Interview with Josh Wattles
Q: Josh, thanks for joining what I feel is a very important discourse for young inventors. How do you feel about new DIY movements that are popping up over the globe?
A: The greatest contribution of the dawn of the digital age will be the liberation of creation and distribution more directly into the hands of artists and other individuals. Digital tools connected to relatively accessible and high-performing computers are transforming the production and manufacturing elements of many art forms: music, film, photography, writing, illustration, models, animations and the full list is much, much longer. Digital distribution has streamlined the cost of multiples in some cases down to a zero sum. This alone is revolutionary. And finally, the Internet and the World Wide Web have enabled instantaneous worldwide mass distribution with the touch of a keyboard or the click of a mouse. This was the future and this future is now. DIY overwhelms traditional media and overcomes all of its boundaries and limitations. DIY is not a complete substitute to traditional mechanisms used in production, manufacture and distribution. But for the time being, DIY is the revolution. You tend to pay attention to revolutions and to the revolutionaries - - particularly when they are being successful at disruption.
Q: As you may know, a DIY topic that seems to get an increasing amount of media attention is the development of new and exciting 3D-printing technologies. What are your immediate thoughts on this?
A: We have a 3D plastic printer here in the office that we are experimenting with. It’s obviously an expensive and still delicate machine. The industrial versions have been an incredibly useful and game-changing development for folks making machines or physical goods of essentially any kind requiring prototyping or sample production. I think primarily because of expense, they have not penetrated the arts to the level of individual use and experimentation and I look forward to seeing more experiments in the arts using the devices. They are also in many ways the first transporters. Send a file - - get an object. The possibilities, just conceptually, are fascinating when the exchanges become as simple as posting a comment on deviantART.
Q: Many 3D modelers have joined the open source and Creative Commons movement, where non-proprietary and public domain designs are uploaded to 3D model giants such as Thingiverse.com. While truly public domain designs may be safe for others to distribute, modify, and print, what are some important items for young inventors to keep in mind related to ownership laws?
A: First off, there is a huge difference between patent law and copyright law and I am only a copyright lawyer. Most of the output from individually owned 3D printers implicates copyright law and not patent law. Copyright is now automatically conferred without registration as soon as a copyrightable work is fixed in any tangible way, which could include code on a hard drive or on a remote server. You can obtain a copyright in the changes resulting from transforming a two dimensional image into a 3D image as long as there was some human involvement by you in the decisions necessary for that conversion. But, if you can get that copyright, so can anyone else. So, for example, you can’t use without permission a file that produces a 3D object of a public domain symbol, such as a Celtic Cross. On the other hand, you are free to make your own 3D file of a real 1000-year-old cross in a cemetery someplace. Copyright is pretty complicated and not entirely intuitive. The best practice is to only use other people’s material if you have permission or if it originated more than 200 years ago. Creative Commons licenses (some but not all) provide the necessary permission. Direct permission is obviously the best practice and many publishers of files for 3D printing display explicit sets and definitions of permissions. And sometimes you can imply permission particularly when someone openly distributes a file with the intent that anyone can use it even if the file isn’t attached to a Creative Commons-type license. By the way, there is no “public domain” by and large for any work made since 1978. You can no longer “dedicate” something to the public domain after making it. You can license the work for any thing and any use and to everybody, but it is still a license that, maybe, can be revoked.
Q: One series of 3D models and derivatives based on a celebrity likeness can be found here, where Stephen Colbert encouraged modelers to create derivatives of his bust. Without similar consent, what issues might arise from publishing a 3D likeness of a real person on a major website as open source and public domain? Could I, for instance, upload a very realistic 3D model of my neighbor in a precarious and comical position after becoming irate when he does not return my shovel?
A: There is a set of laws in the Unites States (and similar ones in other countries) covering “Right of Publicity” or “Right of Privacy” that protect an individual’s name, voice, likeness and signature from commercial exploitation. The key word is “commercial.” Commercial doesn’t always mean that actual money was paid for something. For example, using someone’s face to promote something that in turn makes money through subscriptions could still be considered a commercial use. These rights can be licensed directly and indirectly. If Stephen Colbert says “use this face” then you can use it. As for you neighbor, making fun is OK as long as you don’t hurt them or their reputation. Many art forms enjoy the same 1st Amendment rights as speech and writing. These personality rights are subject to heavy 1st Amendment exceptions that permit commercial users to comment on or reference public figures by using their likenesses.
Q: How does fan art law play a role in 3D modeling? For instance, what if I want to create a free and open source 3D model interpretation of the Borg's headgear from Star Trek: The Next Generation as a personal Halloween costume? And what obstacles could I encounter trying to upload such a thing to an open source 3D model library online?
A: Fan art presents a whole complex of issues. There’s a video of a thirty minute presentation specifically on Fan Art available [here] that comes with an additional 30 minutes of Q&A. I think it’s pretty good as a full explanation (particularly since I’m the guy in the video). Borg headgear is as much of a copyrighted work as the script of a Star Trek episode. Before launching a public distribution of the 3D model, you might want to assess the risk. Looking at the video would help.
Q: Aside from copyright and trademark issues, what do young inventors need to keep in mind related to patents and their open source public domain 3D models?
A: As I mentioned, I am not a patent lawyer. Many of the improvements to the printers themselves, polishing tools, extruders, and even some supporting software all implicate patent laws. My only note as to patent: if you are making a tool that is novel [as in never made before] and you believe it will have substantial commercial value, go see a patent lawyer. If you are adapting something already covered by a patent for anything other than a single personal use, go see a patent lawyer. Some models could implicate design patents. But keep in mind that novelty (really something never done before) is a pre-requisite to patents.
Q: Do you have any additional advice for young innovators?
A: In any DIY situation there is always a robust conversation about fair use. DIY creators tend to be working with very low budgets and want to produce as big a bang as possible so they like to “borrow” material. Fair use is a concept in copyright and trademark law (not patent law) that permits a second user to use otherwise protected content because (i) the second use really changes the original or (ii) doesn’t impact the markets for the original, or (ii) is a commentary on the original or (iv) if only a small part of the original is used. Check out the video in the prior answer for some more about fair use or go to the links here. The main thing to keep in mind about fair use is that it is an exception to the general principle of asking permission from another author or owner. Just because a DYI creator is happy to distribute everything they do for free doesn’t mean everyone else should do the same or wants to be q hippie. And some artists simply want the respect from having been asked even if the second use was fair use. Be polite. Play nice.
Q: Thank you for your time, Josh. It is my hope that this interview helps our next generations continue along fruitful paths without encountering unnecessary legal issues.
Josh Wattles ($makepictures at deviantArt) has a rich history with the relationship between art, innovation, and ownership laws. Josh is Advisor in Chief for deviantArt, practicing and celebrated Adjunct Professor of Law for Southwestern Law School. Loyola Law School (Los Angeles) and now at USC Law School, and has served as deputy and acting general counsel for Paramount Pictures. Aside from a long list of other accomplishments, Josh worked closely on the Star Trek franchise while at Paramount. Josh recently gave a very informative presentation on Fan Art Law for deviantArt at Comic-Con 2012 in Artists' Alley.