By Kristen Hoover, McCarthy Lebit
Can you print that? A strange question with an even stranger answer. With the advances in the world of additive manufacturing, or 3D printing as many are familiar with it, the answer is likely yes. Additive manufacturing or 3D printing is a manufacturing process that creates an end product by adding a single layer at a time. While there are multiple materials and a variety of specific processes used, most people are familiar with the 3D printers that create small items out of plastic, frequently found in makerspaces. Many high-end 3D printers can run you upwards of $1500, but there are some more economic, home-use models available starting in the $200 range.
The concept of 3D printing has been around since the 1980s and was used early on for rapid prototyping. A manufacturer could create a prototype at lower cost and much faster than with traditional manufacturing methods. In the 2010s, however, there was a big shift in 3D printing to an end-product manufacturing means and the technology began to be much more broadly applied in a variety of industries.
Today you can find 3D printing across the board. Some industries might seem like natural places to see advances in technology, like the biotech industry or architecture, even the military, and we do see a lot of applications in these areas with 3D printed orthotics and prosthetics, homes and office buildings, and grenade launchers and aircraft components. However, we now see 3D printing in industries like fashion with Nike’s Vapor Laser Talon Football shoe, Continuum Fashion’s N12 bikini, New Balance’s custom-fit shoes, and Francis Bitoni’s couture gown. Perhaps even more unlikely, the food industry is trying out 3D printing applications with companies like Natural Machines and their Foodini which is capable of printing foods like pasta dishes and pizza.
As any industry grows and implements technological advancements, there are legal issues that arise. With the increase in accessibility of 3D printers and exponential growth in popularity of the technology, there are already problems popping up, but not much precedence to determine what kinds of repercussions an infringer might face.
One problem being addressed is similar to the issue the music industry faced with digital distribution of music files without the artist’s consent, which is copyright infringement. In order to print something, a 3D printer uses an electronic file that basically gives the printer all the instructions necessary to create the object. These files are easily shared online and much in the same way the music industry saw mass dissemination of digital music files without the creators’ consent, the creators of these files for 3D printing can be similarly shared and re-shared without the creator being able to control it and, just like with music, these files are covered by copyright protection, so distributing them without the owner’s consent is also copyright infringement.
Another point to consider is the issue of liability. When it comes to 3D printing, who will hold the burden? For example, an individual with access to a 3D printer could print and distribute Marvel figurines of their favorite characters, but who would Marvel go after – the owner of the printer, the manufacturer of the printer, the creator of the digital file for printing, the supplier of the material, the person who buys the printed product? Maybe it will be websites like Shapeways and Thingiverse that provide access to digital files for 3D printing. Searching their sites, it does not take long to find files to make your own Pikachu, baby Groot or Yoda, as well as many other fan favorite characters; however, these sites have a safe harbor defense under the Digital Millennium Copyright Act as long as they have posted policies stating the copyright holders can request that infringing material be removed. This means copyright holders seeking financial retribution will have to look elsewhere. Some copyright owners have taken a different approach, choosing instead to license the rights to some of their IP to these sites, which allows fans access and also allows the copyright owner to maintain control while avoiding the feeling of playing an endless game of whack-a-mole.
But what about someone printing replacement parts for a machine on their 3D printer? Here the solution may not be as simple as licensing the digital file because the owner of the IP cannot ensure that the part manufactured meets the quality assurance and test standards they apply to parts manufactured at their own facilities. This opens up a whole world of product liability issues.
So, how does a business protect itself in a 3D printing world? For those companies with IP that might be infringed, it is important to actively monitor and enforce those rights in a financially strategic way. Companies should also consider a more symbiotic approach, a way to work with the flow of 3D printing growth, instead of fighting against it. Companies looking to utilize 3D printing or already starting down that path should consider the possible pitfalls they may encounter as well. Whichever camp you may be in, before making any big decisions with respect to 3D printing and your business you should consult with an attorney to help you navigate along the way.