3D scanning tech, both the software and hardware, is becoming more and more accessible. The pros that have been doing it for years just get better and better. Optimising and improving their workflows, while the newbies coming in learn fast and bring new ideas to the table.
It’s an exciting time where the boundaries of technology and realism are being pushed. But these aren’t the only boundaries being challenged.
Inevitably, lady justice enters the fray.
We get a lot of artists asking questions like, is it ok to 3D scan and upload a building from the street, a sculpture in the park, statues in Museums? Or what about uploading their shoe scan with the big Nike logo all over the side?
These kinds of questions all relate to laws and rights surrounding Intellectual Property, including Copyright and Trademark laws. As 3D scanning is a new and emerging technology, certainly within a legal context, the law has to play catch up and respond. This means interpreting it all can get a little murky.
But just before we get into it, here’s a little disclaimer, as recommended by our solicitors! Intellectual Property is a vast and very complex area of the law. It can get complicated, especially on an international scale. If you are in any doubt regarding intellectual property in a subject you’re scanning, consult your own legal representative.
With that out of the way, have a read below at our attempt to guide you through what you need to take into consideration when you’re out and about 3D scanning.
Copyright is central to the idea of 3D scanning. We’re ultimately creating digital 3D copies of real world subjects. These subjects, objects, sculptures, and art tend to be created by artists. The artists generally own the copyright to their work. So how do you know what you can scan and upload under the Standard Royalty Free license vs the Editorial version?
Let’s look at what copyright really means for 3D scanning. If you create something original, then you as the author most likely own the copyright to your work. There are exceptions, such as creating something when you’re employed, the employer will likely own the copyright to your work. But for the sake of argument, lets go ahead with the idea that the author owns the rights to their work and doesn’t sell them to anyone else. They will continue to hold the rights to their work for their lifetime, plus on average another 70 years following their death. Depending on which country they’re from. It can vary from 25 to 100 years so make sure you check. After which, it will enter the public domain and become ‘open for use’.
Take for example, an original sculpture created by Michelangelo, his famous ‘David’ statue that was finished in 1504 in Florence, Italy. According to Italy’s laws, the copyright expired 70 years after Michelangelo’s death. As he died in 1564, this would place the Statue of David, as well as all Michelangelo’s works, in the public domain and free of copyright by 1634. Unsurprisingly we see many replicas of this sculpture, as well as many of Michelangelo’s other famous works, all over the world.
3D scanning these sculptures, creating a 3D digital double and making them available to the public is then ok to do, even if you’re making money from it.
But if you’re scanning a statue of ‘David’ that is a copy, it can get a little complicated. Copies can be considered derivative works and have their own copyright attached.
What is a Derivative Work?
To be considered a derivative work and then claim copyright over it, according to the US Copyright Office, it has to be:
Meaning, if I create an exact replica of Michelangelo’s David, I cannot claim copyright over it. But if I make it different enough to be considered my own interpretation, such as creating a unique face, different pose, or add a pattern to it – then these individual elements I can claim copyright over.
The US and UK copyright offices have similar interpretations. From the UK Copyright Service Fact sheet regarding Derivative Works:
A great example is the instance of Jerry Fisher, a US resident and photogrammetry capture artist who scanned replicas of Michelangelo’s the statue of David and Moses. Moses was located in the bounds of Augustana College in Illinois, in the United States. Gifted to them in the 1970s by Thomas Fawick, a local inventor and entrepreneur. When Mr Fisher made these scans available for download and replication online, Augustana College felt there had been a breach of copyright and requested the scans be taken down and all evidence of them deleted.
Michelangelo’s copyright had long since expired. Plus, given both of these works were exact replicas; they could not be considered derivative works. With this in mind, Augustana College could not claim any copyright over the scans that Mr Fisher had created and as such, their demands were without merit.
Or were they?
The copyright over Michelangelo’s work is in the intellectual public domain (rather than the physical). So it’s available for anybody to do anything to – with the exception of where the work is located. If it were on private property, then you’d need to ask the property owner for access and to grant you written permission to do what you want to do with the end result. Such as giving you permission to sell scans of it online.
There was a lot of uproar online at the beginning of 2015, with articles being published about Augustana College having no rights in making the demands they did. Including those at artnet news, slate.com and 3ders.org. However, what wasn’t considered is where the statue was located. Depending on how publicly accessible the statue was, whether that area could be deemed as ‘dedicated’ to public use or on private Campus property, Augustana College can dictate a photography policy and restrict permission and use of any photos, or 3D scans, taken. If they never had a photography policy, or didn’t make it available, then Mr Fisher would likely have retained copyright over his scans. However, if they did in fact have a policy, which outlined limitations, and the statue was on private College property, then the representatives at Augustana College would be within their rights to ask for the scans, and images, to be taken down.
Let’s get this public domain business cleared up. When the copyright expires, it enters the intellectual ‘Public domain’. This is not referring to the physical public domain, such as a National Park or sidewalk. This is a term that can be easily misinterpreted, but it specifically applies to the realm of copyright and intellectual property. It’s an important term to understand in the locality of where you’re scanning. It generally means the copyright is now ‘open to use’, so free to 3D scan as you need. But as always, check how this term is interpreted within your locality.
So if the public domain is purely intellectual in this instance, what does that mean for scanning subjects in public places like public parks, streets, Museums, Art Galleries, or other publicly accessible institutions?
This brings us to the phrase ‘Freedom of Panorama’.
The idea of Freedom of Panorama exempts photographers, capture artists, and painters, from breaching copyright when they create their own images and scans of works of art or buildings that are permanently located in a public space. Though this is the crux, this phrase is not explicitly outlined but can be interpreted differently within the copyright laws of countries around the world.
Some are more explicit than others. Germany has the term Panoramafreiheit that translates directly to ‘panorama freedom’ and permits the ability to create images of sculptures and art that are permanently located in a public space. In Germany, Museums are not considered public spaces, so a 3D capture artist would need permission to scan on their premises. This is the case for most museums around the world. Even if they are deemed public spaces, you normally need their permission if you plan on taking in a few lights, a tripod, a camera, and start scanning their exhibits! However, if you notice a sculpture permanently located in a public park in Germany, then it’s likely you can photograph and 3D scan the subject.
In the United States, their copyright law only includes permission to create images of buildings, without needing the approval of the architect or copyright holder. Making 3D replicas on the other hand is not permitted. Which largely affects 3D printing. It’s not known whether this applies to 3D replicas created using software. So if you’re 3D scanning a building, it’s a grey area. A great example is the ‘Charging Bull’ sculpture in New York city, covered in detail in this article.
In countries like Italy, France and South Africa, there is no Freedom of Panorama taken into consideration. There is no exemption for photographers, capture artists, or painters, when creating their own images of any works, buildings, art, or sculpture in the public space. So no luck if you want to 3D scan the Leaning Tower of Pisa and upload it to SnapTank. You’ll need explicit permission from the local Italian Soprintendenza.
I’ve covered a few examples here, but you should as always check the relevant local copyright laws and whether Freedom of Panorama can be interpreted.
For more on this, take a look at the Wikipedia Commons article on the subject, found here.
Below is the diagram found on Wikipedia, outlining Territories worldwide and their Freedom of Panorama policies if known.
Logos, brands, and trademarks, such as the Nike ‘tick’ logo are protected and considered within Intellectual Property law as a ‘trademark’.
Trademarks are important to a business. They represent meaning and identity for a particular brand and convey an image about the brand to the world.
Take BMW for example. They have built up a reputation of building reliable, fast, luxury cars, with German precision and engineering. By looking at the BMW logo, we instantly connect these ideas to the carmaker. Their logo is a trademark of their business and for good reason. It’s taken many years, a lot of marketing, and consistently delivering upon these ideals, for BMW to instantly convey this meaning through their logo. If somebody were to take this and present it in a manner that is counter to these values, it’s undermining the business and all the work that went in to building up their reputation.
It makes sense that companies can trademark their visual identity, be it a logo, font, colour palette, or design, and protect it from being copied or used to the detriment of the business.
When it comes to 3D scanning, yes, you can 3D scan a BMW and upload it to SnapTank. But only if it is an accurate and high quality 3D scan, represents the brand appropriately, and only by listing it under the ‘Editorial Use License’. This limits the use of the scan and protects the brand and image of BMW. Any scan that depicts a brand negatively will be taken down.
Take a look at the Editorial Use License clause within the SnapTank Royalty Free License for more on the editorial limitations of use.
The design of a product can come under copyright protection. This is reflected internationally as ‘industrial design’ or in the United States under a ‘design patent’. Continuing with the BMW example mentioned earlier, not only would the logo be covered under trademark law, but the physical design of a car itself is also under copyright protection.
This doesn’t necessarily limit your ability as a capture artist to 3D scan a BMW and upload it under the ‘Editorial Use License’. But it does limit the use of the physical design and shape of the car for those wanting to incorporate it into something like a game for example, where you’ll be making commercial use of that design.
If your 3D scan was of a BMW 5 Series E12, designed and made between 1972 and 1981, the design copyright expired 25 years after the design was registered. Theoretically, you could then remove the BMW branding from the vehicle design, and make use of that car in 3D space. Be careful however, as there may be additional limitations or protections that a corporation has successfully pursued in order to protect a particular design.
The expiry over copyright of a physical design is different for each locality. The Hague System for the ‘International Registration of Industrial Designs’ protects a registered design right for 15 years from the date of registration. Their aim is to create an international and simple method of protecting industrial designs that covers multiple international territories. This differs from country to country, where a registered design right is protected for at least 10 years and in some cases is divided up over renewable periods.
Either of these is far less than the 70+ years of copyright protection given to works of art, literature, film, writing, photography, or sculpture.
What this means for you as a capture artist is more relevant towards something like a Kitchen Mug. It’s a generic item, but could be designed in a particular way and that design could be protected. Take the Cristobal Karich designed ‘Punch Coffee Mug’.
This isn’t just a generic kitchen mug. It has been designed and crafted in a unique way that sets it apart from all others. There are identifying features that make it unique enough to be protected under ‘industrial design’ or a ‘design patent’. On Cristobal Karich’s website it displays what can be assumed as the date of creation as 2006. If the design was registered in 2006, under the Hague system, the design right would expire in 2021.
After this date, as a capture artist, you could then 3D scan this mug and sell it online without having to worry about breaching any copyright.
If you’re planning on scanning all the items in your household – awesome. Just be sure to check whether any of those items have a valid design copyright, either in the design of the product itself (industrial design) or in the design of the graphic or image that may be printed or painted onto it (general copyright).
For more on industrial design copyright, The Design Trust has an excellent blog on Intellectual Property and Design.
The final section of this blog covers 3D scanning and patents. Many will be familiar with the idea of what a patent is.
A patent grants inventors exclusive rights protecting their original inventions for a set period of time from the date of their successful application. To get a patent, you have to apply and pay for it in each territory you want it to cover. A patent that has been granted in the United States for example, doesn’t necessarily mean that inventor also owns the patent for their invention in Australia or India.
Patents are granted to new inventions that can be made or used. They have to be inventive, rather than just a simple modification made to something that already exists.
Patents can apply to the material, the mechanism inside a working gadget, which would only be evidenced by looking inside it. So it’s difficult to tell when a patent would apply to a 3D scanning situation. Each one is unique and unlikely to affect a capture artist.
It’s challenging to condense a topic as complex as intellectual property into a blog. We’ve covered copyright, property rights, trademark, industrial design, and finally patents. Before going ahead with a scan, consider whether there is any copyright in the subject. Is it under copyright, or a trademark? Is the design owned and can you copy it? Where is the scanning subject located, on private property?
Hopefully you’re now more confident when it comes to considering the intellectual property rights that can affect the subject you’re scanning.
If in doubt, as always, it’s best to consult a legal professional. Ask for permission to scan as well as getting written and signed consent from the copyright or property owner to do what you want to do with the end result.
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