Op-Ed | Brands Must Offer 3D Printable Designs or Face DIY Counterfeiters

Fashion must react quickly to changes in technology and make do-it-yourself, 3D-printable designs in order to avoid a coming flood of infringement and, instead, benefit from the rise of 3D printing, argues Rose Auslander, a partner in the Intellectual Property department of Carter Ledyard & Milburn LLP, a Wall Street law firm.

Asher Levine sunglasses being produced by a 3D printer | Source: Makerbot

NEW YORK, United States — As the prices of 3D printers continue to drop, savvy consumers are already making their own do-it-yourself counterfeits at home. In a video posted at 3dprinter.net, one even takes off the sunglasses he is wearing and shows how to make a 3D copy in a few easy steps. Indeed, consumers may soon be copying sunglasses and jewellery from fashion designers from Armani to Yves Saint Laurent. It would be wonderful to think that 3D printers will only increase creativity as consumers design their own printable fashion items, but if New York’s Canal Street (an infamous market for counterfeits) is a guide, once 3D printing is readily available, hordes of consumers will want copies of prestige items. So far, fashion has continued to thrive while industries like music and books have taken a beating from the Internet. Now, fashion needs to take a lesson from the failure of those industries to react quickly to changes in technology.

Designers who want to lead fashion into the future need to get ready for the world of 3D printing now. The public already is fascinated with 3D printers. At the CES consumer electronics show in January of this year, crowds surrounded every booth owned by a 3D printer manufacturer and the CUBEX 3D printer won CNet’s Best of Show award for Emerging Tech. While 3D printers are not yet in most homes, some say they will be the PC of this decade — that as soon they become affordable, they will be everywhere, growing ever more sophisticated. Today, home 3D printers are available at Staples for $1,299.99, and smaller companies already offer cheaper options, such as the Assembled Printrbot Simple, available for $399, and unassembled kits for as low as $200. Nor is the technology know-how needed to use these printers out of reach. High school students are starting to learn 3D modeling.

It isn’t even necessary to buy a 3D printer. Consumers can pay 3D printing services to copy items for them. Even now, consumers can go online and design their own eyeglasses and jewellery, which online companies then 3D print for them. Even 3D printing services that want to be legitimate may find it difficult to screen requests for infringing designs.

3D printing services have already faced infringement claims. Just this past February, HBO sent the 3D printing service nuPROTO a letter warning it to “cease and desist from continuing to produce and offer for sale the ‘Iron Throne Dock,’” a 3D manufactured iPod dock inspired by HBO’s Game of Thrones Fantasy TV series, and claiming that the Iron Throne Dock “will infringe on HBO’s copyright in the Iron Throne.” It has been reported that the offending Iron Throne Dock is no longer for sale, although a picture of it still appears at nuproto.com, along with this testimonial: “‘…nuPROTO has created the iThrone, a dock perfect for HBO’s Game of Thrones fans,’ – Jill Pantozzi, www.themarysue.com.”

Fashion designs often are not protected by copyrights or design patents, but like HBO, where designers can track counterfeiting of their copyright, patent, or trademark rights, they can send cease and desist letters (and, under U.S. law, send Digital Millennium Copyright Act , or DMCA, takedown notices for postings that infringe copyrights). They can also sue, if necessary. If these tactics are used against individuals or small companies, however, they can alienate consumers, as shown by the declining popularity of the Recording Institute of America (RIAA) after the organisation sent DMCA takedown notices and suing individuals for “sharing music” over the Internet.

Fashion designers saw the fallout when record labels responded to a new technology by insisting on continuing to sell $20 CD’s in brick-and-mortar stores and trying to sue Internet copying out of existence. Designers know that by the time iTunes was established, the music industry was losing billions of dollars due to rampant peer-to-peer file sharing. And smart designers aren’t waiting to be scooped by 3D counterfeits — they are already positioning themselves to benefit from 3D printing.

Asher Levine, known for his designs for Lady Gaga, Black Eyed Peas and Bruno Mars, teamed up with 3D printer MakerBot to create print-at-home sunglasses. These designs, promoted by being printed for models during Levine’s runway show, were then readily available from MakerBot at thingiverse.com. This is a prototype of one way designers and 3D manufacturers can work together to democratise the creation of fashion for mutual benefit. As iTunes has shown, if consumers have access to easily accessible, reasonably priced goods, they are much less likely to go through the time and trouble needed to infringe.

Other innovative designers are using the expanded creativity enabled by 3D printing to design effects complex enough not only to be potentially protectable under copyright and design patent, but also very difficult to copy. For example, Dutch fashion designer Iris van Herpen’s highly-futuristic designs feature sculptural ruffles and scales that fully exploit the new medium, as does Joshua DeMonte’s 3D-printed bracelet shaped like a building, shown as part of the “40 Under 40 Craft Futures” display at the Renwick Gallery, in Washington, D.C.

To further ward off fashion-design infringement by online 3D printing services, designers also can pressure online 3D printing services to offer the kinds of rights-owner protection devices eBay provides, or the kind of claim-your-content program provided by YouTube — or to take the approach of the designers at suuz.com, who have posted a gallery of their own 3D-printing jewellery designs which consumers can then personalise, an approach that limits the potential for copyright and design patent infringement.

Of course, when designers face damaging piracy by willful counterfeiters, they may have no choice but to go to court seeking swift injunctive relief, as they have always done, although given the portability of 3D printers, it may be harder than ever to track down the sources. But if designers embrace the do-it-yourself ethic and provide innovative 3D designs easily accessible to consumers, they should be able to avoid a flood of consumer and small company infringement — and, instead, benefit from 3D printing.

Rose Auslander is a partner in the Intellectual Property Department of Carter Ledyard & Milburn LLP and a member of the firm’s Fashion Law group. This discussion reflects the realities of US law.