This article was previously published in The Times on 9 March 2017
The technology was on show at London Fashion Week — which raises the issue of design and copyright infringement
After London Fashion Week last month, it was the models’ 3D printed footwear and dresses that made headlines. But as 3D printing edges towards the fashion mainstream, presenting exciting new opportunities for manufacturers and designers alike, it creates new challenges for the protection of intellectual property rights. Who, for instance, owns the right in a 3D printed work?
How the process works is key. Sometimes referred to as “additive manufacturing”, 3D printing involves the layering of material via computer control to create a three-dimensional object. Items are designed in a computer-readable format known as a computer-aided design (CAD) file, usually through the use of a 3D scanner or specialist CAD software.
The fashion industry has traditionally relied on copyright and more recently design rights (registered and unregistered) to protect creative assets. The fact that the item is then created by 3D printing would not affect the underlying right in the design, but it does mean that other intellectual property rights may come into play; a separate copyright may subsist if more work is done to convert the design into a CAD file. If a user is able to adapt or embellish a design as they wish, either when printing themselves or when ordering a bespoke printed item online, the user may well have their own copyright in the work, making it risky for the supplier to adopt that feature for other items.
The law is often inconsistent in its approach to the issue. Copyright, for instance, will be infringed by any unauthorised reproduction, but many design rights, which protect the shape of three-dimensional designs, only prohibit copying of the designs for a commercial purpose; copying for personal use is not covered.
Where the designer retains control over the printing process, the use of 3D printing poses no more difficulties than any other manufacturing process. However, the nature of the 3D printing process and the new distribution models it opens up mean that the industry will have to be aware of the ease with which infringement could occur, and ensure that controls and processes are adopted that make it easier for infringements to be identified and policed.
There is also the question of trademarks and branding of 3D printed items. Much of the value to customers is not the design of the item, but the label it carries. It seems logical therefore that users of 3D printing technology should also be licensed to apply the brand to a printed item. In future, if I could download a CAD file from the Christian Louboutin website to 3D print my wife’s birthday present, would I be able to programme the printer to print the soles red?
Such developments may seem outlandish, and many people consider 3D printing to be a bit of a gimmick. However, as it moves to become mainstream technology, the fashion industry needs to be alive to the new legal issues it raises and be ready to deal with them.
Eddie Powell, Partner, Fladgate LLP (firstname.lastname@example.org)
Oliver Tobin, Trainee Solicitor, Fladgate LLP (email@example.com)