This blog was written by the Law On The Runway intern, Waqas. He has been assisting in the preparation for Trending Legal Issues in 3D Printing, an upcoming California Lawyers for the Arts event in Palo Alto, open to both attorneys and non-attorneys. As with all our posts, this is just general info and not legal advice. Please feel comfortable reaching out with any questions that you may have to Rachel at [email protected]. 

I do. Whether I want to or not, I do. With the new wave of 3D innovations taking our relationship with technology to yet another level, we have no choice but to accept the fact that we are married to convenience. The hype behind 3D printing has been around for quite some time now, leaving a mystery as to what it really is or what it can do. 3D printing is a process of making a three-dimensional solid object of virtually any shape from a digital model. Virtually anything…including jewelry, lingerie, and now attire.

Although 3D printing is still far from mainstream, it is becoming more and more accessible to individuals. Home copiers being sold at stores like Staples for the price of a Macbook are leaving us with a stronger urge to get to know them. Smaller companies are offering even these 3D printers at even lower costs. Before we even get to know 3D printing, we have to know what it’s all about. We have to do our own research to be better prepared.

3D printing has been in the works quite some time now but went unnoticed in the fashion arena until Dita von Teese’s affair. Francis Bitonti was the architect behind Michael Schmidt’s and Dita von Teese’s affair that was exposed in a March fashion show. In this show, Schmidt designed the world’s first fully-articulated 3D printed gown that Dita von Teese displayed.

3D was introduced to the fashion world in a bold and abrupt manner. The implications of 3D printing on the fashion arena has yet to be seen. This new revolution has the potential to bring countless new opportunities to designers and consumers. Beginning with the cutting of lead time for designers, allowing them to produce quicker and in smaller quantities if necessary to easily personalize their products for the customers convenience. More and more designers are taking an active role in this movement. Kimberly Ovitz has experimented with 3D printing to display her designs, as well.

Meet the Family:

Today, numerous companies are coming out of the woodworks bringing forth solutions for designers and more so, for consumers. Companies like Makerbot are taking the lead in the fashion industry by partnering with designers to bring the most innovative designs. Another company working strongly in the transition of 3D printing into the fashion world is Shapeways, which has become most designers’ go-to resource. Schmidt and Bitonti used Shapeways to create Von Teese’s dress.

Taking it to another level, designer Asher Levine, collaborated with 3D printer MakerBot to design sunglasses his models wore during his New York Fashion Week shows. These designs were later made available from Makerbot on thingiverse.com. Similarly, Ovitz 3D jewelry was sold on Shapeway’s own Etsy-esque marketplace.

The Prenup:

Through every technological revolution industries are forced to adapt to new ways and make way for the step children. The music industry has dealt with it’s share of copyright laws and has adapted to a somewhat advanced standard of procedure for music distribution. The biggest concern with 3D printing entering the realm of fashion is where that leaves fashion designers, and with what.

Most innovative designers today have already began expanding their product lines to incorporate 3D printing as a tool to express their creativity. Some have even gone to complex levels of design to insure not only their smooth transition into the marriage but their assurance that they will not lose their assets. To ensure their safety, designers must produce products protectable under copyright and design patent laws. Illustrating this concern, designer Iris van Herpen’s contemporary designs feature sculptural ruffles and scales that exploit this niche.

We all know it can be strenuous to safeguard your assets, which for fashion designers, are their designs. To ensure their safety, most designers have been printing 3D items that fall within the protection of their copyright rights. Most new designers are offering products such as belt buckles which are copyrightable due to their passage of the useful article test. In order to utilize the infringement protections, the designers must include originality into their designs.

Copyright law protects pictorial, graphic, or sculptural features that can be separated from the useful functions of an article.  They must be capable of existing independently  as ornamental works of art to defeat the useful article test, as useful articles cannot receive a Copyright.  Protections extend to life of the author plus 70 years, or 120 years, depending on the nature of the nature of the creation (a work-for-hire on behalf of a corporation would receive 120 years protection since there’s no life to measure). Within this period, any infringement can be enforced under the Digital Millennium Copyright Act by sending takedown notices to the infringing parties without the requirement of registration.

Copyright and design patent laws have broad enough requirements to potentially protect designers under just the existing IP laws but hardly with full protection. For example, Justin LeBlanc, Project Runway finalist, created his entire collection with 3D printing for New York Fashion Week. His collection was inclusive accessories such as neckpieces which are protected by the Copyright Act as a work of art. Belts on the other hand require a separable element to gain copyright protection. But his designs could further qualify for design patent protection which would give him exclusive rights for about 14 years. However, this process is extremely stringent while fashion trends change by the minute. Please refer back to our design patent blog post for more information.

Happily Ever Maybe?

I do. We are married to our conveniences and 3D printing just happens to be another part of them. Thus far, the introduction of 3D printing has without a doubt brought opportunities to designers but along with it come red flags. Nothing a prenup can’t fix. Let’s hope our attorneys drafted prenup is as strong as our desire for convenience towards a prosperous future and a happily ever until-the-next-big-thing.