Copyright Litigation in the 3D Space: Why Aren’t There More Winners?

Creators, brands, and businesses operating in the 3D space are increasingly choosing to pursue legal action in response to infringement of their intellectual property (IP) rights. This has sent IP law to the foreground of disputes ranging from Hermès’ NFT Trademark Suit to stolen 3D models popping up on platforms such as TurboSquid and Sketchfab, where user generated content (UGC) is sold for profit. While we have seen positive signs like the Hermès dispute ending in a verdict celebrated by advocates of IP law, there is a long way to go before established copyright laws can move the needle enough to help resolve the average case of 3D IP infringement.  

Examples of the “MetaBirkins” sold without the fashion house’s permission.
Credit: M. Rothchild

The degree of originality required has long been used to successfully rebuke fair use arguments in court. In 1980, Art Rogers captured the photo of a couple and their string of puppies which would become a hit, while also stirring up one of the most famous original cases of copyright infringement; Rogers v. Koons. From gracing the cover of the Los Angeles Times, to popping up as a three-piece sculpture set by globally renowned artists Jeff Koons (which sold for a total of $367,000USD), Rogers had lost control of his original work. Once he sought legal counsel, the court swiftly deemed substantial similarity enough to strike down fair use arguments, awarding Rogers damages associated with the copyright infringement.

Rogers’ photograph vs. Koons’ art piece

However, in the digital age, things aren’t as simple. Even when IP misuse is identified, enforcement can be difficult. The internet makes it easy to distribute 3D models globally, and many online marketplaces, experiences, or games, are headquartered in countries with different IP laws, making it challenging for creators to pursue legal action.

More Content, More Problems

Another problem holding back the protection of 3D assets is the way that they are processed, and moderated, to begin with. No platform can screen incoming 3D assets in real time meaning that businesses are forced to choose between instant approval of externally uploaded assets, and a processing window during which moderators scan the work for problematic qualities. The first approach assumes that moderators will be able to retroactively catch stolen or manipulated assets, or that community reporting and explicit content detection alone can get the job done. The second assumes that human moderators can meet the speed at which content is being uploaded, without missing instances of IP infringement. Both approaches are often incorrect about their assumptions, leading to inefficiencies, and a lot of bad assets slipping through the cracks.

Nike IP used by StockX to create 3D collectibles, sparking a lawsuit led by Nike.
Credit: StockX

As virtual reality gaming and the Metaverse gain popularity, lawyers, and courts face challenges in applying intellectual property law to digital assets. Top lawyers weigh in, citing increased involvement in cases relating to 3D assets. Tracy-Gene G. Durkin, named one of the Financial Times’ “Top Ten Legal Innovators in North America,” noted an increase in clients concerned about virtual versions of their goods available for download from TurboSquid and similar 3D host platforms, prompting her questioning “how might brand- and patent-holders’ rights change with the expanding metaverse? And might these rights holders have to protect themselves in new ways?” Mark Radcliffe, Senior Counsel and partner at DLA Piper, the firm representing Nike in the behemoth StockX NFT trademark dispute, advises that major companies must start thinking outside the box – that is, if they wish to protect themselves both in the real world and in virtual spaces.

Forward Thinking

So, where does that leave us? Marc Beckman, best-selling author of “Comprehensive Guide: NFTs, Digital Artwork, and Blockchain Technology” suggests that “The biggest issue facing attorneys practicing intellectual property law will be establishing what rights are conferred.” These rights, and circumstantial specifics, have yet to be properly defined in the 3D world. Additional opinions echo this, such as in the instance of Tech and Intellectual Property Law Attorney Diana Bikbaeva of The Fashion Law, whose analysis of Generative AI and copyright infringement, stresses that these are “exciting new domains with a potential for policymaking,” but that we must wait for legislation to progress and catch up, “in the meantime [proceeding] cautiously and mitigating the legal risks for companies and end users.”   

In short, the legal environment has yet to catch up to the intricacies of 3D copyright enforcement. With many questions yet to be answered, it remains to be seen how established copyright laws will move the needle enough to help resolve the average case of 3D IP infringement. That leaves many of us with a sense of unease, but what we can do in the meantime is to demand a higher standard of moderation at the level of asset ingestion. If problematic 3D models are frequently rejected at the point of entry, they are essentially decommissioned.  it is clear that intellectual property law must evolve to keep up with the fast-moving technology of today, and we look forward to continuing to be at the forefront of supporting this progress.

Getting Involved

The Secur3D team has specialized in 3D for decades, working alongside content creators and major 3D platforms to advance the experiences millions of users enjoy every day. Our approach to 3D moderation is for every platform that wants to take back the time and revenue that is lost to asset theft, and the endless cycles or draining moderation practices that fall short of accomplishing their goal. We are developing new technology which leverages AI to automate tedious tasks while helping human moderators make accurate decisions, fast.
If you are interested in the opportunity to simplify content moderation once and for all, we want to hear from you. Say hello at [email protected].

Stay up to date