I was reading through an old post on the Patry Copyright Blog and in a comment [by Michael Eisenberg] found this gem:
The design of the Kikker 5150 bike (as shown in the below photo) is actually registered as a "sculpture" (VA 1-213-363 and VA 1-213-362).
The image on top is 3D rendering of a Google Earth photo of the Columbus Circle area of Manhattan, and a model made wih a 3D printer.
As one example of the uses to which OGLE software can be put, Eyebeam shows examples of 3-D models created from photographs of portions of Manhattan in GOOGLE EARTH (above).
Setting aside any issues as to copyrights in the photos themselves, could such models infringe the copyrights in certain architectural works? In general, U.S. Copyright law protects architectural works created after 1990, giving the owner of the copyright certain exclusive rights in the work, including the rights to make reproductions. However, Section 120 of the Copyright Act, 17 U.S.C. Sec. 120, provides that such exclusive rights "do[] not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place." (Emphasis added.)
Although a 3-D model of a city block does not appear to implicate the core of protection of architectural works, as it is not intended to be used to recreate the protected building, neither is it a "picture, painting, or other pictorial representation. Thus, to the extent any protected architectural works are incorporated in such a model, the model would appear to be a techincal infringement. Would the courts carve out an exception, by torturing the definition of "pictorial representation," deem it a fair use, or actually find an infringement?
Stay tuned!
Glenn Mitchell is head of litigation for the Schwimmer Mitchell Law Firm.
Admitting that design patent, trade dress and trademark protection are possible for fashion designs...Chia-Yu Chang of the Rebuttable blog tackles "Copyright protection for fashion designs."