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3D Scanning and the

Law: Cultural Heritage
CHALLENGES - 11 March
BACK TO OVERVIEW
2015

3D scans made by Sketchfab community are

fascinating. Considered as the photography
2.0, 3D scanning involves everything (art,
buildings, cars, people, etc.) and raises legal
questions. To help with any gray zone, we
are publishing a series of articles on 3D
scanning and the Law. This !rst article
focuses on Cultural Heritage. While this is a
fascinating topic, please keep in mind those
posts are not a legal advice and I am not a
lawyer.

Jerry Fisher is a photogrammetry

enthusiast and resident of Sioux Falls in
South Dakota, USA. On a nice day, he 3D
captured full-sized bronze casts of
Michelangelo’s and David, located in the
Fawick Park and Moses, located in
Augustana College, a private college of
arts and sciences. The casts are perfect
replicas of the illustrious Italian sculptor’s
masterpieces and were gifted to
Augustana College in the early 1970’s by a
local inventor who became a wealthy
entrepreneur. Shortly after Jerry
published his models online, a
representative of Augustana College
claimed a copyright infringement and
requested Jerry to remove his 3D !le from
the internet immediately. Augustana
College recently responded to this
controversy in a comment to Slate:

“Mr. Fisher did not seek the permission of

Augustana College nor the City of Sioux
Falls prior to pursuing the 3D
reconstruction technology or before
o"ering [the 3-D model] to others. … In
October 2014, we reached out to Mr.
Fisher to express our concern over his
actions in light of the fact that he did not
seek permission from the College, the City
of Sioux Falls or the families of the artist
and/or the Fawicks [the family who
donated the statue]. At this point, Mr.
Fisher made the decision to un-publish
the 3D image !le.”

We decided to bring the entire story in

front of a panel of specialists:

Michael Weinberg is a Vice President

at Public Knowledge. He oversees PK
Thinks, Public Knowledge’s place to
explore long term trends and
anticipate policy challenges. He also
focuses on the policy implications of
emerging technologies such as 3D
printing and open source hardware.
Professor Christopher Sprigman
teaches intellectual property law,
antitrust law, competition policy,
and comparative constitutional law
at New York University School of
Law. He is a graduate of the
University of Pennsylvania (1988)
and the University of Chicago Law
School (1993). His scholarship
focuses on how legal rules a"ect
innovation and the deployment of
new technologies.
Professor Bernard Frischer is a
leading virtual archaeologist and the
author of seven printed books, three
e-books, and dozens of articles on
virtual heritage, Classics, and the
survival of the Classical world. He is
the founding editor of Digital
Applications in Archaeology and
Cultural Heritage, an innovative
online, peer-reviewed journal where
scientists can publish interactive 3D
models. He taught at UCLA,
University of Pennsylvania, the
University of Bologna and Beijing
Normal University.

Here are three important de!nitions:

Copyright law: The legal right given

to a writer, composer, artist, or a
distributor to exclusive production,
sale, or distribution of their work.
Public Domain: Artworks whose
intellectual property rights have
expired, have been forfeited, or are
inapplicable. In general, artworks fall
into the public domain 70 years after
the death of author, or, for
corporate works, anonymous works,
or works for hire, 95 years from the
date of publication or 120 years
from the date of creation, whichever
expires !rst.
Public spaces and private properties:
Public space does not mean public
domain. An artwork showcased in a
public space is not necessarily in the
public domain and may have a
copyright. Furthermore, an artwork
showcased in a private property (like
a Museum) is not necessarily
copyrighted and may be in the
public domain. Note that owners
can eject you from their private
property.

1. You can scan public domain

artworks or their replicas and share
them with the world

In 1999, the Bridgeman Art Library had

made photographic reproductions of
famous works of art from museums
around the world (works already in the
public domain.). The Corel Corporation
used those reproductions for an
educational CD-ROM without paying
Bridgeman.  Bridgeman claimed copyright
infringement. In 1999, the district court
has ruled that perfect replicas of public
domain artworks are not copyrightable, if
the reproductions are slavish or lacking in
originality. Their decision was one of the
most important copyright decisions
a"ecting museums ever !led.   The
decision was based on both US and UK
copyright law.

Coming back to Jerry, Michelangelo died

in 1564 so all his masterpieces went in the
public domain centuries ago. In October
1973, a local newspaper published an
article about the statue scanned by Jerry.
It says:
“The 18-foot, 3 ½-ton statue […] is
believed the only exact bronze
reproduction of Michelangelo’s David,
according to Dr. Palmer Eide, retired art
professor at Augustana College.”

There is no copyright on the original

sculptures, and there is no copyright in
the exact replicas of the original
sculptures. Jerry did not have to ask for
any permission and the College was
wrong to claim a copyright infringement.

David by Michelangelo "

by jerryfisher

!
Loading 3D model

2. You can sell and protect your

creations

a. Commercial use

You can make commercial use of public

domain scans. You can either sell the 3D
models or their 3D printed versions.
Businesses have been selling pictures of
public domain artworks for decades.

b. Copyrights

Originality is a condition of copyright

eligibility and the caselaw Meshwerks vs
Toyota considered the scan of an object
as insu%ciently original to qualify for
copyright protection. That means that
Jerry’s scan is not copyrightable and falls
in the public domain. However, there are
di"erent improvements and creations
that you can copyright:

If you use a 3D modeling software to

improve the sculpt and the textures
of your scan, and if the
improvements can be conceived of
as severable, it increases your
chances of copyright eligibility.   In
other words, the easier it is to see
your improvements independently
of the original scan (and the
improvements are not just to make
it more accurate), the better your
case for copyrightability would be.
If you add a creative content to it,
you can copyright these substantial
improvements, but the copyright will
be limited to your modi!cations. For
example, if Jerry adds wings to
David, he can copyright his
improvement.

Finally, you can potentially copyright

a 3D sculpt (model made from
scratch in a 3D modeling software)
of a public domain artwork. 3D
models of public domain artworks
can’t be copyrighted in the shape
(public domain), but they could be
copyrighted in the code. In the end,
a 3D model is a piece of code and
you can have a copyright in the
creation, the same way that you
would have a copyright if you went
to the museum and sketched the
sculpture accurately on paper.
However, there is not any case law
directly on point. Someone could
argue that a super accurate hand
modeled sculpture is insu%ciently
original to get copyright protection.
 But right now, there is not a strong
reason to think that the argument
would win.

c. Terms and conditions

What follows is based on the US law and

could be di"erent in other countries. As
mentionned above, public domain
artworks are not copyrightable. Art gallery
owners can still use the terms and
conditions to prevent anyone from
accessing their collections in order to
make scans for commercial use. The
terms and conditions could prevent
visitors from creating 3D scans, or selling
scans. Visitors could potentially implicitly
agree to the terms and conditions when
walking in the gallery. Art galleries could
also use online term and conditions to
prevent anyone from making commercial
use of their own scans that they share on
online platforms like Sketchfab.

Finally, the terms and conditions is an

unilateral contract that is not viral. You
only have a contract with the person who
downloads your !le, or scans your
collection. If this person shares a model
with someone else who starts selling it,
you won’t be able to hold the !nal
reseller(s) liable for any damage, but only
the person who downloaded your model,
or scanned your collections. If your terms
and conditions prevent him from sharing
the scans, you can hold the person who
downloaded the !le liable for any
damages caused, but not the person who
received the model from him or her.

Please note that the Law di"ers from

each country. If you have information
about the law in a speci!c country, please
share your knowledge by commenting
this post.

The British Museum allows anyone to

download their 3D scans for free on
Sketchfab. That’s a great example of
openmindness, and a valuable donation
to Education.

Granite head of Amenemhat III "

by The British Museum

!
Loading 3D model

We are proud to announce that we will

join forces to organize a scanathon in May
2015. We will give you more information
soon.

Sketchfab
about 7 years ago

"3D print your own Pharaoh": Sketchfab featured on

the printed version of Wired, with The British
Museum, announcing our #Scanathon in May!

6 1 2

“Do not touch” is dead and

Culturalmap.org is almost here

Corentin

ABOUT THE AUTHOR

SKETCHFAB TEAM

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1 COMMENT

Anthony Abolarin says:

9 OCTOBER 2016 AT 16:48

If the law were to be truly lawful,
copyright would belong to the VERY FIRST
ORIGINAL ‘creator’ or ‘inventor.’ But the
law is biased and almost always in
support of the wrong. Our folk songs
originated long before the law, as we now
know it. Yet, copyright is granted to some
‘yesterday-born’ artists, barring other
indigenous ‘newcomers. The same can be
said of a number of copyrights.
Secondly, copyrights ‘frein’ development.
Collaboration has helped 3D Printing
technology to advance to the level of a
revolution faster than any other
revolution. The law and copyrights can
only deter progress. Stagnation of the
law, that favours lawyers and their agents,
should not rule over the progressive
humanity,

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