Time For Fashion Designers To Buckle Up For 3-D Printing

Law360, New York (October 17, 2013, 11:48 AM ET) -- Today's high school students are learning the skills needed for 3-D modeling, and copying is already being encouraged online: In a video posted at 3dprinter.net, a man takes off the sunglasses he is wearing and shows how to make a 3-D copy in a few easy steps.1

3-D printing is still far from mainstream, but prices of home copiers are falling rapidly, with home 3-D printers available at Staples for $1,299.99, and smaller companies already offering cheaper options, such as the Assembled Printrbot Simple, available for $399, and unassembled kits available for as low as $200. Online 3-D printing services are growing rapidly, with Startasys, based in Eden Prairie, Minn., estimating its profits will double this year, to $462.6 million — and reportedly agreeing to buy Brooklyn-based 3-D printer MakerBot for at least $403 million.2

What is a fashion designer to do? Innovative designers are using the expanded creativity allowed by 3-D printing to design effects complex enough to be potentially protectable under copyright and design patent law — and, as a practical matter, very difficult to copy. For example, Dutch fashion designer Iris van Herpen's highly futuristic designs feature sculptural ruffles and scales that fully exploit the new medium,3 as does Joshua DeMonte's architectural jewelry, such as his 3-D-printed bracelet shaped like a fanciful building, shown as part of the "40 Under 40 Craft Futures" display at the Renwick Gallery, in Washington, D.C.4

It can be notoriously difficult to protect fashion items under copyright, but designers are exploring the kinds of 3-D printed items that should be suitable for protection. For example, Bow & Drape is offering 3-D-printed belt buckles.5 For decades, belt buckles have been copyrightable, provided they survive the useful article test and have at least minimal originality.6

As to the useful article test, copyright law will protect pictorial, graphic or sculptural features that are conceptually separable from the useful functions of an article and are capable of existing independent of those useful functions.7 As to originality, the threshold for copyright protection is quite low. But to be protected against infringement, some genuine originality is required. A copyright on a pin that is made to look just like a bee in nature will not stop others from making similar bees.8 3-D manufacturers are already making key pulls, sunglasses, jewelry and other items potentially capable of withstanding these tests.

As to enforcement, copyright rights allow the owner to send Digital Millennium Copyright Act takedown notices to Internet service providers to stop internet postings that infringe copyright rights and no copyright registration is required.9 At least one DMCA takedown notice has...