3D scans made by Sketchfab community are fascinating. Considered as the photography 2.0, 3D scanning involves everything (art, buildings, cars, people, etc.) and raises legal questions. To help with any gray zone, we are publishing a series of articles on 3D scanning and the Law. This first article focuses on Cultural Heritage. While this is a fascinating topic, please keep in mind those posts are not a legal advice and I am not a lawyer.
Jerry Fisher is a photogrammetry enthusiast and resident of Sioux Falls in South Dakota, USA. On a nice day, he 3D captured full-sized bronze casts of Michelangelo’s and David, located in the Fawick Park and Moses, located in Augustana College, a private college of arts and sciences. The casts are perfect replicas of the illustrious Italian sculptor’s masterpieces and were gifted to Augustana College in the early 1970’s by a local inventor who became a wealthy entrepreneur. Shortly after Jerry published his models online, a representative of Augustana College claimed a copyright infringement and requested Jerry to remove his 3D file from the internet immediately. Augustana College recently responded to this controversy in a comment to Slate:
“Mr. Fisher did not seek the permission of Augustana College nor the City of Sioux Falls prior to pursuing the 3D reconstruction technology or before offering [the 3-D model] to others. … In October 2014, we reached out to Mr. Fisher to express our concern over his actions in light of the fact that he did not seek permission from the College, the City of Sioux Falls or the families of the artist and/or the Fawicks [the family who donated the statue]. At this point, Mr. Fisher made the decision to un-publish the 3D image file.”
We decided to bring the entire story in front of a panel of specialists:
- Michael Weinberg is a Vice President at Public Knowledge. He oversees PK Thinks, Public Knowledge’s place to explore long term trends and anticipate policy challenges. He also focuses on the policy implications of emerging technologies such as 3D printing and open source hardware.
- Professor Christopher Sprigman teaches intellectual property law, antitrust law, competition policy, and comparative constitutional law at New York University School of Law. He is a graduate of the University of Pennsylvania (1988) and the University of Chicago Law School (1993). His scholarship focuses on how legal rules affect innovation and the deployment of new technologies.
- Professor Bernard Frischer is a leading virtual archaeologist and the author of seven printed books, three e-books, and dozens of articles on virtual heritage, Classics, and the survival of the Classical world. He is the founding editor of Digital Applications in Archaeology and Cultural Heritage, an innovative online, peer-reviewed journal where scientists can publish interactive 3D models. He taught at UCLA, University of Pennsylvania, the University of Bologna and Beijing Normal University.
Here are three important definitions:
- Copyright law: The legal right given to a writer, composer, artist, or a distributor to exclusive production, sale, or distribution of their work.
- Public Domain: Artworks whose intellectual property rights have expired, have been forfeited, or are inapplicable. In general, artworks fall into the public domain 70 years after the death of author, or, for corporate works, anonymous works, or works for hire, 95 years from the date of publication or 120 years from the date of creation, whichever expires first.
- Public spaces and private properties: Public space does not mean public domain. An artwork showcased in a public space is not necessarily in the public domain and may have a copyright. Furthermore, an artwork showcased in a private property (like a Museum) is not necessarily copyrighted and may be in the public domain. Note that owners can eject you from their private property.
1. You can scan public domain artworks or their replicas and share them with the world
In 1999, the Bridgeman Art Library had made photographic reproductions of famous works of art from museums around the world (works already in the public domain.). The Corel Corporation used those reproductions for an educational CD-ROM without paying Bridgeman. Bridgeman claimed copyright infringement. In 1999, the district court has ruled that perfect replicas of public domain artworks are not copyrightable, if the reproductions are slavish or lacking in originality. Their decision was one of the most important copyright decisions affecting museums ever filed. The decision was based on both US and UK copyright law.
Coming back to Jerry, Michelangelo died in 1564 so all his masterpieces went in the public domain centuries ago. In October 1973, a local newspaper published an article about the statue scanned by Jerry. It says:
“The 18-foot, 3 ½-ton statue […] is believed the only exact bronze reproduction of Michelangelo’s David, according to Dr. Palmer Eide, retired art professor at Augustana College.”
There is no copyright on the original sculptures, and there is no copyright in the exact replicas of the original sculptures. Jerry did not have to ask for any permission and the College was wrong to claim a copyright infringement.
2. You can sell and protect your creations
a. Commercial use
You can make commercial use of public domain scans. You can either sell the 3D models or their 3D printed versions. Businesses have been selling pictures of public domain artworks for decades.
b. Copyrights
Originality is a condition of copyright eligibility and the caselaw Meshwerks vs Toyota considered the scan of an object as insufficiently original to qualify for copyright protection. That means that Jerry’s scan is not copyrightable and falls in the public domain. However, there are different improvements and creations that you can copyright:
- If you use a 3D modeling software to improve the sculpt and the textures of your scan, and if the improvements can be conceived of as severable, it increases your chances of copyright eligibility. In other words, the easier it is to see your improvements independently of the original scan (and the improvements are not just to make it more accurate), the better your case for copyrightability would be.
- If you add a creative content to it, you can copyright these substantial improvements, but the copyright will be limited to your modifications. For example, if Jerry adds wings to David, he can copyright his improvement.
- Finally, you can potentially copyright a 3D sculpt (model made from scratch in a 3D modeling software) of a public domain artwork. 3D models of public domain artworks can’t be copyrighted in the shape (public domain), but they could be copyrighted in the code. In the end, a 3D model is a piece of code and you can have a copyright in the creation, the same way that you would have a copyright if you went to the museum and sketched the sculpture accurately on paper. However, there is not any case law directly on point. Someone could argue that a super accurate hand modeled sculpture is insufficiently original to get copyright protection. But right now, there is not a strong reason to think that the argument would win.
c. Terms and conditions
What follows is based on the US law and could be different in other countries. As mentionned above, public domain artworks are not copyrightable. Art gallery owners can still use the terms and conditions to prevent anyone from accessing their collections in order to make scans for commercial use. The terms and conditions could prevent visitors from creating 3D scans, or selling scans. Visitors could potentially implicitly agree to the terms and conditions when walking in the gallery. Art galleries could also use online term and conditions to prevent anyone from making commercial use of their own scans that they share on online platforms like Sketchfab.
Finally, the terms and conditions is an unilateral contract that is not viral. You only have a contract with the person who downloads your file, or scans your collection. If this person shares a model with someone else who starts selling it, you won’t be able to hold the final reseller(s) liable for any damage, but only the person who downloaded your model, or scanned your collections. If your terms and conditions prevent him from sharing the scans, you can hold the person who downloaded the file liable for any damages caused, but not the person who received the model from him or her.
Please note that the Law differs from each country. If you have information about the law in a specific country, please share your knowledge by commenting this post.
The British Museum allows anyone to download their 3D scans for free on Sketchfab. That’s a great example of openmindness, and a valuable donation to Education.
We are proud to announce that we will join forces to organize a scanathon in May 2015. We will give you more information soon.
“Do not touch” is dead and Culturalmap.org is almost here 🙂
Corentin
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