Benchy, IP, and 3D Guns
January 23, 2025
After remixes of the famous 3DBenchy model started being pulled from Printables, LEGIO members wrote in asking if this kind of IP war is possible in 3D guns. The answer is no, thankfully.
The 3DBenchy model, “a popular benchmark for desktop FDM 3D printers,” has always been offered under a Creative Commons BY-ND 4.0 license, which forbids the redistribution of remixes. Since 2015, the license was never enforced by the work’s original “owner,” Creative Tools, but in March of 2024, Creative Tools was acquired by NTI Group. Now the license suddenly matters.
Though no one agrees with restricting open source remixes and republication of Benchy models, we can at least use this moment to explain American copyright doctrine. Unlike most open hardware projects, Benchy could be, within the meaning of the Copyright Act, a purely creative sculptural “work,” and therefore copyrightable subject matter. Let’s examine the technicalities of that simple conclusion.
Under the Copyright Act, the intangible idea of a whimsical, cartoon, nearly-personified boat created according to non-functional, aesthetic considerations is copyrightable. If this boat is given any tangible form, whether in plastic, marble, or even computer memory, we’ve made a “copy” of the work. By the text of the Copyright Act, even the original Benchy 3D model is still just a copy of the intangible Benchy “work.” Doctrinally, therefore, asking if Benchy’s 3D models are copyrighted isn’t quite the right question. Benchy is protected because it is a purely creative, 3D sculptural “work,” and 3D models of this work are protected because they are copies of the same.
If this sounds like nonsense, it’s because it is, and I’m a critic of copyright’s gross intrusion into digital media. But we should still try to understand and follow the law.
Another way to teach the Benchy controversy is to invert the facts. Say a creator named “Ivan Patrol (Boat)” designs a remote-controlled, 3D-printable boat in Fusion. He invites his friends and his employer, a small-time lawyer in Florida, to test prints of the design and make modifications so that the printable boat steers and floats as well as possible, and is successfully reproducible for a wide sample of people and 3D printers. Even if Ivan names his boat “Swifty,” sells it to his lawyer, and they both agree to call it “art,” their work is not copyrightable subject matter.
How can this be so?
As I patiently explain in my Black Flag White Paper, the Copyright Act excludes from its scope industrial works and the designs of useful articles. And what is a useful article? Congress’ definition is “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.”
Should Ivan or his employer ever license “Swifty” under Creative Commons, or try to register it with the U.S. Copyright Office, they would learn that their underlying work, no matter how much labor and money they sank into it, was a utilitarian object designed according to functional considerations. They would learn that copies of their work, as fixed in 3D files, are outside the scope of copyright.
This is the secret of most open source hardware projects. Though it’s nice to broadcast our digital work as within a libertarian or hacker tradition, our chosen licenses are usually unenforceable commemorative statements because our work is not sufficiently “creative” according to the Copyright Act.
And this is a good thing! The Benchy war teaches us that trying to create or enforce legal boundaries between the worlds of the artist and engineer will only result in censorship and signal destruction. It teaches us that anyone who tries to copyright a 3D gun model is merely looking for a backdoor patent, and has confused freedom with power.
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