This is the fifth post in a series about different types of rights that could be involved with models and files here at Shapeways. Today we’re talking about what happens to rights in models after the model is sold.
Most of the posts in this series are about the rights of creators and about how those rights give creators control over their creations. This post is something of the inverse. It focuses on the rights of people who acquire those creations. Specifically, it focuses on what happens to a creation after it is sold.
At its most basic, the concept of copyright “first sale” is that when you sell something to someone else, that something is theirs. Your decision to sell the object means that you are giving up your ability to control that object. Without first sale there would be no such thing as used record stores or libraries, yard sales would be a lot smaller, and eBay may never have gotten off the ground.
The Object is Not the Copyright, the Copyright is Not the Object
In thinking about first sale it is important to keep in mind the difference between the copyright for the object and the object itself. This distinction is easy to understand once you have concrete examples. If you buy a copy of a book like Neal Stephenson’s The Diamond Age, you own that copy of the book. You can do whatever you want with that book – you can lend it to a friend, sell it at a yardsale, or cut it up and turn it into a collage.
You do not, however, own the copyright in Neal Stephenson’s The Diamond Age. Without owning the copyright to the underlying book, you cannot make a bunch of copies of The Diamond Age and start selling them, or turn The Diamond Age into a musical, or sell a the German translation of The Diamond Age you created.
Fundamentally, the difference between these two sets of rights is the difference between owning a copy of something protected by copyright and owning the copyright itself. Owning a copy of something gives you the ability to control that copy, but not over the work itself.
First Sale Applies to 3D Printed Objects Too
The same applies for copyrightable objects sold here on Shapeways. If you sell a model on Shapeways, the buyer of the model owns it. That buyer can paint it however she likes, give it to her cat, or resell it without getting permission. However, that buyer cannot create copies of the object without first getting your permission simply because she purchased a single copy from you.
There are some potential exceptions to this. If I buy something from you and then try and resell it as my own work I may be engaging in fraud. And in some cases happening in some places, mislabeling a model’s title or creator could run afoul of what are known as moral rights. These are rights related to copyright designed to allow creators to assert their association with a work.
All that being said, in most cases there is nothing illegal about someone purchasing 3D printed models and reselling them somewhere else.
What Should I Do if I Discover Someone Reselling My Stuff?
Assuming you were paid for the models, the reseller probably is not breaking the law. They are, however, giving you some potentially useful information about your models. If the reseller is successful, that means that there is a significant market for you work. That’s a good thing.
It also means that you may be under-pricing or under-marketing your models. If a reseller can make money by buying your models at retail and reselling them somewhere else, that may mean that you are leaving money on the table with your retail price. If a reseller has found a profitable market for your models that you didn’t realize existed, maybe it is time to explore that market yourself. Of course, it may be easier to let the reseller pay you for your model and then explore that market themselves. Remember that every customer that pays the reseller is also a customer that is paying you for the original model.
Two Caveats and One Place for Additional Reading
Caveat number one: none of this applies if the reseller (or anyone else for that matter) is making unauthorized reproductions of your copyright-protected model. First sale does not protect someone making such copies, even if they are basing them off a legitimate copy they purchased from you. You did not sell your copyright in the object when you sold the object itself, and first sale will not prevent you from asserting your rights. If you discover someone making unauthorized copies of your models, it may be time to reach out to them and/or talk to a lawyer.
Caveat number two: if you are worried about fraud (such as someone passing your models off as their own) you should reach out to the platform hosting the fraudulent models for sale. Their terms and conditions almost certainly prohibit fraud (ours here at Shapeways certainly do). If someone is committing fraud on their site they will want to know.
One place for additional reading: like many copyright concepts, the first sale doctrine was developed before the internet and digital goods. Figuring out what first sale means in the context of digital goods can be complicated. Sherwin Siy over at Public Knowledge has put together an interesting look at how we could make digital first sale work better.