrect,105 but
file. 97 This time, however, instead of sell- also demonstrates that it is often difficult
ing the file on Shapeways, the maker up- to draw the line between what is copy-
loaded it to Thingiverse and allowed oth- rightable and what is not.10 6
92
See Rideout, supra note 81, at 165; Calum Bowden, The Object Analysis of the Future: "Penrose3.stl," 5 STUDENT ANTHRO-
POLOGY J. 27, 27-28 (envisioning the 3D printed triangle as a conduit for global, industrial change, Mr. Bowden states, "AM
[additive manufacturing] represents a hyper-automated neo-liberality that does not succumb to the paradoxes of inefficient
technical behaviors and disrupts traditional labour relations through its reliance on automated technology and the possi-
bility of localized production--every city could have an AM centre where a variety of commodities could be produced,
radically changing the current infrastructure").
93
See Finocchiaro,supra note 68, at 478.
94
1d. Shapeways allows makers to design their own pieces and upload the pieces for a specific price. Makers are then able
to advertise on the website and profit from the item's sale. See SHAPEWAYS, supra note 74 (follow "Sell" hyperlink).
95
Bowden, supra note 92, at 28-29.
96
WEINBERG, supra note 14, at 6.
97
1d.
9
8See ANDERSEN, supra note 12, at 32.
¶Id. See Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998); WEINBERG, supra note 14, at 5
("[T]he DMCA requires the hosting sites to act as impartial messengers between uploaders and rightsholders. Anyone can
upload a file to a site. If a rightsholder objects, they send that site a request to take down the file (known colloquially as a
'DMCA takedown notice'). When the site gets that request it takes the file down and alerts the uploader about the notice.")
(footnote omitted); Patrick Murck, Comment, Waste Content: Rebalancing Copyright Law to EnableMarkets of Abundance, 16
ALB. L.J. SCI. & TECH. 383, 391-95 (2006) (discussing the history of the DMCA).
looKimberley Kinsley, Gail Brooks & Tim Owens, InternationalLegal and EthicalChallenges Related to the Use and Development
of 3D Technology in the U.S. and China, 4 J. KNOWLEDGE MGMT., ECON. & INFO. TECH. 1, 4 (2014). See also Finocchiaro,
supra note 68, at 478.
lolFinocchiaro, supranote 68, at 478.
102It was later pointed out that Ulrich likely did not have an intellectual property right to the "Penrose Triangle" and likely
had only created a derivative work. See id. at 478-79. Due to pressure surrounding Ulrich's assumption of ownership, he
rescinded the DMCA request shortly after sending it. See id.; Bowden, supra note 92, at 29.
15 3
But see Weinberg, supranote 88 (debunking the myth that all media shared online is protected by copyright).
14See infra note 105 and accompanying text.
55
' See Feist Publ'n, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 352 (1991) (referring to the "sweat of the brow approach" the
Court quickly dismisses this incorrect standard for copyrightability). See infra Subsection II.A.1.
106See infra notes 108-109 and accompanying text.
VOL 97, NO 1 Reitinger 121
VOL 97, NO 1 Reitinger 121

1|. Copyright A. Copyrightability

Article I, Section 8, Clause 8 of the Consti-

tution states, "Congress shall have power
. . . to promote the progress of sci-
ence and useful arts, by securing for lim-
ited times to authors and inventors the
Underlying the idea of Ulrich selling his
exclusive right to their respective writ-
CAD file on Shapeways lies a bedrock
Here lies the
premise, that of an ownership right to ings and discoveries.""o
07 basic function of copyright: "[T]o enrich
some aspect of the 3D printing process.1
society's wealth of culture and infor-
This line of thinking likely stems from our 1
The purpose of copyright is
popular American thought assuming dig- mation.""
enrich the owner of the
ital media sold online, i.e. books, mu- not to monetarily2
copyright,11 but to further increase soci-
sic, and movies, is always protected by
ety's access to culture and information.'
copyright and therefore illegal to freely
share on peer-to-peer networks like Thin- Copyright's limited monopoly
giverse.108 Importantly, when it comes to achieves this purpose by "giv[ing] legal
3D printing, the ability to share CAD files protection to creative expression."114 The
online does not necessarily coincide with fictional monopoly is quite robust, is au-
09
this assumption.1 tomatically created, and lasts for an au-
107As can be seen by Ulrich's assumption of ownership over his CAD blueprint for the Penrose Triangle. See infra Section
III.A.
10sSee Weinberg, supra note 88 (discussing the assumption that permission is required to make use of anything found in
the digital world).
ImSee infra Part III.A (discussing the useful articles limitation and concluding that many physical objects created with 3D
printers will not themselves be protected by copyright). Indeed, if copyright were to extend beyond its constitutional limi-
tations, the economic justification of the legal construction would be mooted. See infra Subsection II.B.2; Desai & Magliocca,
supra note 6, at 1705-09 (discussing the doctrines of originality and merger in the context of a CAD file and concluding that
copyright's application to 3D printing will be limited.") (internal quotations omitted); Mazer v. Stein, 347 U.S. 201, 219
(1954) ("The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the convic-
tion that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents
of authors and inventors in 'Science and useful Arts."' (quoting U.S. CONST. art. I, § 8, cl. 8)).
1
oU.S. CONST. art. I, § 8, cl. 8. America adopted copyright from the British Statute of Anne, which had its roots in
prohibiting the unregistered copying of books. Anne [Constitution] Apr. 10, 1710, art. 1, § 8, cl. 8 (Eng.), available at
http://press-pubs.uchicago.edu/founders/documents/al 8_8s2.html. See also Thomas F. Cotter, Gutenberg's Legacy: Copy-
right, Censorship, and Religious Pluralism, 91 CALIF. L. REV. 323, 328 (2003); LYMAN R. PATTERSON, COPYRIGHT IN HISTOR-
ICAL PERSPECTIVE 12 (1968) (recounting how the Statute of Anne is "the foundation upon which the concept of modem
copyright was built"); Peter K. Yu, Of Monks, Medieval Scribes, and Middlemen, 2006 MICH. ST. L. REV. 1, 10-11; AUGUSTINE
BIRRELL, SEVEN LECTURES ON THE LAW AND HISTORY OF COPYRIGHT BOOKS 41-42 (1899).
1 ROBERT A. GORMAN, COPYRIGHT LAW 1 (2d ed. 2006). See also David G. Post, His Napster's Voice, 20 TEMP. ENVTL. L.
& TECH. J. 35, 41 (2001) (reiterating that the purpose of copyright is "[t]o increase society's overall stock of creative works").
112
See Derek Khanna, Reflection on the House Republican Study Committee Copyright Report, 32 CARDOzo ARTS & ENT. L.J.
11, 18 (2013) (discussing three myths commonly associated with copyright: (1) [tlhe purpose of copyright is to compensate
the creator of the work; (2) [c]opyright law is the operation of free-market capitalism; and (3) [t]he current copyright legal
regime maximizes invocation and productivity"). Interestingly, the copyright clause of the Constitution is one of the few
that explains what the purpose of copyright is, "to advance content creation and scientific invention." Id. See generally Jane
C. Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary Franceand America, 64 TUL. L. REV. 991, 992 (1990)
("[T]he U.S. Constitution's copyright clause . . . makes the public's interest equal, if not superior, to the author's.").
13
See Newman, supra note 34, at 1415 ("Underlying all of U.S. copyright law is the central tenet that if content were left
entirely unregulated, a large-scale market failure would occur.").
11
4See GORMAN, supra note 111, at 1.
115
See Khanna, supranote 112, at 24.
6
" See generally Newman, supranote 34, at 1415.
"17 U.S.C. § 102(a) (2006).
122 Copyright in the Fabricated World JPTOS Notes

thor's lifetime plus seventy years. 115 As a Copyright's requirement of originality

result,"' the protection is limited to "orig-
inal works of authorship fixed in any tan-
gible medium of expression. "" Here,
we find the two tenets of copyrightability:
original authorship and fixed in a tangible
medium.18
1. Original Authorship
Copyright is only available for works of
original authorship.' 19 Courts have de-
fined this term to mean that the copy must
be of a "distinguishable variation." 120 No-
tably, "the requisite level of creativity is
extremely low" and "the vast majority of
works [will] make the grade quite eas-
ily."121 Only if a work is "devoid of even
the slightest trace of creativity" would it
not suffice under the standard . 22
11
8See id.; H.R. REP. No. 94-1476, at 51 (1976), reprinted in 1976 U.S.S.C.A.N. 5659, 5664 (explaining that originality and
presents several difficulties for 3D print-
ing.123 First, courts routinely face dif-
ficulty when analyzing copyright claims
embodied in a new technology. Often, a
new technology tests the balance between
protecting asserted rights and encourag-
ing artistic creativity.125 A historic exam-
ple of this struggle is found in Burrow-
Giles Lithographic. Co. v. Sarony.'26
In Burrow-Giles, justice Holmes127 au-
thored an opinion centered upon whether
a photograph should be considered an
artistic expression. 28 Although the an-
swer might seem obvious today, the case
came about because of the then-recent in-
vention of photography.' The defen-
dant argued that the photograph failed
the standard of originality because pho-
tography is "mere[ly] [the] mechanical re-

fixation are the two fundamental criteria for copyright protection).

1
' 1See Tamara C. Peters, Infringement of the Adaptation Right: A Derivative Work Need Not Be "Fixed" for the Law to Be Broken,
53)J. COPYRIGHT Soc'y U.S.A. 401,401-04 (2006).
12
0Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99, 102-03 (2d cir. 1951). The author must have "contributed
something more than a'merely trivial variation."' GORMAN, supra note 111, at 15 (quoting Hoague-Sprague Corp. v. Frank
C. Meyer, Co., 31 F.2d 583, 586 (E.D.N.Y. 1929)).
1
"' GORMAN, supra note 111, at 16 (quoting Feist Publ'n, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340,346(1991)).
122
Feiat, 499 U.S. at 362.
2
12
infra Subsection i nSee cIr1A.
4See Murck, aupra note 99, at 400-03 (discussing how the "new" ability to digitize media content, i.e. books, movies,
and music, will force judicial response from ill-equipped courts); Metro-Gordwyn-Mayer Studios, Inc. v. Grokster Ltd., 380
F3d 1154, 1167 (9th Cir. 2004) ("[W]e live in a quicksilver technological environment with courts ill-suited to fix the flow
of internet innovation. . .. The introduction of new technology is always disruptive to old markets, and particularity to
those copyright owners whose works are sold through well-established distribution mechanisms."); Ben Depoorter, Tech-
nology and Uncertainty: The Shaping Effect on Copyright Law, 157 U. PA. L. REV. 1831, 1835 (2009) ("Whenever technological
advances create new means of making copies or communicating copyrighted works, difficult questions arise as to how
boundaries should be drawn around new uses of content created by the new technology.").
15See Murck supra note 99, at 175 (discussing the unintended consequences of the DMCA-offered to protect copyrighted
works-which ended up stifling legitimate creative expression); ELECTRIC FRONTIER FOUNDATION, UNINTENDED CONSE-
QUENCES: FIFTEEN YEARS UNDER THE DMCA, availableat https:/ /www.eff.org/pages/unintended-consequences-fifteen-
years-under-dmca ("The [anti-circumvention provision of the DMCA] was ostensibly intended to stop copyright infringers
form defeating anti-piracy protections added to copyrighted works. In practice [however] the anti-circumvention provi-
sions have been used to stifle a wide array of legitimate activities. As a result, the DMCA has become a serious threat to
several important public policy priorities.").
126111 U.S. 53,56 (1884) (discussing the copyrightability of a photograph).
127
ee id.; M. Margaret McKeown, Happy Birthday Statute of9Anne: The Dance Between the Courthand Congress, 25 BERKELEY
TECH. L.J. 1145, 114748 (2014) (discussing the prevalence for justice Holmes to construe copyright with a wide scope);
Herbert v. Shanley, Co., 242 U.S. 591, 594-95 (1917) (debating the copyrightability of the performance of live music, justice
Holmes stated, "there is no need to construe the [copyright] statute so narrowly," for "[ music did not pay, it would be
given up").
12sBurrow-Giles, 111 U.S. at 56.
121.at 58.
ofTie "merely mechanical" nature of the process is brought on by the "improvements in [the] machinery, and [its] mate-
VOL 97, NO 1e Reitinger 123

production of the physical features or out- phone company, the Court opined that
lines of some object . . . and involves no the directory did not pass the minimum
originality of thought or any novelty." 30 threshold of originality' 36 because it was
The Supreme Court disagreed and held "entirely typical" in its creation. 3 7 The
that the plaintiff had indeed sufficed the Court's analysis proved that the bar of
standard of originality because he manip- originality may be low, but it is not so low
ulated the photograph's light and shade that copyright protects mere facts-even
and made the picture entirely from his facts that were difficult to create or com-
own "original mental conception."1 31 The pile.' 3 8
case held firm with the common under-
standing of just how little creativity is re- A third, more recent case, brought to-
quired for originality, but faced inherent gether each of these difficulties.1 39 In
difficulty with its early understanding of Meshwerks v. Toyota Motors, the Tenth Cir-
photography.1 32 cuit analyzed the question of whether the
digital representation of a car sufficed the
Another struggle courts face is delin- traditional standard of originality.1 40 The
eating the line between copyrightable ex- case arose after Toyota started working
pression and mere facts.' 3 This line was with an advertising agency to produce
historically tested in Feist Publication, Inc. digitally pictured cars.' 4 ' Toyota wanted
v. Rural Telephone Service Co.' 34 In Feist, to use the images of its cars in television
a telephone company attempted to claim advertisements and could manipulate the
copyright to a compiled white-pages di- designs easier if the cars were digitally
rectory.135 In holding against the tele- rendered.1 42 Meshwerks, the company
rials." Id. at 59 ("It is simply the manual operations, by the use of instruments and preparations, of transferring to the plate
the visible representation of some existing object, the accuracy of this representation being its highest merit."). But see An-
drew C. Landsman, Note, Fender Bender: 3D Computer Modeling of Commercial Objects and the Meshwerks v. Toyota Decision,
8 J. MARSHALL REV. INTELL. PROP. L. 429 (2009) ("To me, [Computer Generated Imagery, like the art of photography]
is a complete misnomer, because the computers are just the tools. People generated the imagery using computers. Word
processors don't write for you, but people assume the computers do a lot more than they really do. (quoting John
Lasseter, CEO, Pixar and Disney Animation Studios)).
131
See id. at 60; Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 250 (1903) ("Personality always contains something
unique. It expresses its singularity even in handwriting, which is one man's alone.").
13 2
See McKeown, supra note 127, at 1148 (using the statements of Justice Holmes, who expressed concern when trying to
weigh the quality of art-because judges are "ill-suited to constitute themselves final judges of the worth"-Judge McK-
eown opines that whenever judges rule on matters concerning technological or artistic assessment, there will always be
angst produced from those judicial limitations (quoting FRANK LUNTZ, WORDS THAT WORK: IT'S NOT WHAT YOU SAY,
IT'S WHAT PEOPLE HEAR 7-8, 251-52 (2007)) (internal quotations omitted) (emphasis added); Depoorter, supra note 124, at
1834, 1837 (discussing the difficult line drawing courts face when embracing a new technology, Professor Depoorter states,
"courts frequently defer their decisions on the copyright status of new technology by including language that transfers
accountability
13 3
to the legislature").
See Peacock, supra note 30, at 1950-51 (discussing the line between 3D printing and non-copyrightable facts).
'34499 U.S. 340, 340 (1991).
135
1d.
36
1 1d. at 362. See also id. at 342 (discussing how originality is the sine qua non of copyright).
137
1d. But see Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99 (2d Cir. 1951) ("Originality . . . means little more
than a prohibition of actual copying. No matter how poor artistically the author's addition, it is enough if it be his own.")
(internal footnote omitted).
13
8Feist, 499 U.S. at 352, 362 (holding against the "sweat of the brow" approach which concerns the erroneous presumption
that copyright is warranted from hard work that goes into the creation of an article). See GORMAN, supra note 111, at 16
("The [flawed] standard [of the sweat of the brow] does not include requirements of novelty, ingenuity, or esthetic merit.").
13
Meshwerks, Inc. v. Toyota Motors Sales U.S.A, Inc., 528 F.3d 1258 (10th Cir. 2008).
14
1d. at 1258.
41
1 1d. at 1260.
42
1 1d.
124 Copyright in the Fabricated World JPTOS Notes

sub-contracted to create the digital mod- copy."1 49

els, approached the task by mapping data The holding therefore seemingly
points onto the physical cars and repre- closes the door to the idea that digitiz-
senting the data points on a computer. 143 ing objects could suffice originality 50
The finished product was a digital However, as can be seen in the dicta near
imaging of the data points that drew an the end of the opinion, the court left the
outline of the car.'" Meshwerks argued door open to other computerized rendi-
that the final product warranted copy- tions which could, potentially, be copy-
right's protection because of the amount rightable:' 51 "We do not doubt for an in-
of hard work it put into mapping the stant that the digital medium before us,
data points. 145 The Tenth Circuit dis- like photography before it, can be em-
agreed, noting that the final product was ployed to create vivid new expressions
"utterly unadorned-lacking color, shad- fully protectable in copyright."1 52 Unfor-
ing, and other details."1 46 Importantly, tunately, the Tenth Circuit did not further
to come to this conclusion the Tenth Cir- expand on this dicta. 5 3
cuit analogized the 3D computer model to
photography.147 Using this parallel, and 2. Fixed in a Tangible Medium
the precedent of Feist, the court found
that the digital models where unoriginal The second tenet of copyright requires
"copies" of Toyota's vehicles.' 48 Further, a work to be "fixed in a tangible
54
the court opined: "The fact that a work in medium."1 This criteria stems from
one medium [digital cars] has been copied the word "writings"155 in the Constitution
from a work in another medium [physi- and has since been liberally construed. 56
cal cars] does not render it any the less a To be "fixed," the work must be "suffi-
43
1d.
I at 1261.
144 Id.
5
14 Id. at 1268. The work took between 80 and 100 hours of effort per vehicle. Id. at 1261.
1461d. at 1261. But see Landsman, supra note 130, at 429.
47
1 Meshwerks, 528 F.3d at 1264.
4
1 8Id. at 1265 (construing Feist Publ'n, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 350 (1991)). The digital representations
could not be independent creations because they were, to put it simply, very good copies. Id. at 1261
149Meshwerks, 528 F.3d at 1267 (quoting 1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 8.01(B)
(2014)) (internal quotations omitted).
15
Id. (stating that originality might be sufficed if the digital expression is infused with creativity, such as manipulating
the "light and shade" of the 3D representation). But see Edward Lee, Digital Originality, 14 VAND. J. ENT. & TECH. L.
919, 930 (2012) (proposing a three part test for dealing with copyright in response to the "major flaws with the [Meshwerks]
analysis"); discussion infra Part III (making the claim that photography is an improper analogy for CAD files, which in some
way parallels the 3D models produced by Meshwerks).
15
Meshwerks, 528 F.3d at 1264-65.
15
2Id.
1 53
Id. See also Osment Models, Inc. v. Mike's Train House, Inc., No. 2:09-CV-04189-NKL, 2010 WL 5423740, at *2, *6 (Dec.
27, 2010). In Osment Models, the court opined on whether "selective compression," the process of scaling down the replica
of a building for a model, could be considered original despite the holding in Meshwerks. Id. at *2. The District Court for the
Western District of Missouri denied defendant's motion for summary judgment and held, at least in part, that there may be
room for selective compression to be considered original despite Meshwerks. Id. at *6.
15417 U.S.C. § 102(a) (1976).
1
ssU.S. CONST. art. I, § 8, cl. 8 ("[B]y securing for limited times to authors and inventors the exclusive right to their
respective writings and discoveries.") (emphasis added).
5
' 6GORMAN, supra note 111, at 18. Evidence of the liberal construction is found in the inclusion of pictorial, graphic,
and sculptural works in the more recent Copyright Acts. See 17 U.S.C. § 102(a)(5) (2006); GORMAN, supra note 111, at 18-
19 (demonstrating how the Copyright Act has even expanded the definition of "writings" to include architectural works,
computer programs, and sound records, even though two of three of these mediums do not even fully communicate with
humans-i.e. computer programs are only understood by computers and sound is only communicated via the human ear).
VOL 97, NO 1 Reitinger 125

ciently permanent or stable to permit it found in the latter half of the definition of
to be perceived, reproduced, or otherwise fixed referring to transitory duration. 161
communicated for a period of more than
transitory duration."1 57 Before the work is PGS and Technical Drawings PGS is a
fixed, there is no copyright, and as such, category of copyrightable works explicitly
copyright will never protect an idea or listed in the Copyright Act.' Included
method of operation.158 This is known as i this area, is the concept of a technical
the idea-expression dichotomy.1 drawing.' Technical drawings are copy-
Two aspects of the "fixed" requirement rightable, but the copyright does not ex-
are important for 3D printing. The first is tend to the non-copyrightable articles rep-
the idea of pictorial, graphic, and sculp- resented in the drawings.' 64 An example
160
tural works ("PGS")f. The second is of this limitation is found in Gusler v. Fis-
7
11 See 17 u.s.c. § 101 (2006); infga Subsection
15
ti.2.b.
5ee 17 u.s.c. § 102(b) ("In no case does copyright protection for an original work of authorship extend to any idea,
procedure, process, system, method of operation, concept, principle, or discovery. ... "). "Ideas, in other words, 'cannot,
in nature, be a subject of property."' Post, supra note 111, at 41 (quoting Letter from Thomas Jefferson to Isaac MacPherson
(Aug. 13,1813), reprintedin THOMAS JEFFERSON, WRITINGS 1286(1984)); see generally Fred Fisher, Inc. v. Dillingham, 298 F.
145, 150 (S.D.N.Y 1924) (discussing how two independently created but nearly identical maps of the same territory may be
individually protected by copyright); Baker v. Selden, 101 U.S. 99, 102 (1879).
159
5ee Stephen M. McJohn, Eldred's Aftermath: Tradition, the Copyright Clause, and the Constitutionotization of Fair Use, 10
MICH. TELECOMM. & TECH. L. REV. 95, 107 (2003) (discussing how "Itihe idea/expression dichotomy ensurels] that
although an author's expression may be protected by copyright, ideas may always be freely copied"); Dale P. Olson, The
Uneasy Legacy of Baker v. Selden, 43 S.D. L. REV 604, 605-06 (1998) (articulating another way to look at the idea-expression
dichotomy, that "'copyright protection extends only to the artistic aspects, and not the mechanical or utilitarian features, of
a protected work"' (quoting Broderbund Software, Inc. v. Unison World, Inc., 648 F. Supp. 1127, 1133 (N.D. Cal. 1986))).
0
16
16 1
5ee infra Subsection II.B.2.a.
See infra Subsection II.B.2.b.
16 17 U.S.C. § 101 (2006) ("Pictorial, graphic, and sculptural works include two-dimensional and three-dimensional works
of fine, graphic, and applied art, photographs. .. and technical drawings, including architectural plans.") (inter al marks
omidtted).
(uId. Architectural works are also specifically listed in the statute. See id.; see generally Vanessa N. Scaglione, Note, Building
Upon The Architectural Works Protection CopyrightAct of1990,61 FORDHAM L. REV. 193,193-196,204(1992); David. Shipley,
The Architectural Works Copyright ProtectionAct at Twenty: Has Full ProtectionMade a Difference?, 18 J. INTELL. PROP. L. 1, 8
(2010).
1 4
M
Iee M- LLC v. Stelly, 733 F. Supp. 2d 759, 781-82 (S.D. Tex. 2010) (holding that a valid copyright exists on the technical
drawings of tools, but the copyright does not extend to the manufacture of those tools); Victor Stanley, Inc. v. Creative
Pipe, Inc., No. MG-06-2662, 2011 U.S. Dist. LEXIS 112846, at 9-10 (D. Md. Sept. 30,2011) (holding that technical drawings
of useful articles, CAD drawings of benches, tables, and chairs, were eligible for copyright protection as technical draw-
ings, but defendant did not infringe on the copyright by merely manufacturing those articles-as a copyright will never
extend to an idea and the owner of a copyright on a technical drawing only holds copyright to the design file itself, not
the useful article it represents); Niemi v. Am. Axle Mgf. & Holding Inc., No. 05-74210, 2008 WL 1837253, at 4 (ED. Mich.
Apr. 23, 2008) (finding plaintiff's assertion of copyright infringement without merit because plaintiff only held copyright
to the technical drawings of the articles in issue, in this case stabilizer bars used in automobile suspension, and did not
hold a copyright to the articles themselves; therefore, manufacture of the articles did not violate the copyright); Morgan v.
Hawthone Homes, Inc., No. 04-1809, 2009 WL 1010476, at 13-16 (W.D. Pa. Apr. 14, 2009) (holding that plaintiff had a
valid copyright on the design drawings for various homes, but the copyright would not prohibit the manufacture of those
homes because the articles depicted in the drawings fall under the useful articles doctrine); Dldcaste Precast, Inc. v. Granite
Precasting & concrete, Inc., No. C10-322 MJP, 2011 W 813759, at 5-7 (W.D. Wash. Mar. 2, 2011) (permitting the technical
drawing of a vault to obtain copyright protection because while the drawing depicted a useful article, the drawing itself
merely "convey[ed] information" and was not itself a useful article). Compare Stratton v. Upper Playground Enters., No.
09-8796 PS, 2010 WL 5313317, at 4-5 (C.D. Cal. Dec. 16,T2010) (holding the illustration of a bong copyrightable even though
the illustration depicted a useful article with many "common" parts), with Inhale, Inc. v. Starbuzz Tobacco, Inc., 755 F.3d
1038 (9th Cir. 2014) (arriving at the conclusion that the artfully shaped features of a hookah were not copyrightable, but not
debating whether a technical drawing representing the hookah would have been copyrightable-i.e. analyzing the question
of separability rather than the question of originality under PGS). However, if the underlying object itself is copyrightable,
then the copyright would encompass the design drawing and the article. See infra Subsection ldcBI.
165580 F. Supp. 2d 309, 315-16 (S 2008).
MWNJY.
126 Copyright in the Fabricated World JPTOS Notes

cher.165 trict of Indiana extended this reasoning in

In Gusler, the plaintiff designed a de-
vice that helped extract fluid from the
nose of an infant.1 66 The designer copy-
righted the drawings and set out to profit
from its production.1 67 Early on in the
process, the designer found a compara-
ble device being sold by a competitor.' 68
The secondary device had features sub-
stantially similar to that of the designer's;
therefore, the designer filed a copyright
infringement suit.1 69
First, the District Court for the South-
ern District of New York accepted the de-
signs as technical drawings.1 70 The de-
signs represented the plans to build the
nasal device and were therefore copy-
rightable under the PGS category.' 7' Sec-
ond, the court held that regardless of the
copyright, the manufacturing of the de-
vice was not protected. 7 2 While the de-
signer could copyright his technical draw-
ings, the copyright would not extend to
the "idea" encompassed therein, i.e. the
idea-expression dichotomy bars protec-
tion of the device itself.173
Following the case, the Northern Dis-
1
16 7
at 312.
at 132-31
1
68 d.
69
1d. A copyright infringement claim has two essential elements:
constituent elements of the work that are original." Feist Publ'n, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).
17
at 134-35.
171 id.
Forest River v. Heartland Recreational Ve-
hides. 74 The plamhff m Forest River de-
signed a vehicle floor plan and asserted
a copyright to the drawings of the floor
plan.175 The court accepted the designs
as copyrightable under PGS, but held that
the manufacturing of the floor plan would
not violate the copyright.176 Although the
technical drawings of the articles could
not copyrightable,'7 as emphasized in
78
Gusler.1
However, unlike the articles in Gusler,
the floor plans in Forest River were only
manufactured after the defendant im-
permissibly copied the plaintiff's copy-
righted drawings.179 Relying upon this
intermediate step, the plaintiff argued
that the copying constituted copyright in-
fringement on the articles themselves. 80
In answer to this argument, the North-
em District of Indiana averred that ex-
tending copyright to protect an article
manufactured through the use of copied
copyrighted drawings would essentially
widen the scope of copyright.a 8 ' If the
F sid.
s ad
a "(1) ownership of a valid copyright, and (2) copying of
a1ds

'72td. See also Nat'l Med. Care, Inc. v. Espiritu, 284 F Supp. 2d 424,434-36 (S.D. W. Va. 2003) (explaining how the copyright
on a technical drawing pertaining to a medicine cabinet would not extend to the physical article depicted in the technical
drawing because the article is a useful article and not eligible for copyright protection).
73
1 Gusler, 580 F. Supp. 2d at 315. See also Forest River Inc. v. Heartland Recreational Vehicles, LLC, 753 F. Supp. 2d 753,
758 (N.D. d. 2010) (holding that copyright will extend to a travel trailer floor plan as a technical drawing, but not the
underlying article the drawing represents).
74
at 759-60. t hF.
756. mnfcueat
'71.at 759-60.
1
77i. at 159. See also infda Subsection up.o.n.
17
8See Gusier, 580 F. Supp. 2d at 315; Forest River, 753 F. Supp. 2d at 760 (holding that unless the underlying articles were
copyrighted themselves, the design copyright would not extend beyond the drawings).
1
River, 753 F. Supp. 2d at 759. erForest
1
8M. Thie court framed the issue as "whether a copyright in a technical drawing of a non-architectural useful article
precludes another party from using copies of that drawing to construct the useful article." Id.
1
2
Id. at 759-60.
18 Id ("The [clourt is not inclined to recognize a distinction between using original copyrighted technical drawings to
VOL 97, NO 1 Reitinger 127

extension were granted, the protection ital media content urged the Second Cir-
would be more akin to a patent's pro- cuit that Cartoon Network "copied" their
tection and would be too far reaching.18 2 property' 88 by temporarily storing it on a
The court held, despite the impermissible personal network.' 89 Cartoon Network,
copying of the copyrighted drawings, that on the other hand, argued that it never
the copyright did not extend beyond the "copied" the digital media content be-
drawings themselves. 83 The final prod- cause the work was only stored temporar-
uct was unprotected. ily, not for a period of "more than transi-
tory duration."1 90
The Fixed Requirement and Transitory In answering the question, the Sec-
Duration The second important aspect ond Circuit looked at the Copyright Act's
of the "fixed" requirement is the statutory use of "fixed" and determined that the
language of "transitory duration."184 This statute has two requirements.' 91 First, a
phrase comes directly from the Copyright work must be "embodied in a medium,
Act and, regarding 3D printing, has been i.e. placed in a medium such that it can
interpreted by two important cases. 85 be perceived, reproduced, etc., from that
The first is Cartoon Network LP, LLLP v. medium."1 92 Second, the work must re-
CSC Holdings, Inc.1 86 main embodied for "a period of more than
In Cartoon Network, the Second Circuit transitory duration."' 93 The Second Cir-
had the opportunity to analyze the statu- cuit then explicitly distinguished case law
tory definition of "fixed" after a television that the media content owners used to
company began storing digital media con- find a favorable holding in the district
tent on their personal servers before pro- court. 194
viding it to content subscribers.187 Seek- At the district court level, the plain-
ing injunctive relief, the owners of the dig- tiffs relied on application of the Ninth Cir-
build an RV and using duplicate copyrighted technical drawings to construct an RV, with only the latter constituting copy-
right infringement with respect to the finished product. To hold otherwise would be to elevate the Plaintiff's copyright to a
patent. Similar attempts to expand the scope of copyright protection to include the act of manufacturing a non-architectural
useful item using a derivative of the copyrighted drawing of that item have failed." (construing Nat'l Med. Care, Inc. v.
Espiritu, 284 F. Supp. 2d 424, 435-36 (S.D. W. Va. 2003))).
1 3
8 Id. at 760. The court also relied on Niemi v. Am. Axle Mf. & Holding Inc., No. 05-74210, 2006 WL 2077590, at *3-4 (E.D.
Mich. Apr. 23, 2008) ("Plaintiffs have failed to cite a single case holding that the use of copies, or derivatives of copies, of
copyrighted technical drawings to manufacture a machine constitutes an act of copyright infringement.").
1M17 U.S.C. § 101 (2006) (stating that in order for a work to be "fixed," it must be "sufficiently permanent or stable to
permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitoryduration") (emphasis
added). See supra Subsection II.A.2.
1
ss See 17 U.S.C. § 101.
16536 F.3d 121 (2d Cir. 2008).
17
s Id. at 123-24. The defendant, Cartoon Network, stored the data (digital media content) in "buffers" and then distributed
the data to subscribers upon request. Id.
188l7 U.S.C. § 106(1) (2006) (granting an exclusive right of reproduction). The Second Circuit framed the legal question as
"whether, by buffering the data that make up a given work, Cablevision 'reproduce[s]' that work 'in copies' . . . and thereby
infringes the copyright holder's reproduction right." Id. at 127 (quoting 17 U.S.C. § 106(1)).
189Cartoon Network, 536 F.3d at 124.
10
ld. at 125.
1 1
1d. at 129.
192
Id. at 127.
193
1d.
14
1 Id. at 125.
195991 F.2d 511 (9th Cir. 1993). Defendants also took support from the United States Copyright Office's 2001 report
on the Digital Millennium Copyright Act, stating that an embodiment is "fixed, '[ulnless a reproduction manifests itself
so fleetingly that it cannot be copied."' Cartoon Network, 536 E3d at 127 (emphasis in original) (quoting DMCA SECTION
128 Copyright in the Fabricated World JPTOS Notes

cuit's holding in MAI Systems Corp. v. not be retrieved by computer software. 202
Peak Computer, Inc.' 95 In MAI Systems, The Second Circuit then reasoned that the
the Ninth Circuit found that once a work question of transitory duration is "neces-
was embodied in a medium, then it was sarily fact specific" and concluded that 1.2
a copy.1 9 6 Finding this holding limited seconds does not meet the requirement of
in its application-because a work must "more than transitory duration." 203
not only be embodied in a medium, but Adding depth to this holding is the
also must remain embodied for more than case of CoStar Group, Inc. v. LoopNet,
transitory duration-the Second Circuit Inc. 204 In CoStar, the Fourth Circuit fur-
distinguished the Ninth Circuit's hold- ther defined transitory duration. 205 The
ing.1 97 defendant in the case, an Internet Ser-
In Cartoon Network, the question vice Provider ("ISP"), allegedly violated
turned not only on what it meant to be the plaintiff's copyright by acting as a con-
fixed, but also on what "transitory dura- duit between content owners and end-
tion" meant. 198 Therefore, the Second Cir- users. 206 The plaintiff temporarily stored
cuit concluded that MAI Systems merely copyrighted data on its servers at the re-
stands for the holding that "when a pro- quest of Internet subscribers. 207
gram is loaded into RAM, the embodi- The Fourth Circuit reached beyond
ment requirement is satisfied."1 99 How- Cartoon Network to define "transitory du-
ever, the transitory duration analysis must ration" as having both "qualitative and
still be performed.200 quantitative" characteristics. 208 The quan-
Regarding the transitory duration titative aspect refers to the period of time
prong, the Second Circuit found that the the protected work is possessed by an
plaintiff's work was only embodied in the alleged infringer.209 Similar to how the
defendant's possession for a period of a copyrighted work in Cartoon Network was
mere 1.2 seconds. 20 1 Thereafter, the work only held for 1.2 seconds, this part of the
was automatically overwritten and could analysis simply looks at the amount of
104 REPORT, U.S. COPYRIGHT OFFICE 111 (2001), available at http://www.copyright.gov/reports/studies/dmca/sec-104-
report-vol-1.pdf).
196
MAI Sys., 991 F.2d at 519. See also Cartoon Network, 536 F.3d at 128. The Ninth Circuit in MAI Systems analyzed whether
loading a program into the RAM of a computer constitutes a copy. MAI Sys., 991 F.2d at 513. While the defendants in the
case "vigorously" argued that mere embodiment in RAM does not constitute a "copy" under 17 U.S.C. § 101 (2006), the
Ninth Circuit did not delve into the issue of "fixed" in terms of defining "transitory duration." Id. Therefore, once the Ninth
Circuit found the work to be embodied, the analysis ended. Id.
197
Cartoon Network, 536 F.3d at 128.
1
98Id. at 128-30.
1
9Id. at 128. See also PAUL WALLACH, FUNDAMENTALS OF MODERN DRAFTING 45 (2d ed. 2014) ("The storage of memory
in a computer comes in two basic categories: long term and short term. The long term memory or read-only memory (ROM)
is permanent. It cannot be erased or changed. It is the fixed data that the computer uses while it is operating. The short-
term memory or random-access memory (RAM) operates only when the computer is turned on."); PNRAO, CAD/CAM:
PRINCIPLES AND APPLICATIONS 25-26 (3d ed. 2010) (discussing RAM in the 3D printing context).
200 Cartoon Network, 536 F.3d at 128.
1
20 Id. at 130.
202 Id.
20 3
Id.
204373 F3d 544 (4th Cir. 2004).
20s1d. at 550-51.
2
061d. at 546-48.
207id.
2081d. at 551.
209id.
210See id.; Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 E.3d 121, 130 (2d Cir. 2008).
VOL 97, NO 1t Reitinger 129

time a file is possessed. 210 B. Copyright's Scope

The case law described above demon-
strates the strong preference courts have
for limiting copyright's scope.216 Indeed,
The second part of the test, the qual- courts decided not to extended copyright
itative component, must also be assessed to cover either the underlying articles in
and looks to the "status of the trans- Gusler and Forest River or to hold an ISP
action." 211 This component focuses on liable for conceded copying in CoStar.217
whether the infringer is merely acting at The result stems in part from the par-
the bequest of another and has no con- ticularity robust protection copyright af-
scious ability to interact with the transac- fords.218 Two further doctrines align with
tion.212 The Fourth Circuit used this fur- this limiting preference: the useful articles
ther inquiry to delineate between an ille- and separability doctrines.
gally downloaded file which was indeed
"copied" onto an ISP's servers-though 1. The Useful Articles Doctrine
only in a temporary, transitory state-and
an illegally downloaded file which was As illustrated both in Cusler and Forest
stored on a computer for future use-a file River, not all physical articles are eligi-
"used to serve the computer or the com- ble for copyright.219 One of the largest
puter owner" and which the court held doctrines excluding objects from copy-
"no longer remain[ed] transitory." 213 In its right's monopoly is the useful articles doc-
conclusion, the circuit held that the defen- tine.22 0 A landmark case dealing with
dant, the ISP, did not copy the plaintiff's this doctrine is Mazer v. Stein.221
work because the files were merely "in In Mazer, the Supreme Court debated
transit," not at their final destination.214 the copyrightabiity of lamp bases art-
Thus, the work was never a "copy" and fully shaped as male and female danc-
never infringed. 2 1 5 ing figurines. 22 2 The problem arose af-
2 11
CoStar, 373 F.3d at 551 (stating that transitory duration is "quantitative insofar as it describes the period during which
the function occurs, and... is qualitative in the sense that it describes the status of transition").
21 2
Id.
213 id.
24id.
21 5
2 6
id.
also GORMAN, supra note 111, at 44; Darren Hudson Hick, fSeeConceptual Problems of Conceptual Separability and the Non-
Usefulness ofthe Useful Articles Distinction, 57 J. COPYRIGHT SOC'Y U.S.A. 37, 56-57 (2010) (discussing separability and the
merger doctrine).
217
See Gusler v. Fischer, 580 F. Supp. 2d 309, 315-16 (S.D.N.Y. 2008); Forest River Inc. v. Heartland Recreational Vehicles.
LLC, 753 F. Supp. 2d 753, 758 (N.D. Ind. 2010); CoStar, 373 F.3d at 551.
2
18 See Khanna, supra note 112, at 24.
21
9 See Gusler, 580 . Supp. 2d at 309, 315-16 (prohibiting copyright to extend to a device used to extract fluid from the nose

of an infant); Forest River, 753 F. Supp. 2d at 758 (prohibiting copyright to extend to the physical articles depicted in a floor
plan).
'bSee 37 C.F.R. § 202.8 (1949) (stating that functional articles will not be afforded copyright protection unless the article has
separable artistic and utilitarian features); Haritha Dasari, Note, Assessing Copyright Protectionand Infringement Issues Involved
with 3D Printingand Scanning, 41 AIPLA Q.J. 279, 290-91 (2013) (discussing useful articles and 3D printing); WEINBERG,
supra note 14, at 3 (explaining how most of the physical world is not protected by any form of intellectual property because
most physical objects are useful, useful articles are not protected by copyright, and most useful articles are ronobvious and
thus
22 not protected by patent either).
v. Stein, 347 U.S. 201, 201 (1954). tMazer
M Id.
3
'2 1d. at 202-03.
130 Copyright in the Fabricated World JPTOS Notes
130 Copyright in the Fabricated World IPTOS Notes

ter the original manufacturer, Stein, had protected because it represents an artis-
learned that Mazer was manipulating his tic expression on an otherwise utilitarian
statuettes of dancing figurines and repro- item, the statute left undefined the test for
ducing them for sale as lamps. 223 The those articles. 230 This question eventually
231
Supreme Court opined on the question of led to the doctrine of separability.
224
what constitutes "art."
Although Stein had registered the stat- 2. Separability
uettes with the Copyright Office, Mazer
argued that the lamp bases were mass- Separability remains an abstract aspect
produced, useful items-not art-and of copyright law often dealt with on
should therefore be precluded from copy- a jurisdiction-by-jurisdiction basis rather
right's protection.225 The Court disagreed, than on a national level.232 The varying
averring that it did not matter whether the approaches are not without discussion in
art was mass-produced or handcrafted.2 26 legal scholarship. 233 For the purposes of
The Court reasoned that it would be im- this Comment, however, only two cases
possible to subject "art" to such a rigid for- need be addressed-Kieselstein-Cordand
mula and held that as long as the work is Carol Barnhart.
an artistic expression conveyed in a tangi- In Kieselstein-Cord v. Accessoires by
ble medium, 227 the work will qualify for Pearl, Inc., the Second Circuit dealt with
copyright.228 a common object containing both artistic
Following the case, the Copyright and utilitarian features: a belt buckle. 234
Office promulgated a regulation specif- The court emphasized the belt buckle's
ically permitting copyright to cover ar- "conceptually separable sculptural ele-
ticles with both utilitarian features and ments" and noted the belt buckle's use in
artistic features. 229 Although it was clear high fashion at the time. 235 The defendant
from this regulation that a good may be argued that the buckle should not be con-
224See id. at 205; Shira Perlmutter, Conceptual Separability and Copyright in the Designs of Useful Articles, 37 J. COPYRIGHT
SoC'Y U.S.A. 339, 344 (1990).
5
m Mazer, 347 U.S. at 205.
6
2 Id. at 214, 218 ("We find nothing in the copyright statute to support the argument that the intended use or use in
industry of an article eligible for copyright bars or invalidates its registration.").
7
2 Id. at 218.
5
m Id. at 214 ("Individual perception of the beautiful is too varied a power to permit a narrow or rigid concept of art.").
237 C.F.R. § 202.10(c) (1959) ("If the sole intrinsic function of an article is its utility, the fact that it is unique and attrac-
tively shaped will not qualify it as a work of art. However, where the object is clearly a work of art in itself, the fact it is also
a useful article will not preclude its registration."). See Cynthia D. Mann, The Aesthetic Side of Life: The Applied Art/Industrial
Design Dichotomy in Copyright Law, in 40 COPYRIGHT LAW SYMPOSIUM 103-04 (1997).
23
Permutter, supra note 224, at 339, 345-46.
231See Barton Keyes, Note, Alive and Well: The (Still) Ongoing Debate Surrounding Conceptual Separabilityin American Copy-
right Law, 69 OHIO ST. L.J., 109, 115 (2008) ("Of the many fine lines that run through the Copyright Act, none is more
troublesome than the line between protectable pictorial, graphic and sculptural works and unprotectable utilitarian ele-
ments of industrial design." (quoting 1 PAUL GOLDSTEIN, COPYRIGHT: PRINCIPLES, LAW AND PRACTICE § 2.5.3 (1989))).
2
See id. at 136-41 (discussing the various tests used to analyze separability); Perlmutter, supra note 224, at 340-41 (dis-
cussing the concept of separability and the many difficulties courts face when tackling the issue); Matthew C. Broaddus,
Comment, DesignersShould Strive to Create "Useless" Products: Using the "Useful Article" Doctrineto Avoid SeparabilityAnalysis,
51 S. TEX. L. REV. 493, 500-02 (discussing separability and the many ambiguities courts encounter when debating objects
that fall within this category).
23
See generally Hick, supra note 216, at 37-38; Keyes, supra note 231, at 109; NIMMER supra note 149, § 2.0(B)(3) (proposing
a new approach to separability given the splintered doctrine).
2632 F.2d 989 (2d Cir. 1980).
5
23 Id. at 993 (emphasis added).
26Id.
VOL 97, NO 1 Reitinger 131

sidered copyrightable because its artistic
features could not be physically separated
from its utilitarian features. 236 However,
the Second Circuit disagreed and held
that the "primary ornamental aspect" of
the belt buckle was conceptually separa-
sidered separable.24 3 Unlike the belt buck-
les in Kieselstein-Cord, that had artistic fea-
tures "superimposed upon" an otherwise
utilitarian article, the circuit reasoned that
mannequins are not mannequins without
some form of a chest and shoulders. 2

ble from the article's "subsidiary utilitar-
ian function." 237
The same circuit debated this issue
a few years later in Carol Barnhart Inc.
v. Economy Cover Corp. and reached
a different conclusion. 238 In Carol Barn-
hart, a maker of mannequins designed
to replicate the human torso urged the
court that his mannequins should receive
copyright's protection based on their ar-
tistically sculpted features. 239 The plain-
tiff emphasized that the mannequins were
sculpted from traditional clay-like mod-
els, just like most of the artwork produced
at the time.240 The court analyzed Section
102(a)(5) of the Copyright Act and dis-
agreed.241
The Second Circuit based its decision
upon the reasoning that the item's artistic
features, the life-size depiction of humans,
were "inextricably intertwined" with its
utilitarian features, the mannequin's dis-
play of clothing. 242 Therefore, the artistic
and utilitarian aspects could not be con-
77Id. Helpful to the plaintiff was the fact that the belt buckles were actually being worn in such fashion, either "around
"
Although the test is somewhat unclear,245
to attain separability an item must be, in
some form or fashion, artistically lever-
aged apart from its useful purpose. 246
Ill. CAD's Parallel
Turning now to 3D printing, there are two
ways one may attempt to secure a copy-
right in this realm. 247 The first is to try and
assert a copyright on the object itself-
the resultant product the 3D printer pro-
duces.24 8 The second is to try and copy-
right the CAD blueprint-the design file
representing the physical object. 249 Sec-
tion A discusses the first option and sec-
tion B discusses the second.

the neck or elsewhere on the body rather than around the waist." Id. at 991.
2773 F.2d 411 (2d Cir. 1985).
239
240 1d. at 413, 418.
Id. at 418 (arguing that the "sculptural forms" are also used for other non-utilitarian purposes like "modeling clothes").
See generally Perlmutter,supra note 224, at 361.
241 Carol Barnhart,773 F.2d at 414-15, 419 (construing 17 U.S.C. § 102(a)(5) (1982)).
242
d. at 419.
2431id.
244
1d. at 418.
245
1n some sense, the two cases may be distinguished by a different emphasis under the same test. The test used in Carol
Barnhartdiffers from the one used in Kieselstein-Cord,that of "conceptual or physical" separability, by more strictly adhering
to physical separability rather than conceptual separability. See Carol Barnhart, 773 F.2d at 425 (Newman, J., dissenting)
(arguing the works are conceptually separable even though they may not be physically separable).
24
6See NIMMER supra note 149, § 2.08.
247
See Greenbaum, supra note 80, at 274-77 (discussing the distinctions between copyrighted CAD files and copyrighted
physical articles). See e.g., Osborn, supra note 59, at 833-34 (illustrating the difficulty in this approach if the physical product
is both useful and artistic).
24
8See infra Section III.A.
24
9See infra Section u.B.
25oSee supratext accompanying notes 227-228.
132 Copyright in the Fabricated World JPTOS Notes

A. Applying Copyright to 3D sits on top of the lid's knob. 255 Mr. Camp-
Printed Objects: Easily Difficult- bell has now added an artistic expression
Separability on an otherwise functional item.256 The
item's utilitarian function remains to hold
Attempting to copyright an object could hot water, but the item's artistic function
be an easy task if the object is wholly artis- is now to appear aesthetically pleasing.
tic,250 but could be a very difficult task if This scenario quickly presents a poten-
the object has both utilitarian and artistic tial bar to copyright under the separabil-
qualities. 251 Aggravating difficulty in the ity analysis, 257 the lid now having both
latter category, is the demonstrated ability utilitarian and artistic qualities. 258 Impor-
of CAD software to allow makers to tin- tantly, however, while the landscape of
ker, adjust, and reshape useful objects. 252 separability is complex, 259 it is not new1 2 60
Take the example of Mr. Campbell. 253 and the technology of 3D printing will not
Before Mr. Campbell ordered his change the analysis in any significant way.
teakettle knob from Shapeways, he pos- Under Carol Barnhartand Kieselstein-Cord,
sessed a 3D blueprint of the object. 254 As- the fact is that an object originally made
sume that Mr. Campbell decided he did with a 3D printer does not impinge on the
not like the lid's plain design and manip- copyright analysis of the object itself. 26 1
ulated it by adding a small figurine that When looking at separability, the test does
21
252 See supra text accompanying notes 232-233 (discussing the various approaches to separability).
See supra notes 24-29.
3
25 See supra Subsection I.A.1.
mCampbell, supra note 38, at 46. Mr. Campbell necessarily possessed a CAD blueprint of the teakettle lid because this is
the only way he could have sent the file to Shapeways. See id.
255
See J. Rafael Tena et al., Fabricating3D Figurines with PersonalizedFaces, 33 IEEE COMPUTER GRAPHICS 36, 36-37 (2013)
(discussing the process of 3D printing a personalized figurine); David Rejeski, The Next IndustrialRevolution: How We Will
Make Things in the 21st Century and Why It Matters, 43 ENVTL. L. REP. 10232, 10232 (2013) (discussing how 3D printers make
creating complex items, like small figurines that sit on top of teakettle knobs, simple).
6
25 See e.g., Dolinsky, supra note 71, at 645 (demonstrating how a simple design for an iPhone case may be easily adjusted
with CAD to produce an "elaborate virtual model"). Once the "adjusting" is finished, the iPhone has artistically sculpted
features superimposed upon an otherwise utilitarian item. Id. (citing Maundy, How to Create Your Own Custom 3D Printed
iPhone Case, INSTRUCTABLES, http://www.instructables.com/id/How-to-create-your-own-3D-Printed-iPhone-Case-from/
(last visited Sept. 3, 2014)).
7
2, See Greenbaum, supra note 80, at 274-75 (discussing the difficulty of analyzing the copyrightability of a 3D printed
physical object which has both artistic and utilitarian functions).
5
m8See supra Subsection II.B.2.
59
' See, e.g., Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989, 992-93 (2d Cir. 1980) ("Ultimately, as Professor
Nimmer concludes, none of the authorities-the Mazer opinion, the old regulations, or the statute--offer any 'ready answer
to the line-drawing problem inherent in delineating the extent of copyright protection available for works of applied art."'
(quoting NIMMER supra note 149, § 2.08(B))).
260See, e.g., Inhale, Inc. v. Starbuzz Tobacco, Inc., 755 F.3d 1038 (9th Cir. 2014) (taking a recent look at separability, the Ninth
Circuit espoused a hard line approach when analyzing the non-separable, conceptual features of an artfully shaped hookah
used as a useful article).
261
See Kieselstein-Cord, 632 F.2d at 989; Carol Barnhart, Inc. v. Econ. Cover Corp., 773 F.2d 411, 411-12 (2d Cir. 1985). For
example, in the hypothetical of Mr. Campbell's teakettle lid with an attached figurine, the artistic and utilitarian features are
easily separable. See supra note 38. The lid prevents spillage and the figurine is an artistic expression. The lid is not copy-
rightable, but the figurine is. See Mazer v. Stein, 347 U.S. 201, 221 (1954). The only new consideration for 3D printing and
separability would then be to take into account the user-generated nature of the 3D printing community. See Finocchiaro,
supra note 68, at 495 (discussing how 3D printer enthusiasts freely post designs of goods on the website Thingiverse and
allow anybody to download them for free even though some of the same designs are sold on the website Shapeways for a
moderate price). Although this may color a public policy argument behind an analysis of separability and useful articles,
the end result would still be the same-relatively few articles created with a 3D printer, unless they are truly artistic articles,
would be eligible for copyright protection. See Greenbaum, supra note 80, at 274; WEINBERG, supra note 14, at 3.
262
See supra notes 240-241 and accompanying text.
VOL 97, NO 1 Reitinger 133

not consider the object's process of manu- may adhere to the same basic principles
facture. 262 that have been emphasized for decades. 268
For instance, both Carol Barnhart and
Kieselstein-Corddealt with two very differ-
ently manufactured materials, 263 but nei- B. Applying Copyright to CAD Files:
ther focused on the process by which the A Novel Approach-Technical
objects were manufactured. 264 Indeed, as Drawings
emphasized in Mazer, the fact that an ar-
ticle was manufactured, as opposed to an The second approach, which rights hold-
article that was hand crafted, has nothing ers should find more favorable, is to as-
269
to do with the article's ability to be copy- sert a copyright on the CAD file itself.
righted. 265 The object itself must merely This approach differs from the attempts
be copyrightable, 266 taking into account to copyright the underlying object in part
the threshold of originality and its ability because courts have yet to opine on the
to be fixed in a tangible medium. 267 The copyrightability of CAD files used for 3D
3D printer presents no new difficulties printing. 270 Makers and rights holders
when considering its final product; courts alike should be able to gain copyright's
263Compare Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989, 990 (2d Cir. 1980) ("To produce the two buckles
in issue here, the 'Winchester' and the 'Vaquero,' [the manufacturer of the belt buckles] worked from original renderings
which he had conceived and sketched. He then carved by hand a waxen prototype of each of the works from which molds
were made for casting the objects in gold and silver."), with Carol Barnhart, Inc. v. Econ. Cover Corp., 773 .2d 411, 411-12
(2d Cir. 1985) ("Plaintiff's president [the manufacturer] created the [mannequins] in 1982 by using clay, buttons, and fab-
ric to develop an initial mold, which she then used to build an aluminum mold into which the poly-styrene is poured to
manufacture the sculptural display form.").
264See Carol Barnhart, 773 F.2d at 418; Kieselstein-Cord,632 F.2d at 991-94.
265Mazer v. Stein, 347 U.S. 201, 205, 214 (1954) (rejecting petitioner's argument that no "art" is mass-produced, the Court
states "[s]uch expression, whether meticulously delineating the model or mental image or conveying the meaning by mod-
emistic form or color, is copyrightable").
'sSeeSection II.A.
2 67
See Feist Publ'n, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991) (noting that the majority of works will sustain the
threshold for originality with minimal creativity); Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121, 127 (2d
Cir. 2008) (finding that "transitory duration" requires the work to be "embodied in a medium" and "remain embodied for
a period of more than transitory duration").
26BSee WEINBERG, supra note 14, at 14 (discussing the limited impact copyright will have on useful, physical goods); Swan-
son, supra note 12, at 486-90 (discussing how 3D printed articles could sidestep the useful articles doctrine if the final product
is a work of art). A counterargument could be made that because 3D printing offers the ability for consumers to individual-
ize goods, the economic justification of copyright (to encourage proliferation of the arts) alters the separability analysis. See
notes 109-110 and accompanying text (discussing the economic justification of copyright). While the copyrighted belts in
Kieselstein-Cordencouraged designers to continue producing new designs, everyday consumers would be dissuaded by the
prohibition regarding modification of existing physical objects. See Kieselstein-Cord, 632 F.2d at 994. But see Lessig, supra
note 31. This argument essentially presupposes that closing the door to manipulations of existing goods also closes the door
to advancements. See LESSIG, supra note 31, at 305 (arguing that legal restrictions on creativity stifle creativity instead of
encouraging it). The argument is not novel. See supra text accompanying note 259 (illustrating that courts have historically
been urged one way or the other as to where the line should be drawn when it comes to separability). The new technology of
3D printing does not, based on the final object produced by a 3D printer, change the analysis. See McKeown, supra note 127,
at 1147-48 (construing Herbert v. Shanley, 242 U.S. 591, 594-95 (1917) (reiterating the importance of the economic incentive
to copyright a good, Justice Holmes stated, "[i]f music did not pay, it would be given up")).
269
Dolinsky, supra note 71, at 627 (stating that the crux of copyright and 3D printing will concern CAD files).
27
0See id. (discussing the problems courts may face when analyzing the copyrightability of CAD files); Osborn, supra note
59, at 812 (illustrating how 3D printing might fit into current intellectual property laws); Grimmelmann, supra note 72, at
684-85 (discussing the intellectual problems 3D printing will engender).
271
See Greenbaum, supra note 80, at 274 (discussing that while 3D printed objects will warrant scant copyright protection,
CAD files are easily copyrightable); Dolinsky, supranote 71, at 642-48 (finding that the design aspects of CAD files are best
understood as a technical drawings, but discussing the limitations on this analysis and proposing a new "composite test"
for understanding the "code component" of a CAD file, the CAD's underlying O's and 1's); Osborn, supra note 59, at 827
134 Copyright in the Fabricated World JPTOS Notes

protection for CAD files by way of com- tially similar maps and each hold a copy-
parison to technical drawings.271 Just as right to their respective products. 276 This
the courts in Gusler and Forest River per- result holds notwithstanding the fact that
mitted copyright to extend to the techni- the two maps are almost mirror images of
272
cal drawings of utilitarian objects, So each other.277
too should courts permit copyright to ex- The reasoning behind this odd result
tend to CAD files representing physical is that the two map makers are creating
objects. 273 Proving that CAD files adhere maps of the same tract of land,
indepen-
to the basic tenets of copyright, original- dent of each other.278
Each map maker
ity and fixed expression, 274 the question of has used their own creative expression
copyrightability will be first answered by to draw the "facts" of the land and nei-
providing a basic scenario regarding orig- ther is copying the work of the other.279
inality. Copyright will never extend to an idea
or fact; 280 thus, the non-copyrightable fact
1. Copyrightability: Overcoming Originality may be artistically rendered hundreds of
Imagine that two makers each design a times. 281
CAD file based on the same object. This Likewise, two makers creating a CAD
situation parallels an example discussed file of the same object will independently
in the case of Fred Fisher, Inc. v. Dilling- author creative expression via creating
ham. 275 In Fred Fisher, the Southern Dis- the design.282 It would not matter that
trict of New York demonstrated how two the two objects are nearly the same, as
map makers could create two substan- neither has been produced by copying
(accepting CAD's parallel to technical drawings); Rideout, supra note 81, at 168 (same); Dasari, supra note 220, at 291-94
(same).
272
See Forest River, Inc. v. Heartland Recreational Vehicles, LLC, 753 F. Supp. 2d 753, 758 (N.D. Ind. 2010); Gusler v.
Fischer, 580 F. Supp. 2d 309, 315-16 (S.D.N.Y. 2008).
273
Peacock, supra note 30, at 1949 (discussing the idea of "backdoor patents" and "mutant copyrights" to show that rights
holders will seek protection for their goods regardless of what legal tools already exist (quoting Viva R. Moffat, Mutant
Copyrights and Backdoor Patents: The Problem of Overlapping Intellectual Property Protection, 19 Berkeley Tech. L.J. 1473, 1475-
76, 1502-03 (2004)).
274
See supra Section II.A.
275298 F. 145, 150-51 (S.D.N.Y. 1924). See supra note 158 and accompanying text.
27 6
Id. at 151.
2"7Id.
27
81d.
2
7See id.; Osborn, supra note 59, at 827 ("[An art student who realistically draws a mountain, machine, or motorcycle has
independently made the drawing, even though the artist strives to depict the mountain, machine, or motorcycle in a way
that is identical to the real thing." (quoting Lee, supra note 150, at 938)) (internal quotation marks omitted). Independent
creation of a work "is the personal reaction of an individual upon nature. Personality always contains something unique. It
expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one
man's alone." Osborn, supra note 59, at 827 (quoting Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 249-50 (1903)).
280See supra note 159 and accompanying text.
281See Fred Fisher, 298 F. at 151.
282
See Osborn, supra note 59, at 827-30 (discussing how CAD files, like artistic drawings or technical drawings, are cre-
ated with artistic expression because the creation of a CAD file necessarily imparts personality into the object); Greenbaum
supra note 80, at 275 (comparing the ability of CAD files to find protection in copyright under technical drawings with the
relatively limited protection physical objects produced with 3D printers will find); see discussion infra Section m.C.
mlmportantly, this is where Ulrich's CAD file and the CAD file described in the hypothetical above differ. See discussion
supra Subsection I.A.2. The CAD file representing the Penrose Triangle would likely not fit into this hypothetical because
the Penrose Triangle could be an artistic expression. See Rideout, supra note 81, at 170 (explaining that Ulrich's CAD file
was based on an artistic 2D drawing created by Swedish artist Oscar ReutersvArd). Therefore, while the proposition may
be sound-that non-copyrightable facts may be represented in CAD and replicated without infringing on a valid copyright
(i.e. the CAD file may be created and copyrighted by the second maker based on Ulrich's CAD file because it was not copied
VOL 97, NO 1 Reitinger 135
VOL 97, NO 1 Reitinger 135

the other and the representation is of stored and manipulated with computer
a non-copyrightable fact.283 The bar to software. 288 Similarly, CAD files may
originality is low284 and, even account- be digitally stored and manipulated with
ing for the Meshwerks case distinguished computer software, thus they too should
below,285 CAD files created with inde- satisfy the "fixed" requirement.
pendent design should meet the mark While CAD files are saved in .stl or
through their creation. The question then .amf formats, 290 a format unreadable by
becomes whether CAD files meet the fixed humans without the aid of software, a
requirement. "copy" need only be perceived by humans
or digitally under the Copyright Act. 291
2. Copyrightability: The "Fixed" Require- Therefore, the file still meets the fixed
ment requirement even though most technical
drawings are not digital depictions. 292 Ac-
Assuming that the originality require- cordingly, CAD files would meet both
ment is met, CAD files should meet the the originality and fixed requirements of
"fixed" requirement in the same way that copyright.
technical drawings meet the fixed require-
ment. First, however, a further vetting of
the comparison is necessary. Limitations for CAD Files: A Useful Di-
As discussed above, a CAD file repre- chotomy In addition to the originality
sents a set of instructions used by a 3D and fixed requirements, the CAD file must
printer to make a physical object.2 86 Like- also overcome two initial hurdles which
wise, technical drawings are sets of in- may bar copyright protection: the idea-
structions used by machines or humans expression dichotomy and the useful ar-
to make physical objects. 287 Technical ticles doctrine.293 CAD files would sur-
drawings are explicitly mentioned in the vive the idea-expression dichotomy be-
Copyright Act and fit the statutory defi- cause the act of creating a CAD file, like
nition of "fixed" as they can be digitally the act of creating a technical drawing,
from the original)-the analysis assumes the underlying article is noncopyrightbale. In the case of the Penrose Triangle, the
original drawing could have qualified under copyright as an artistic expression; therefore, the hypothetical would break
down. Id. Furthermore, as emphasized in Meshwerks, merely representing a copyrighted work in another medium would
be insufficient for originality. See Meshwerks, Inc. v. Toyota Motors Sales U.S.A, Inc., 528 F.3d 1258, 1267 (10th Cir. 2008)
(quoting NIMMER, supra note 149,
§ 801(B)).
284Feist Publ'n, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991); Mazer v. Stein, 347 U.S. 201, 218 (1954); GORMAN,
supra note 111, at 18 & n.31.
5
28 See discussion infra Section LI.C
2 6
8 See supra text accompanying notes 67-70.
7
n See supra Subsection II.A.2.a (explaining technical drawings).
2l7 U.S.C. § 101, (2006) (stating, "[plictorial, graphic, and sculptural works include .., technical drawings"); NIMMER,
supra note 149, § 2.03(B) (discussing the "constitutional necessity" of the fixed requirement because without it, the work
would not be a "writing"); Dolinsky, supra note 71, at 643-44 (discussing the ability of design files to be fixed in various
tangible mediums).
9
28 5ee Brean,supra note 7, at 807 ("CAD files .. , satisfy the statutory requirement that such works be 'fixed in any tangible
medium of expression . . . from which they can be perceived, reproduced, or otherwise communicated, either directly
or with the aid of a machine or device' since they can be digitally stored, reproduced, and communicated via computer
software." (citing 17 U.S.C. § 102)).
290See supra text accompanying notes 71-73.
291
See Greenbaum, supra note 80, at 275 (discussing that "copies" may be perceived "either directly or with the aid of a
machine or device." (quoting 17 U.S.C. § 101)); Grimmelmann, supra note 72, at 686-87.
292
See NIMMER, supra note 149, § 2.03(B).
293
See discussion Subsection II.B.
136 Copyright in the Fabricated World JPTOS Notes

serves as an artistic expression. 294 The in the CAD files (the facts) would still not
fact or idea represented in the CAD file is qualify for copyright, just as the underly-
not copyrighted, but the technical draw- ing articles of technical drawings do not
ing of the CAD file is.2 9 5 Further, CAD qualify for copyright.2 98 Two points of
files are not disqualified by the useful arti- clarity are needed to support this asser-
cles doctrine because the files merely por- tion. First, CAD's comparison to tech-
tray useful articles by conveying informa- nical drawings does not line up in ev-
tion, just like technical drawings. 296 As ery regard.2 99 Second, if CAD files war-
stated in the Copyright Act, a "useful ar- rant copyright when compared to techni-
ticle is an article having an intrinsic util- cal drawings, then the digitized cars in
itarian function that is not merely to por- Meshwerks need to be understood not as
tray the appearance of the article or to digital instructions but instead as pho-
convey information." 297 Therefore, CAD tographs. 300
files should overcome each hurdle and be
granted copyright protection.
CAD Files Compared to Technical Draw-
Notwithstanding these hurdles, how- ings: Gaps in the Comparison One po-
ever, the underlying objects represented tential stumbling point in the comparison
294
See Osborn, supra note 59, at 827 (discussing how the creation of a CAD file will natively impart the necessarily artistic
expression); see e.g., M-I LLC v. Stelly, 733 F. Supp. 2d 759, 781-82 (S.D. Tex. 2010) (discussing the copyrightability of techni-
cal drawings of tools and the noncopyrightability of the tools themselves). But see RBC Nice Bearings, Inc. v. Peer Bearing
Co., 676 F. Supp 2d. 9, 20 n.2 (D. Conn. 2009) (finding in dicta that an accurate drawing of a fact, a ball bearing, was not
copyrightable). The court in RBC Nice Bearings based this statement on ATC DistributionGroup v. Whatever It Takes Trans-
mission & Parts, Inc., which held that "when there is essentially only one way to express an idea, the idea and its expression
are inseparable [i.e., they merge] and copyright is no bar to copying that expression." ATC Distribution Group v. Whatever
It Takes Transmissions & Parts, Inc., 402 F.3d 700, 708-09 (6th Cir. 2005) (citing Kohus v. Mariol, 328 F.3d 848, 856 (6th Cir.
2003)). While the merger doctrine would not bar the copyrightability of CAD files created from scratch-because creation
necessarily imparts creativity, see supra notes 281-282 and accompanying text-it may nonetheless bar the copyrightability
of a CAD file created from a 3D scan. For an in-depth look at 3D scanning and copyright see Dasari supra note 220, at
300 (discussing the copyright implications of 3D scanning and concluding that a resultant CAD file created by using a 3D
scanner would not qualify for copyright protection); Desai & Magliocca, supra note 6, at 1705-09; Dolinsky, supra note 71, at
644-45 (finding that CAD produced from a 3D scan will fail the threshold for originality); Osborn, supra note 59, at 830-31
(concluding that a basic 3D scan of a physical object, without more, would not suffice the originality standard). But see
Lucky Break Wishbone Corp. v. Sears Roebuck & Co., 373 F. App'x 752, 756 (9th Cir. 2010) (holding that subtle shaping to a
3D scanned wishbone used to manufacture plastic wishbones suffices originality).
295
See Stelly, 733 F. Supp. 2d at 781-82; Victor Stanley, Inc. v. Creative Pipe, Inc., No. MJG-06-2662, 2011 U.S. Dist. LEXIS
112846, at *9-10 (D. Md. Sept. 30, 2011); Forest River, Inc. v. Heartland Recreational Vehicles, LLC, 753 F. Supp. 2d 753, 758
(N.D. Ind. 2010); Gusler v. Fischer, 580 F Supp. 2d 309, 316 (S.D.N.Y. 2008); Niemi v. Am. Axle Mgf. & Holding Inc., No.
05-74210, 2008 WL 1837253, at *4 (E.D. Mich. Apr. 23, 2008); Nat'l Med. Care, Inc. v. Espiritu, 284 F. Supp. 2d 424, 434-36
(S.D. W. Va. 2003); Morgan v. Hawthorne Homes, Inc., No. 04-1809, 2009 WL 1010476, at *13-16 (W.D. Pa. Apr. 14, 2009).
296See 17 U.S.C. § 101 (2006) (detailing how a useful article has "an intrinsic utilitarian function" and does not merely "por-
tray the appearance of the article or . .. convey information"); Dolinsky, supra note 71, at 632-33; Osborn, supra note 59, at
832-34 (illustrating how CAD files may be considered non-useful because the files are simply used to convey information to
the 3D printer); see e.g., Masquerade Novelty Inc. v. Unique Industries, Inc., 912 F.2d 663, 669-70 (3d Cir. 1990) ("However,
[the analysis of separability] is only required where an article [in this case an animal face mask] is first determined to be
a 'useful' one under § 101. Congress has made plain its view that a product is only a 'useful article' if it has 'an intrinsic
utilitarian function that is not merely to portray the appearance of the article.' 17 U.S.C. § 101. If a sculptural work is not
a 'useful article' because its sole 'utilitarian function . . . is . . . to portray the appearance of the article,' then it remains
copyrightable under 17 U.S.C. § 102(a)(5) and a court need not analyze whether its utilitarian function is separable from the
work's sculptural elements.").
17 U.S.C. § 101 (quotation marks omitted) (emphasis added).
m98See Subsection II.A.2.a; see also Arnold B. Silverman, Copyright Protectionfor Engineering Drawings,47 J. MINERALS, MET-
ALS & MATERIALS SOC'Y 65, 65 (1995) (discussing the public policy limitations on the scope of copyright as a result of the
relatively easy process of obtaining copyright through the low threshold of originality).
'9See generally Dolinsky, supra note 71, at 631-34 (discussing the limitations of CAD files compared to technical drawings).
mSee infra Section UI.C.
VOL 97, NO 11 Reitinger 137

between CAD files and technical draw- didate for this extended form of protec-
ings is an argument rights holders would tion. 306 First, absent an express statement
likely make:301 that copyright on a CAD by the legislature, as with the type of
file should extend to the underlying ar- clear expression created for architectural
ticle.302 This argument appears to have works,307 the objects depicted in CAD
gained some traction in certain areas of would find themselves in the presump-
case law, e.g. in architectural works cases, tion of non-copyrightable facts. 308 It is
courts permit copyright to extend to both important to remember that the under-
the drawings of architectural works and lying objects expressed in CAD are still
the objects depicted in the drawings.303 facts, 309 just like the land in Fred Fisherwas
a fact.31 0 The idea-expression dichotomy
Although it is true that this area of
bars copyright's extension to ideas and
the law does exist, 304 and architectural
facts. 311 Second, as the courts in both For-
works are in some ways similar to CAD
est River and Gusler outlined, extension of
files,305 CAD files are an unlikely can-
31See Kurman, supra note 73, at 48.
302
ld. (discussing the public policy considerations of permitting CAD files to be copyrighted and illustrating the difficulties
in allowing the underlying objects described in CAD to fall under copyright's scope).
3Architectural works provide for extended copyright protection. See 17 USC § 101 (2006) (defining architectural work);
see e.g., Shipley, supra note 163, at 8 (articulating that prior to 1990 and the Architectural Works Copyright Protection Act,
copyright on architectural works covered the drawings of architectural works, but not the work's depictions (construing
Architectural Works Copyright Protection Act, Pub. L. No. 101-650, 104 Stat. 5133 (1990) (codified as amended in scattered
sections of 17 U.S.C.))).
3See Scaglione, supra note 163, at 193 (demonstrating the ability of a rights holder to acquire copyright on architectural
plans and the articles the plans depict); Dolinsky, supra note 71, at 629-31 (comparing CAD files to architectural works and
concluding that the differences outweigh the similarities). Another example concerns ship hulls, copyright's scope covers
not only the designs of the hulls, but also the useful articles depicted in the designs as well. See Maverick Boat Co. v.
Am. Marine Holdings, Inc., 418 F.3d 1186, 1191 (2005) (permitting copyright to extend to the useful article of a vessel hull);
Peacock, supra note 30, at 1952 ("The inclusion of the deck as part of the hull created a 'legal loop-hole' for competing man-
ufacturers that allowed them to safely copy the most useful part of a successful boat design-the hull itself-while only
making modest changes to the deck." (quoting Bradley J. Olson, The Amendments to the Vessel Hull Design ProtectionAct of
1998: A New Toolfor the Boating Industry, 38 J. MAR. L. & COM. 177, 180 (2007))).
30sBoth CAD files and architectural works are often described as "blueprints" and may be utilized as 3D depictions to build
physical structures. Dolinsky, supra note 71, at 629-30 (citing MICHAEL WEINBERG, IT WILL BE AWESOME IF THEY DON'T
SCREW IT UP 1-2 (2010), availableat http://www.publicknowledge.org/files/docs/3DPrintingPaperPublicKnowledge.pdf
(explaining how 3D CAD files are similar to blueprints); Hanna, supra note 3 (same); Greenberg, supra note 1 (referring to
CAD files as "blueprints")).
306 See Dolinsky, supra note 71, at 629-31.
7
3 See Shipley, supra note 163, at 8-10 (explaining that architectural works required protection for the underlying articles
because "architecture is an important form of artistic expression" and architectural works needed increased protection for
international treaty obligations after the United States entered the Berne Convention on March 1, 1989).
MSee Dolinsky, supra note 71, at 629-31. The reason the underlying shapes of architectural drawings receive protection is
because Congress found particular vulnerability in the time-gap between making an architectural plan and constructing a
building. Id. As Congress states "a potential gap in [copyright] protection may exist where an architectural work has been
depicted in plans or drawings, but has not yet been constructed." H.R. REP. NO. 101-735, at 19 (1990), reprinted in 1990
U.S.C.C.A.N. 6935, 6950. Therefore, Congress remedied the gap by permitting copyright to extend to the underlying objects
themselves. See Shipley, supra note 163, at 8. Conversely, 3D printing lacks this particular gap-objects may be fabricated
on the spot. See Dolinsky, supranote 71, at 630.
3
0See Feist Publ'n, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 344 (1991) (discussing non-copyrightable facts).
31
oFred Fisher, Inc. v. Dillingham, 298 E 145, 150 (S.D.N.Y 1924) (discussing that the hypothetical creation of two nearly
identical maps may be protected by copyright).
311
Supra text accompanying note 159 (discussing the idea-expression dichotomy).
312
See Gusler v. Fischer, 580 F. Supp. 2d 309, 315-16 (S.D.N.Y 2008) ("Copyright law protects an author's original expres-
sion, but does not give the author the exclusive right to use the ideas expressed in the author's work." (citing Baker v.
Selden, 101 U.S. 99, 102 (1879))); Forest River, Inc. v. Heartland Recreational Vehicles, LLC, 753 F. Supp. 2d 753, 758, 759
(N.D. Ind. 2010) (reiterating copyright's limits), relying on Nat'l Med. Care, Inc. v. Espiritu, 284 F. Supp. 2d 424,435-36 (S.D.
W. Va. 2003).
138 Copyright in the Fabricated World JPTOS Notes

copyright is generally prohibited.3 12 dox. A user would be able to possess a fi-

However, this analysis uncovers a fur- nalzed object printed from a copyrighted
ther problem.3 13 Namely, the copyright CAD file with a 3D printer without violat-
could be infringed by using the file it in mg the copyright, but the user would run
its intended manner to produce a physical afoul of the copyright if he were to print
object with a 3D printer. 314 The problem is the file himself because the 3D printer re-
that while the CAD file should qualify for quires the storage and copying of the pro-
copyright,3 15 using a 3D printer to make tected work.318 Consequently, we end up
an object requires the printer to store the with a scenario in which the product is
file in the printer's RAM. 316 Therefore, it unprotected, but the method of produc-
could be argued that the user, through the mg the product is protected.3 19 Were this
printer's storage and copying of the pro- the case, the copyright would essentially
tected CAD file, is infringing on the CAD extend to the very idea of the underly-
file's copyright under the MAI doctrine. 317 ing file, greatly broadening the scope of
This argument should not find sup- copyright for physical goods and giving
port. Allowing the copyright on a CAD a copyright holder much greater protec-
file to cover articles' designs but not the tion than320is prescribed under the bundle
articles themselves gives rise to a para- of rights.
31 3
See Depoorter,supra note 12, at 1490 (explaining how new technologies often present unforeseen challenges, Professor
Depoorter states, "[tjhe dynamic and unpredictable nature of technological innovation makes it difficult for lawmakers to
predict or anticipate forthcoming inventions. As a result, courts and legislators have a difficult time responding proactively
to avoid delays between the time people begin to use a technology and its legal classification").
3 14
5See Greenbaum, supra note 80, at 276 (discussing how a 3D printer "copies" a CAD file to make a 3D object, thereby
infringing on the copyrighted CAD design); IAN GIBSON, DAVID W. ROSEN & BRENT STUCKER, ADDITIVE MANUFACTUR-
ING TECHNOLOGIES: RAPID PROTOTYPING To DIRECT DIGITAL MANUFACTURING 5 (2010) (discussing how a 3D printer
can manipulate a 3D design so the printer has the correct size dimensions to print the desired object). But se Jonathan Band
& Jeny Marcinko, A New Perspective on Temporary Copies: The Fourth Circuit'sOpinion in CoStar v. LoopNet, 2005 Stan. Tech.
L. Rev. 1, 30-31 (discussing the implications of perceiving RAM as qualitative or quantitative in the context of the AI
doctrine).
315
ee supra Subsection III.B.2.a.
31 w
6uee supra note 199 (discussing RAM, the computer's temporary storage of memory).
317
5ee 17 U.S.C. § 106(l) (2006) (granting the exclusive right of reproduction to the copyright holder); MAT Sys. Corp.
v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993) (holding that once a work is "embodied" in a medium, like a
computer's RAM, then it is a copy); Greenbaum, supra note 80, at 276 (arguing that because the printer's RAM stores the
protected CAD file, the copyright may be infringed by producing an article with a 3D printer); Grimnelman, supra note
72, at 695-96. The problem is that "in theory" the copyrightable CAD files may be printed because the underlying objects
themselves, the facts, are not copyrightable. Grimmelmann, supra note 72, at 695-96. Therefore, copying a protected CAD
file would violate the copyright, but manufacturing the article described in the CAD would not. Id. However, in actual-
ity, manufacturing the article with a 3D printer copies the protected work through the printer's RAM and could therefore
violate the CAD file's copyright. See id. at 696.
31
3See IAN GIBSON, supra note 314, at 5.
31
Doee Grimmelmann, supra note 72, at 696.
32
4See LESSIG, supra note 31, at 305-06 (arguing that asserting control over "culture" overburdens creators and chokes
society's ability to innovate and move forward); Bradley J. Nicholson, The Ghost in fhe Machine: MA Sys. Corp. v. Peak
Computer, Inc. and the Problem ofCopying in RAM, 10 HIGH TECH. L.J. 147,167-68 (1995) (arguing thatextending copyright's
protection to acknowledge an infringement claim if protected work is copied onto RAM provides an "unprecedented level
of protection"); R. Anthony Reese, The Public Display Right: The Copyrighf Act's Negligent Solution to the Controversy Over RAM
"Copies," 2001 U. ILL. L. REV. 83,139-43 (arguing that RAM copies should not constitute copyright infringement, Professor
Reese states "[un a world where more and more information is accessed by computer and by a seemingly endless array
of computer-like devices, the effects of [infringement via RAMi are dramatic and may represent a sizable shift in control
over access to information."), relying on Jessica Litman, The Exclusive Right to Read, 13 CARDOZO ARTS & ENT. L.J. 29, 40-43
(1994); MARK A. LEMLEY, SOFTWARE AND INTERNET LAW 198 (2000); Hogan Sys., Inc. v. Cyberscore Int'l, Inc., 158 F.3d
319 (5th Cir. 1998); DSC Commc'ns Corp. v. DGI Tech., Inc., 81 F.3d 597, 600-01 (5th Cir. 1996) (denying relief to appellant's
contention that copying copyrighted work onto RAM constitutes copyright infringement); Tricom, Inc. v. Elec. Data Sys.
Corp., 902 F. Supp. 741, 745 (E.D. Mich. 1995)).
VOL 97, NO 1 Reitinger 139
139
V0L97. NOl Reitinger

RAM and the Meaning of Transitory "copying" the CAD file under the follow-
Duration One solution in maintaining ing analysis. First, 3D printers only hold
copyright's limited scope, touched on in CAD files in their RAM as long as the ob-
CartoonNetwork, is that 3D printers do not ject is being printed.3 27 If the object theo-
"copy" CAD files as understood by the retically took 1.2 second to print, then the
Copyright Act. 321 As stated above,
322
to case exactly parallels Cartoon Network.328
be a "copy" the work must not only "be Unfortunately, however, many 3D printed
embodied in a medium," but also remain objects take hours to print.329 Compared
embodied "for a period of more than tran- to the 1.2 seconds in Cartoon Network, the
sitory duration." 323 In the case of Car- 3D printer seems plainly to hold the file
toon Network, the work was embodied in for more than transitory duration. 330 This
a medium, but was only embodied for a set of facts therefore calls for the full test
33
period of transitory duration. 324 The Sec- used in CoStar. 1
ond Circuit defined "more than transitory
duration" as a time requiring more than In CoStar, the Fourth Circuit parsed
1.2 seconds, the amount of time the defen- the statutory definition of "transitory du-
dant's machine possessed the copyrighted ration" 332 and observed that the language
has both "qualitative" and "quantitative"
work. 325 Further, the court found the tran-
sitory duration inquiry "necessarily fact- components. 33 3 The quantitative compo-
specific" and took explicit notice of the nent is the time period of the transaction
fact that the machine automatically over- and the qualitative component is the sta-
wrote any data it stored. 326 tus of the transaction. 3 3 The quantitative
analysis tends to favor of a finding that the
335
Applying this reasoning to 3D printing printer "copies" the protected CAD file.
warrants a holding that the printer is not Even printing a simple shape with a 3D
321
Section 101 of the Copyright Act states that copies are "material objects . . in which a work is fixed by any method .

.
and from which the work can be perceived [or] reproduced." 17 U.S.C. § 101. Further, the Act provides that "fixed" refers
to "fixed in a tangible medium of expression when its embodiment . . . is sufficiently permanent or stable to permit it to
be . .. reproduced . .. for a period of more than transitoryduration." Id. (emphasis added). See Cartoon Network LP, LLLP
v. CSC Holdings, Inc., 536 F.3d 121, 127 (2d Cir. 2008) (reading "transitory duration" as requiring the work to not only be
"embodied
3 22
in a medium," but also remain embodied for "a period of more than transitory duration").
See Subsection II.A.2.b.
3 23
Cartoon Network, 536 F.3d at 127.
3Id. at 130.
325Id. at 129-30.
32 6
Id. at 130.
3271f the requirement is merely that the printer produce an object within 1.2 seconds, since this will be the amount of
time the copy is held in the printer's RAM, Cartoon Network could have paved a road for unencumbered manufacturing of
protected CAD files. Id. But see David Overcash, The Faster You Copy, The Less You Infringe: Beating Copyrights Without Fair
Use, 12 SMU SCI. & TECH. L.R. 219,230 (2009) (discussing the flaws with the requirement of quick overwriting and quick
copying to defeat copyright infringement claims).
32
8Cartoon Network, 536 F.3d at 127-30.
329
See Allen supra note 79 (discussing how even small items take hours or even days to print); Sanna M. Peltola, Ferry P.W.
Melchels, Dirk W. Grijpma & Minna Kellomaki, A Review of Rapid PrototypingTechniques for Tissue EngineeringPurposes, 40
AM. MED. 268, 278 (acknowledging that 3D printing can take hours or days to make a final product).
33
0See Cartoon Network, 536 F.3d at 127 (emphasizing the ability of the buffer to only save the data for 1.2 seconds and
immediately overrate it afterward).
331
CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544 (4th Cir. 2004).
2
33 1d. at 550-51.
mId. at 551.
3Id. at 550-51
335
id.
3
'3SeeAllen, supranote 79 (discussing the lengthy time it takes to print even simple objects).
140 Copyright in the Fabricated WorLd JPTOS Notes

printer could take several hours.33 6 While CAD files, the printer has no say in what
the shape is being printed, the printer it prints and the CAD files do not serve the
holds an exact copy of the CAD file (the printers in the same manner that the ille-
protected work) in the printer's RAM. gally obtained files in CoStar served their
Therefore, because the CAD file is fixed users.342 Like the non-infringing posses-
for more than a transitory duration, more sion of the ISP, which indeed copied copy-
than 1.2 seconds, the 3D printer is infring- righted data, but did not permanently ac-
ing on the CAD file's copyright.338 quire this data, 3D printers never per-
manently store CAD files.343 The printer
However, applying the second part of is a service responding to and process-
the CoStar test should yield the oppo- ing every user request, not a repository.34
site result. Qualitatively, a 3D printer is Therefore, the printer is not infringing the
merely a means to an end, not an end in protected CAD file while it is printing.
itself. 3 Unlike the possession of a file
on a computer, the file is never meant to Using the full CoStar test also provides
be stored by the printer for more than a a work-around to the idea-expression di-
one-time use.34 0 Data stored by 3D print- chotomy.345 If the full CoStar test were not
ers, like 2D printers, is automatically over- applied and copyright extended to the ob-
written with each new print job.341 In- jects embodied in CAD, the very idea of
deed, 3D printers are not repositories for the object will be copyrighted. 346 With the
337
See supra notes 80, 199 and accompanying text.
33
8SeeCoStar, 373 F.3d at 551; Daniel J. Buller, Note, Copyright Infringement in the Ether: RAM Buffering and the Copyright
Act's Duration Requirement, 59 U. KAN. L. REV. 659, 674-75 (2011) (discussing the strict timeline approach to "transitory
duration" expressed in Cartoon Network).
339
See CoStar, 373 F.3d at 551 (explaining how the allegedly infringing ISP was merely transferring data from one place it
another). In this way, the 3D printer is more like the ISP. Id. ("[Wlhen the copyrighted software is downloaded onto the
computer, because it may be used to serve the computer or the computer owner, it no longer remains transitory. This, how-
ever, is unlike an ISP, which provides a system that automatically receives a subscriber's infringing material and transmits
it to the Internet at the instigation of the subscriber.").
M3OId. Indeed, just like the ISP in CoStar, which automatically acted as a conduit to transfer data between locations, a 3D
printer automatically prints any data it receives. Id. The printer is not biased in terms of which data it will or will not print,
but merely prints any data transferred to it at the request of a user. Id. ("When an electronic infrastructure is designed and
managed as a conduit of information and data that connects users over the Internet, the owner and manager of the conduit
hardly 'copies' the information and data in the sense that it fixes a copy in its system of more than transitoryduration.").
MI See supra note 199 (discussing the non-existent ability of RAM to "save" information for a later use); IAN GIBSON, supra
note 314, at 5 (explaining how the printer is only able to minimally adjust a 3D shape to be created).
342CoStar, 373 F.3d at 551. The computer's downloaded files were said to have "serve[d]" the user in some form or fashion.
Id. ("When the computer owner downloads copyrighted software, [he] possesses the software, which then functions in the
service of the computer or its owner, and the copying is no longer of a transitory nature.").
3Id.
4Id.
34s See supra text accompanying note 159 (discussing the idea-expression dichotomy).
3
46See e.g., Todd Hixon, Note, The Architectural Works Copyright ProtectionAct of 1990: At Odds with the TraditionalLimitations
ofAmerican Copyright Law, 37 ARIz. L. REv. 629, 641-42 (discussing how extension of copyright to cover the works depicted
in architectural drawings essentially sidesteps the useful articles doctrine and allows wide coverage of many mundane
articles depicted in architectural drawings).
M7See supra text accompanying notes 115-116.
348See Forest River, Inc. v. Heartland Recreational Vehicles, LLC, 753 F. Supp. 2d 753, 759-60 (N.D. Ind. 2010) (refusing
to extend copyright protection to an underlying article because this would elevate copyright's protection to that of patent);
LESSIG, supra note 31, at 127-30 (criticizing the approach to fighting piracy with litigation); LIPSON & KURMAN, supra note
12, at 217-18 (explaining that the balance between protecting an author's asserted rights and encouraging creativity is not
easy and often comes with unseen difficulties); Storch, supra note 12, at 305-06 (using the music industry's face-off with Nap-
ster as an illustration for what could happen if manufacturers find favor with lawsuits and expanded control of protected
works); Grimmelmann, supra note 72, at 696 ("Now that the world of bits is colonizing the world of atoms, the makers of
things are about to learn that they are less special than they may have thought. They confront exactly the same enforcement
VOL 97, NO 1 Reitinger 141

robust grant of protection that copyright fact. 53 The analysis thus is in accord with
affords,3 7 this extension would surely sti- the historic treatment of technical draw-
fle creative expression." Thus, the out- ings.354
come would also fall outside copyright's
principle purpose, to encourage creativ- C. Why is Aeshwerks Different?
ity and progress of the arts.349 Likewise,
the full CoStar test protects CAD files in The Meshwerks case warrants some addi-
the same way as technical drawings. 350 tional remarks. 355 In Meshwerks, the Tenth
The CAD files may be copyrighted, but Circuit debated whether a digital depic-
the underlying articles themselves may tion of a physical object could be copy-
not.3 5 ' For example, if one maker, in- righted. 356 Holding it could not under
stead of creating a CAD file for him- the doctrine of originality,35 7 the court ar-
self, merely copied another's CAD file, guably faced (1) a different technology
this would constitute copyright infringe- than that of the CAD files used to print 3D
ment.352 However, the manufacture of the objects; and (2) a fundamentally different
impermissibly obtained CAD file would approach to obtaining copyright.358
not violate the copyright because the ar- First, the digital representation in
ticle itself is merely a non-copyrightable Meshwerks was never intended to be
printed.3 59 Therefore, it lacked the
challenges [as digitized media]: consumerized infringement-facilitating technologies; all-but-undetectable end-user copy-
ing; and an instantaneous worldwide distribution network. The 3D printer is the new CD-ROM drive."); Swanson, supra
note 12, at 483 ("Even though our society may finally be ready to step into the future, copyright law may postpone the tran-
sition. Following in the footsteps of the printing press, the Xerox machine, and the DVR, the 3D printer could potentially
cause more copyright complications than all the previous advances in technology combined."); Newman, supra note 34, at
1412, 1437-40 (arguing that copyright law needs to adapt to the "content abundance" era and embrace zero-priced goods
as a legitimate economic model); Depoorter, supra note 12, at 1502 ("[E]fforts to bolster enforcement through technological
protections are likely to set off an arms race between manufacturers and hackers, involving costly, non-productive uses of
resources. These difficulties are illustrated in the long-standing litigation involving peer-to-peer technologies and copyright
law.").
34See supra note 110 and accompanying text.
35
0See supra text accompanying note 164 (discussing how the files are protected, but the underlying objects
are not).
35 1
See e.g., Niemi v. Am. Axle Mgf. & Holding Inc., No. 05-74210, 2008 WL 1837253, at *4, (E.D. Mich. Apr. 23, 2008); Nat'l
Med. Care, Inc. v. Espiritu, 284 F. Supp. 2d 424, 434-36 (S.D. W. Va. 2003).
352Forest River, Inc. v. Heartland Recreational Vehicles, LLC, 753 F. Supp. 2d 753, 758 (N.D. Ind. 2010) (finding that while
there may be permissible end result to producing a product manufactured via an infringing process, the steps used to reach
the end result still constitute copyright infringement).
3 3
5 See id. (regarding the end result, the final product does not violate the original copyright on the technical drawing).

-See supra text accompanying note 164.

3ss528 F.3d 1258 (10th Cir. 2008).
as6Id. at 1260-61.
M7 Id. at 1270.
3 55
The plaintiff in Meshwerks merely attempted to create a "visually convincing" model of the car. Id. at 1261. The car was
never intended to be printed. Id. at 1260-61 (detailing Toyota's intent to use the digital images in advertisements). Rather,
the digital version of the car, owing its only "original" design features to Toyota, merely stood as a bare-bones picture of a
fact. Id. Importantly, a CAD file is much more than this. See Berman, supra note 17, at 155-56 (explaining that the unique-
ness of a 3D printer is its ability to seamlessly integrate with CAD and build any physical object from the simple click of
a button). A CAD file, like a design file, is meant to work with a 3D printer and produce a physical object. See supra text
accompanying notes 67-76; Landsman, supra note 130, at 451 (discussing the different types of digital renderings and how
some of these renderings may qualify for copyright protection).
359
Meshwerks, 528 F.3d at 1260.
36MSee Subsection II.A.2.a. The file did not depict an illustration used to guide a machine or human to create a work. Mesh-
werks, 528 F.3d at 1261. Unlike photographs, or "visually convincing" depictions of articles, technical drawings represent
designs to be manufactured. Id. See e.g., M-I LLC v. Stelly, 733 F. Supp. 2d 759, 781-82 (S.D. Tex. 2010) (holding a valid copy-
right exists to the design drawings of tools); Niemi v. Am. Axle Mgf. & Holding Inc., No. 05-74210, 2008 WL 1837253, at
*4, (E.D. Mich. Apr. 23, 2008) (holding a valid copyright exists to design drawings of stabilizer bars); Morgan v. Hawthorne
142 Copyright in the Fabricated World JPTOS Notes

essential features of a technical draw- Second, the subject matter of a CAD

ing,360 the same features that give CAD
files purpose-providing an electronic
blueprint for the placement of material."'1
Additionally, the file debated in Meshw-
erks was not independently created be-
cause it was, in some form or fashion,
scanned. 362 Unlike the creation of a
CAD file through the manipulation of
computer software, Meshwerks merely
mapped data points around a physical car
and displayed this information on a com-
puter.363 The Meshwerks outcome there-
fore might be more likely if a 3D scanner
were used, but not for CAD files created
independently. 364
file would not be approached with the
same copyright analysis as the digital rep-
resentation of the car in Meshwerks.365 The
court in Meshwerks opined that "the [new]
digital medium [could] be employed to
create vivid new expressions fully pro-
tectable in copyright." 366 However, the
entire idea of CAD is to produce a 3D
digitization-an exact depiction of a phys-
ical object-that is to be printed, not one
that is to be used like a photograph.367
Therefore, this road of dicta, in terms of
making a CAD file "creative" by adjust-
ing the "light and shade" of the image,
would not be applicable to purposefully

Homes, Inc., No. 04-1809, 2009 WL 1010476, at *13-16 (W.D. Pa. Apr. 14, 2009) (holding a valid copyright exists to design
drawings for homes). In each of these cases, the copyright did not exist because of the artistically crafted features of the
illustration, but because of the illustration itself and its use in the manufacture of the article. See Niemei, 2008 WL 1837253,
at *4; Morgan, 2009 WL 1010476, at *13.
as'Rideout, supra note 81, at 168 (discussing how CAD files are akin to blueprints as opposed to computer programs).
"What differentiates 3D CAD files from . . . computer programs is that the 3D CAD files are basically just a triangular
representation of a 3D object. The CAD files themselves do not control how 3D printers operate, they merely serve as more
of a blueprint for software to utilize." Id. See also Brean, supra note 7, at 798-99; Microsoft Corp. v. AT&T Corp., 550 U.S. 437,
464 (2007) (Stevens, J., dissenting) (discussing the definition of a blueprint and computer software, Justice Stevens states
"unlike a blueprint that merely instructs a user how to do something, software actually causes infringing conduct to occur.
It is more like a roller that causes a player piano to produce sound than sheet music that tells a pianist what to do."). In
this same way, the blueprint of a CAD file instructs the 3D printer on what shapes to print. See LIPSON & KURMAN, supra
note 12, at 85-95 (discussing how CAD software visualizes physical shapes using x, y, and z coordinates). Unlike computer
software, which could assert control over a 3D printer, the CAD file merely informs the printer which shape a user desires
to print. See Dolinsky, supra note 71, at 636-39 (explaining that the computer code component of CAD would not qualify for
copyright because the user does not "write" the code, the underlying blocks of information the computer reads, but merely
adjusts the pre-rendered shapes to create a final product). The comparison can be likened to the creation of a Microsoft
Word document. Id. at 639. When creating a Word document, the user does not author the code to be sent to a 2D printer
when the document is printed, but rather only writes the top-layer words that are linked by computer software and sent to
the 2D printer. Id. In this way, CAD is more like a blueprint than a computer program. See Rideout, supra note 81, at 168.
362See supra note 294 and accompanying text (discussing 3D scanning); Meshwerks, 528 F.3d at 1261.
36Meshwerks, 528 F.3d at 1260 (discussing how the unoriginal 3D models of the car were superior to 2D models because
"[wlith a few clicks of a computer mouse, the advertiser [could] change the color of the car, its surroundings, and even edit
its physical dimensions").
3MSee supra note 294 and accompanying text; Meshwerks, 528 F.3d at 1264 ("Applying these principles, evolved in the realm
of photography, to the new medium that has come to supplement and even in some ways to supplant it, we think Meshw-
erks' models are not so much independent creations as (very good) copies of Toyota's vehicles.") (emphasis added). As
can be seen by the court's summary, the digital depictions of the cars were directly compared to photography, not technical
drawings. Id.
assMeshwerks, 528 F.3d at 1264 (comparing the 3D depiction of Toyota's car to a photograph). See generally Landsman,supra
note 130, at 442-44 (arguing that the court in Meshwerks should not have approached 3D models as photographs, which must
be artistically crafted in order to surpass the low threshold of originality); Lee, supra note 150, at 928-33 (dissecting the anal-
ysis of Meshwerks and finding error in the court's comparison between 3D models and photography); Desai & Magliocca,
supra note 6, at 1706-07 (synthesizing the Meshwerks opinion with the technology of 3D scanning).
3
6Meshwerks, 528 F.3d at 1264-65.
7
3 See supra Section III.A.
368Meshwerks, 528 F.3d at 1267.
M
9
Compare id. at 1264 (applying the photography standard of originality to 3D outlines of cars and finding that "very
good" copies fail the low threshold or originality), with Eales v. Envtl. Lifestyles Inc. 958 F.2d 876, 879-80 (9th Cir. 1992)
VOL 97, NO 1 Reitinger 143
VOL 97, NO 1 Reitinger 143

unadorned CAD files. 36 Rather, CAD protection. This protection aligns with the
files are simply attempts at making digital constitutional aims and economic justifi-
370
blueprints for physical objects. 369 The ba- cation of the fictional monopoly: CAD
sic analysis is different: CAD files should files may be protected, the underlying
obtain copyright similar to the way de- shapes represented in CAD may not, and
sign files obtain copyright, under techni- the manufacturer of CAD files with a 3D
cal drawings. A Meshwerks-style analysis printer would not violate the copyright
would be entirely off-base for 3D printing, on the CAD file itself.37 1 In this way,
CAD files are not photographs. copyright of technical drawings would re-
main unaffected. 372 Makers may create
with the incentive of protected creativ-
Conclusion ity,3 73 but the protection does not run wild
by permitting the over-broad application
Comparing CAD files to technical draw- of copyright on both CAD files and the
ings and finding the two mediums of cre- articles represented therein.3 14 The ap-
ativity sufficiently analogous yields the proach therefore balances the interests of
conclusion that CAD files, like techni- rights holders and innovators in the fabri-
cal drawings, should warrant copyright's cated world.37 s

(finding a copyright on a technical drawing of floor plans and disputing defendant's claim that the floor plans did not sur-
pass the originality standard, the Ninth Circuit stated "[tihe originality requirement is met when the work is the result of
independent creation. ... The district court determined that Eales did not copy the .. . drawings and that she created the
plans for the model home without consulting those drawings"). As illustrated in Eales, so long as the technical drawing is
independently created-not a "copy [of] the copy"-then the work is original. See id.; Bleistein v. Donaldson Lithographing
Co., 188 U.S. 239, 249-50 (1903) ("But even if [the work] had been drawn from [reality], that fact would not deprive [the
rights holder] of protection. . . . Others are free to copy the original. They are not free to copy the copy. The copy is the
personal reaction of an individual upon nature. Personality always contains something unique. It expresses its singular-
ity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man's alone. That
something he may copyright unless there is a restriction in the words of the act.") (internal citations omitted).
37
0See supra note 110-113 and accompanying text.
371See supra Subsection III.B.2.c.
3
7See supra text accompanying note 164.
373
See supra Subsection II.A.2.a.
3 74
See supra note 320 and accompanying text (discussing how this framework would not allowing copyright's scope to
reach beyond the design files themselves).
375
See supra notes 124-125.