Possession is 99% of the Law: 3D Printing, Public Domain Cultural Artifacts and Copyright

Since time immemorial there has been an uneasy rapport between those who own tangible cultural artifacts, and those who wish to examine them, and record, analyze, and reproduce the information they embody. Owners of physical objects - museums, libraries, individuals, etc. - are caught between a desire to enhance the prestige and renown of these artifacts through public display, and a fear that non-owners might capitalize without their authorization, or any apparent benefit to them, upon their access to these works.Tangible cultural artifacts are akin to trade secrets in that once they are revealed it is difficult to control, by law or other means, further dissemination of their information. Just as one can legally reverse engineer and reproduce the secret formula of a fragrance or an unpatented pharmaceutical, one may legitimately copy and reproduce for virtually any purpose public domain old master paintings, classical sculptures, etc., that are owned by another.Owners of public domain artifacts attempt to overcome their inability to rely upon copyright to capitalize financially on reproductions through physical, technological and legal measures. As digital capture and reproduction technologies have advanced, and become so prevalent, some owners have resorted to restrictive physical and technological measures like smartphone prohibitions and watermarks. Increasingly, however, owners rely on contracts, and specifically licensing agreements, to suppress unauthorized replication of public domain works that they have displayed publically. Until recently, owners have been concerned mainly about unauthorized - and more pointedly, uncompensated - copying and reproduction of essentially two-dimensional works: prints, drawings, paintings, photographs, etc. Since the advent of photography one can legally and inexpensively create copies of public domain works that convey most of the information contained in the originals. Using digital technologies - laser scanning and additive printing and subtractive manufacture - today one can create copies that most observers would find indistinguishable from the originals. 3D scanning and printing technologies also make it possible to replicate sculptural works and myriad other three-dimensional artifacts. Hitherto, these works had been relatively immune to unauthorized reproduction. A reproduction of a statue, for instance, involved a laborious process demanding direct physical contact with the original work. A 3D scan of the same statue might be obtained in less than an hour, and could be used to produce an infinite number of replicas of it. It is even possible to create 3D scans using still photographs of a work taken from various angles - an encouraging possibility, for example, to those endeavoring to restore the Buddhas of Bamiyan that the Taliban destroyed.The potential loss of control over the replication of public domain artifacts posed by 3D replication has disconcerted the owners of these objects, and led to arguably overreaching efforts to suppress the unauthorized use of this technology in connection with these objects. Stanford University, for instance, has permitted a former faculty member to arrogate sole control over access to the 3D data of a University-sponsored project to scan Michelangelo’s David. Access the data is given only to those whose credentials and objectives this former faculty member condones. Prohibitions on “tasteless” and commercial uses by those given access purportedly stem from an agreement struck between the former faculty member and Italian authorities.The Getty recently sponsored Power & Pathos, an exhibition of Hellenic Era bronzes that included The Getty’s Victorious Athlete. The Getty permits visitors to photograph Victorious Athlete and other public domain works that it exhibits in its museums. While this work was included in Power & Pathos, however, The Getty forbade visitors from photographing the work. This prohibition accommodated the demand of European museums that had loaned works included in the exhibition, to suppress activity that they feared might dilute the profits generated by their own reproductions and images of these physical objects. 3D technologies hold remarkable potential for the dissemination of increasingly accurate and enhanced information about tangible cultural artifacts. This article argues that those who apply these technologies to these works should not be inhibited by contractual limitations that establish copying limitations beyond those provided under US copyright law. Three-dimensional cultural artifacts in the public domain, which attract the interest and investment of those working with 3D print technologies, tend to be objects best identified as the cultural legacy of humanity - not that of a particular geographical or political entity. By facilitating the widespread and inexpensive reproduction and distribution of such public domain cultural artifacts, 3D printing technologies, therefore not only promote more democratic access to geographically disperse cultural works, but also advance the dissolution of divisive cultural, political, and geographic boundaries.