In 2014, Scott Kildall and Bryan Cera, both 3D-fabrication artists in the United States, gave the world something they considered a gift and homage: a re-creation of Marcel Duchamp’s personal hand-carved chess set. It had come from an earlier work of Kildall.
“In 2010, I made Playing Duchamp, which was a commissioned art project,” said Kildall. “I reprogrammed an open-source chess engine to play chess as if it were Marcel Duchamp. I worked with his 72 recorded chess matches, all tournament games that he played in, to modify the algorithm to resemble his style and skill level of chess play.”
In the process of researching Duchamp’s chess life, Kildall found old pictures of Duchamp’s own hand-carved chess set, created around 1917. He loved the aesthetic, and wanted to recreate the beautiful objects. So Kildall turned to another digital-fabrication artist, Bryan Cera, to work out how to model 3D-printable versions derived from the archival pictures.
Cera was into it. “I was intrigued by the challenge of generating 3D models from an archival photograph,” he said. “The image we referenced for the pieces was a low resolution scan of a grainy black and white photograph. Not quite the ideal blueprint for building a detailed 3D model, but it did pose a fun challenge... Each piece began as traced silhouettes from the image—then extruded into a 3D form. Some details were then extrapolated from that photo, and a couple of other references of the set we were able to find.”
Cera and Kildall managed to do a faithful re-creation over a month of working on the project. “We immediately decided that if we re-created the set as 3D models, we should share it online,” said Cera, who compared the project to Duchamp’s famous print of a mustachioed Mona Lisa. “I felt like what we were doing was no different than Duchamp’s own La Joconde Aux Moustaches, where he appropriated what is arguably one of the most famous works of art ever.”
They published instructions for the completed set, which they called Readymake, to Thingiverse, a site which allows creators to share 3D models. (Thingiverse is owned by the 3D printer manufacturer, Makerbot.) With that, they moved on. As something made before 1923, it could safely be considered not covered by copyright law in America.
Not so in France.
In September 2014, Kildall and Cera received a legal threat from the Estate of Marcel Duchamp, telling them to remove the files from Thingiverse, remove the blog post discussing them, and make an offer of restitution for damages. The threat seemed to be very real; they were quite possibly breaking French law.
Kildall was shocked. “I saw his chess set as a personal possession, like a valise in an old photograph.”
That wasn’t an unreasonable thing for Kildall to think. Back when Duchamp made his chess set in Argentina, nearly a century ago, copyright was still a registration system around much of the world: you had to send in a application with proper documentation to claim copyright in each country where you wanted to have a copyright. Duchamps’s set wouldn’t have been copyrighted in Argentina, but would have been in France, which started the first international treaty on Intellectual Property more than 30 years earlier, called the Berne Convention.
Under Berne, registration was seen to unduly burden small creators, who were often ripped off in other countries where they couldn’t afford to file. With the modern Berne Convention on intellectual property, registration wasn’t merely eliminated. Everything a person does, from writing a book to doodling on a napkin, is instantaneously granted a copyright for the duration of life plus 70 years—in the United States and in France. But the U.S. only joined Berne in 1989, and by the time the Copyright Term Extension Act passed 10 years later, everything prior to 1923 could be safely considered Public Domain in America. That would include the Duchamp chess set.
While the Berne Convention now rules the world in terms of international intellectual-property law, it has made awkward bedfellows out of conflicting national legal systems.
The French legal principle that best matches America’s concept of copyright law is Droit D’auteur—which, while it is usually translated as their copyright law, literally translates to the Rights of the Author. And that’s important; it’s coming from a completely different basis than American Copyright law, which is about economically incentivizing creation.
In French law, “You don’t talk about a copyright, the economic usefulness of a good, you talk about a philosophical element,” Matthieu Farcot, a French intellectual property lawyer, told me. “It tries to protect the stature of authorship.”
Often called Moral Rights, French creators and their heirs are entitled not only to remuneration, but a high degree of creative control on how their works are used or represented in the world. It was this idea, of controlling how the artist's creation is used by others, that brought the estate to issue their Cease and Desist against Kildall and Cera. Farcot is particularly interested in how 3D printing is influenced by the mishmash of Berne laws governing the world. I spoke with him while he was waiting on an Ultimaker print of toys he was giving children in an upcoming weekend workshop he was teaching.
“It’s not black or white,” Farcot said. “It’s not easy for the creators, Kildall and Cera, to... say they should go ahead, go to court and they will win easily.” Facing a ruinously expensive legal fight thousands of miles and an ocean away, Kildall and Cera backed down. They quietly removed the files from Thingiverse, and negotiated a resolution with Duchamp’s heirs.
If the case was too hard to fight in French court, it would have been almost too easy to fight in U.S. court, the jurisdiction that could affect the lives of Kildall and Cera. “So under U.S. law, the chess pieces are absolutely in the public domain... and a U.S. court won’t honor French moral rights. I don’t see any practical way for the Duchamp estate to sue over the 3D-printed chess pieces in a U.S. court,” said Mitch Stoltz, a senior staff attorney at the Electronic Frontier Foundation who specializes in intellectual property.
“Under Berne, it’s the shorter copyright term that prevails,” Stoltz told me. “So generally, if a work is public domain in one country, a rightsholder from a country with a longer term can’t sue for infringement in the shorter-term country.” When the United States joined Berne in the 1980s, it claimed that existing laws on slander and libel would cover what Moral Rights did in Europe. But libel and slander are extremely difficult to prosecute in U.S. Courts because of the First Amendment; the U.S. hadn’t been forthcoming about its ability to enforce anything like Moral Rights in the French conception.
So what could the practical consequences have been, had Kildall and Cera ignored their conflict with Duchamp’s heirs? Mostly exile from France. “I thought about the consequences of being barred from France for life, which would be an amusing story to tell. I could live with this, but it is not a desired outcome,” said Kildall, who vacationed in France this year.
Makerbot, too, might have had to tangle with more legal trouble if they wanted to continue hosting the files on Thingiverse. In theory, the French government could request French ISPs censor access to known hosting location of the files as the result of a court order, but making them actually unavailable in France would have been a practical impossibility. “The core thing is that technology always has an advantage in speed and diffusion,” said Farcot, the French intellectual property lawyer. “Technology sometimes exposes the protected good to new options that are not necessarily covered by the legislative framework. So it takes time, but I don’t see the system exploding to the benefit of free 3D forgers… (in a way) that will allow you from one day to the other to start printing reproductions of Rodin statues and selling them for your own benefit, for example.”
But a search on Thingiverse revealed no fewer then 18 Rodins, several of The Thinker with alternative heads, including a Rubik’s cube and Jar Jar Binks. “I think the forgers of 3D-printed models, as you see on Thingiverse, will face the same kind of difficulties that musical diffusion platforms have faced some time ago. The more 3D printers will be widely spread, the more the impact,” Farcot said.
Which means, things are poised to get, legally, quite weird as the 3D consumer world grows. In particular, copyright comes with related rights; not just who can copy a work, but how that work can then be used by others. As we now grapple with things like the broadcast rights or derivative works of music or video, we will be asking what these rights mean with a printable physical form, because now we can be said to broadcast and remix objects.
Kildall and Cera aren’t finished exploring these questions either. This year they created a work meant to comment on the destruction of last year’s work. Relying on both France’s strong protections for Parody, and Duchamp’s own sense of humor, they created another set, Chess with Mustaches. By creating a mustachioed chess set, they could poke fun at the whole thing—but they didn’t distribute the 3D models, so as to not antagonize the estate.
“Marcel Duchamp died 47 years ago,” said Kildall, “Yes, copyright claims seem anti-Duchamp, but then again he lived in a different era, before the rise of computers and cat memes on the internet.” Or the ability to email 3D forms across national borders in a matter of seconds. It’s hard to imagine how a person might have even explained the situation to Marcel Duchamp.
“It’s not a lawless thing that all of the sudden appears,” Farcot said. “There’s already a whole framework around what citizens can do and cannot do. [3D printing] is a new medium of diffusion, definitely, so the economic impact is huge, but it’s not completely new.”
If entering this framework means printable physical objects are going to go into the the same global legal morass as music and software have, we face interesting times indeed.