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When is Intellectual Property not Intellectual Property

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Folks,

 

In the world of 3D Printing, there is an interesting spat between a 3D Print company and Katy Perry about who owns the IP/copyright for 'Left Shark' (this is the shark the dancer in a shark costume who made a bit of a **** up at the Superbowl half time show).

 

See this link for the background http://politicalsculptor.blogspot.co.uk/2015/02/politicalsculptor-retains-legal.html

 

Personally, I am not sure Perry can claim copyright on a suit and, unless she's registered design rights, wouldn't this represent prior art i.e. it's already in the public domain?

 

Thoughts?

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It is an incredibly murky part of copyright law, it is also an American case, meaning I don't really know the ins and outs. Unless the image/design of this "left shark" was very specifically put under copyright protection it will be difficult to defend. An image is easy to put under copyright, but very difficult to protect online, but this wasn't an image, it was part of a stage-set - the set probably was copyrighted, but it depends on the description of that set AND the limitations attributed in how far it can be defended, it is a case that has the potential to go to a judge and it is a case for that judge - They will ahve to decide how unique the image is.

 

At that point, have a look at this.

 

Weak claim, but the wrong judge could argue for the plaintiff anyway...

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It's an interesting period in the world of 3D Printing and scanning. As some of the key patents have lapsed, there are a plethora of low cost 3D Printers flooding the market which coincides with a step drop in the cost of scanning technology too.

 

So someone buys an object, scans it and then makes the scanned file available for anyone to 3D Print, and you have the analogy of what has happened in music with MP3.

 

How 'object owners' will stop the proliferation of their object is beyond me.

Edited by steveroberts
typo

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Personally, I am not sure Perry can claim copyright on a suit and, unless she's registered design rights, wouldn't this represent prior art i.e. it's already in the public domain?
I doubt that there is a single copyright involved, more likely there is a boatload of them including inter alia literary, artistic and performance copyrights, not forgetting broadcast and possibly more. A dance suit can perfectly well be protected by both literary copyrights (drawings/plans for the suit/its component parts) and an artistic copyright (if the suit is e.g. a one-off hand-made piece, analogous to a statute, painting <etc.> ).

 

Whether Perry can claim their ownership or not (all of them or only those in relation to the OP story) will be down to the minutiae of contracts framing her performance and its constituent parts (lyrics, music, choregraphy, costumes, etc.) After that, whether she can enforce them will be down to whether she owns them or not.

 

In that context, that letter by Perry's US solicitors would never pass muster in the UK in view of the Practice Direction for the Pre-Action Conduct ('PDPAC') of the Civil Procedure Rules, as a letter before action would need to disclose enough of the above (which copyright(s), proof of ownership, etc.) to fully understand and assess Perry's claim.

 

As regards the Superbowl disclosure, the US (and most other jurisdictions, incl. the UK and the EU) has a 12 months grace period starting fromt he first public disclosure (by the designer/inventor or with his/her consent) within which to validly apply for a registered design (a 'design patent' in US parlance).

So someone buys an object, scans it and then makes the scanned file available for anyone to 3D Print, and you have the analogy of what has happened in music with MP3.

 

How 'object owners' will stop the proliferation of their object is beyond me.

So far as the UK is concerned, the legal framework (including e.g. the small claims track of IPEC) is perfectly adequate for such an occurrence (it's actually better than the EU's, as unreg design rights in the UK are significantly 'better' for the rights owner relative to the EU's), and was recently strengthened by the Intellectual Property Act 2014, under which
One of the most controversial changes the Act introduces is the criminalisation of the offence of deliberately copying a registered design. The protection offered to registered designs under the Act is similar to the current protection offered to copyright and trade marks. Whilst controversial, the Act does include some safeguards, in that the copying must be blatant and deliberate, and an offending party will have a defence if they reasonably believed they were not infringing the design.
There's a decent enough Grauniad article about it here.

 

To answer your thread title, IP ceases to be IP when (I) technically, any rights framing that IP expire without recourse and (II) practically, when that IP becomes worthless and irrelevant. Not doing anything about ongoing infringement promotes (II), commonsensically enough (besides creating estoppel whilst running towards the limitation deadline).

Edited by L00b

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