From: Jonathan Handel (x@att.net)
Date: Sat Jun 08 2002 - 03:35:32 EEST
Hi all -
As an intellectual property, technology and entertainment attorney, and
former computer scientist, I read the most recent exchange of emails with
interest. The legal analysis is even more complicated than the emails
suggest.
A fundamental principle is that copyright does not generally protect useful
articles or mechanical devices. Thus, reverse engineering a prototype may
not constitute copyright infringement, even if doing the same thing with a
work of art (a sculpture, Pez dispenser head, or ring design) might.
Useful articles may, of course, be subject to patent protection, in which
case it may infringe patent rights to generate copies using an RP system,
whether from clean data or reverse engineering. In addition,
non-utilitarian articles may qualify for design patent protection. Also,
there are special protections relating to architecture, so use of an RP
system to create a building mockup may be copyright infringement if
copyright in the building plans is owned by someone else who has not
licensed the creation of a mockup. And, the design of some articles, such
as the classic Coke bottle, qualify for protection under the rubric of
trade dress (somewhat similar to trademark).
Another wrinkle is the fact that reverse engineering involves creating,
storing and transmitting a data set. The data set may be similar to or
constitute a derivative work of the RP data set, if any, that created the
part, or constitute a derivative work of the design plans. It seems
unlikely that courts would allow these technological details to be the
genesis of copyright protection for useful article, but courts do sometimes
focus on technological details in deciding copyright questions (for
instance, finding that running a piece of software without permission may
be copyright infringement because a copy of the program is made in RAM as a
necessary part of the process of execution).
Yet another wrinkle is that databases are subject to copyright protection
only under certain circumstances. To the extent that these rules are
applied to RP datasets, the discussion of copyright infringement becomes
murkier still.
It's also worth mentioning that distributing RP datasets - for instance,
making them available online, even if at no charge - may also constitute an
infringement of copyright or the other rights alluded to above. And, since
several educational institutions are members of this list, one has to
consider issues of fair use with regard to reverse engineering and RP by
those institutions.
Regarding a couple other issues raised: Reproducing the image of a person
may implicate rights of privacy and also rights of publicity, which are
certain controls people may have to control reproduction of their image,
among other things. For instance, if you shoot a couple photos of Tom
Cruise and use them to create a CAD dataset, and sell an RP model, you are
probably infringing his right of publicity even though he was (presumably)
in a public place when you shot the photos.
Also, semiconductor mask works are not protected by copyright. They are
protected by a special form of protection that is similar to copyright, but
is specially set out in a separate statute. Not that anyone asked, but
boat hulls also have a special form of protection akin to, but separate
from, copyright. Even stranger, the boat hull protection was included as
part of the Digital Millenium Copyright Act, which mostly dealt with
copyright issues raised by digital technology. I believe that a court had
declared boat hull designs ineligible for copyright protection and the boat
companies subsequently lobbied Congress to effectively reverse the decision.
The Cypress Tree at Spy Glass Country Club is probably subject to
trademark, not copyright, protection. I doubt there's any ability to
prevent taking photographs of it, but publishing the photos is a different
story.
Regarding news photography: there are complicated exceptions to copyright,
right of publicity and right of privacy that specifically apply to
news. These exceptions largely derive from the 1st Amendment to the U.S
Constitution.
Regarding art photography of crowds: if people are out in public, they
have little or no expectation of privacy, particularly if the photo is of
the crowd as a whole, not specifically of them. Likewise, as to right of
publicity.
publ
priv
semi
In summary, the law in this area is complicated and largely unexplored.
Jonathan Handel, Esq.
PO Box 691781
Los Angeles, CA 90069
tel & cell 323-650-0060
fax 323-654-5360
email X@att.net
http://www.jhandel.com (http://jhandel.home.att.net)
Notice to Recipient: Nothing in this email establishes an attorney-client
relationship nor constitutes legal advice.
At 03:11 PM 06/07/2002, Bathsheba Grossman wrote:
>On 7 Jun 2002, Brock Hinzmann wrote:
> > Add to that question: How much different does the stereolithograph/design
> > need to be from another design to be unique? A better anology than the
> > photograph might be in songwriting. All the notes are the same ones
> everyone
> > else uses and you write them down using the same symbols, but the order
> > makes a big difference. Sometimes the order sounds very similar when two
> > songs are played, and when they sound too similar, someone sues. If you
> > design a surface to undulate in a certain way that changes the way it
> feels to
> > the touch, can you claim distinctiveness that you can copyright? If the
> > digital design is exactly the same, but the material you use alters the
> > feel, smell, taste, appearance, toxicity, weight, strength, and so on,
> can it
> > be copyrighted?
>
>It'ss my understanding from reading the copyright FAQ
>(http://www.copyright.gov/faq.html) that copyright protects a work and
>all derivative works. Nobody but the holder has the right to prepare
>derivative works.
>
>In the PDF doc referenced in question 48, it says that a sculpture
>based on a protected drawing is a derivative work rather than a new
>work, and therefore isn't allowed. I'd imagine that 'a fortiori', a
>prototype made from a protected CAD design is also derivative,
>regardless of the material used or any modification to the design.
>
>But if a CAD design is in the public domain, then it gets much harder
>to meaningfully protect any model built from it. As far as I can
>tell, a model built from the data should be copyrightable as a
>derivative work, since a photo of a public-domain painting is. But
>that wouldn't stop anyone else from making another model from the same
>data, just as you can't stop anyone else from taking another photo of
>the same painting (or Elvis sighting, per question 58).
>
>So the copyright on that first model wouldn't be incredibly useful: it
>stops people from selling pictures of _your_ model, or from reverse
>engineering it, but it doesn't stop them from making their own model,
>whether or not they make any change to the original design or the
>build material.
>
>--
>-Sheba
>Bathsheba Grossman (831) 429-8224
>Sculpture bathsheba.com
>Creative prototyping protoshape.com
>
>
>For more information about the rp-ml, see http://rapid.lpt.fi/rp-ml/
For more information about the rp-ml, see http://rapid.lpt.fi/rp-ml/
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