3D Printing in Intellectual Property

By: Yixin Bao

Starting in the 1980s, 3D printing or additive manufacturing arose and began to develop. Although the standard limitations that exist in current Intellectual Property (“IP”) law can be applied to 3D printing, there are still gaps in the legal profession that the courts need to address.

What is 3D printing? 

3D printing produces 3-dimensional physical objects from digital templates through a variety of processes. This is normally done under computer control, with materials added together, such as plastic, metal, and others, typically layer by layer. As of 2020, after around 40 years of its initial development, 3D printing has become a more mature technique. 3D printers are now more affordable allowing the public to use 3D printing techniques in normal life. Consumers can easily find a low-cost 3D printer as cheap as a few hundred dollars. 

3D Printing and IP Law

Today, there are more prosecutions and litigation over the use of intellectual property protection measures in the context of 3D printing. For example, Patent and Litigation Trends for 3D Printing Technologies published on IPLytics Platform found that the patent applications related to 3D printing continue to rise in the passing years, from around 2,000 in 2007 to over 20,000 in 2019. The good news is that the standard limitations that exist in current IP law can also be applied to 3D printing. 

Patent protection, for example, plays a significant role. In the U.S., patents are a government-granted monopoly towards the inventor for a limited period of 20 years. As WIPO’s 2015 World Intellectual Property Report on Breakthrough Innovation and Economic Growth has shown, 3D printing companies are enforcing patents heavily. These include not only specialist 3D printing companies but also major manufacturing companies, such as GE and Siemens. One of the reasons why patent protection is an important strategy over 3D printing is that such protection covers a wide variety of objects, including printers, the components of such printers, the manufacturing processes, and the products. In addition, the industrial 3D printing sector does not solely rely on patent law in its protection strategy. Trade secrets, copyright, and trademark protections also play a role.

However, there are also questions that courts need to address when it comes to the 3D printing technique. Compared to the industrial sector where the protection is similar to the other manufacturing industries, 3D printing for non-commercial purposes seems to face several new challenges. One question raised by Elsa Malaty and Guilda Rostama published in World Intellectual Property Organization (“WIPO”) Magazine is who would own an object when it is conceived by one individual, digitally modeled by another, and printed by a third individual. 

Why does it matter?  

With the quality of 3D printing continuing to rise and the price continuing to drop, 3D printing is now more advanced and accessible, so it can be foreseen that 3D printing-related legal protections and disputes will only increase in the future. The challenges and opportunities will come after the earliest patents start to expire. The original owners would need to develop new patentable technologies to maintain those protections. The expiration will also present an opportunity for the Open Source Community.

IP law contributes enormously to national economies. Dozens of industries, including 3D printing, rely on the adequate enforcement of IP. On the other hand, consumers benefit from IP to ensure the quality of the products, such as 3D printers. This is especially important because the availability of low-cost, high-performance 3D printers has put the technology within reach of consumers. 

At the same time, IP-related issues are only one legal aspect that 3D printing raises. During the use and application of this technique, other aspects of law will undoubtedly be implicated and will need to be resolved eventually.

“Mob” Mentality: The Push for Unionization of Anime Voice Actors

By: Nicholas Neathamer

Whether you’re just hearing about it or are already a raving fan, the popularity of anime continues to skyrocket. Anime is a style of Japanese film and television animation that has garnered worldwide fans for decades, but the emergence of streaming platforms and their willingness to embrace the medium has given rise to booming demand for anime content in recent years. The market size of the anime industry has steadily risen over time and is expected to generate revenue of over $47 billion by 2028. Despite the overwhelming success of the industry, one often overlooked factor of an anime’s popularity is its cast of voice actors, who bring animated characters to life through dialogue. Existing in further obscurity are the voice actors who “dub” shows and movies, providing voiceover work in various languages to attract viewers around the world. These ‘dubbing’ voice actors often provide services for streaming platforms such as Netflix, Hulu, and anime-exclusive platform Crunchyroll. One of Crunchyroll’s most popular shows is currently Mob Psycho 100, and the platform recently began airing the anime’s third and final season. 

Despite Mob Psycho 100’s popularity, one of the most incendiary issues in the anime world recently has been Crunchyroll’s recasting of the show’s English voice for the protagonist. Kyle McCarley, the original English dubbing voice actor for the titular Shigeo “Mob” Kageyama, was informed by Crunchyroll that he would not be returning as the English voice of Mob. According to McCarley, the fallout was due to the actor’s request that after this final season of Mob Psycho 100, Crunchyroll would meet with union representatives to negotiate a potential contract for future productions. McCarley is part of the Screen Actors Guild – American Federation of Television and Radio Artists (SAG-AFTRA), an American labor union representing actors, voiceover artists, journalists, singers, radio personalities, and other media professionals. Crunchyroll currently chooses to not work with any SAG-AFTRA contracts, and McCarley’s proposal for a future union contract was allegedly enough for the streaming platform to look for a new lead voice for Mob Psycho 100. 

It’s no mystery as to why a company like Crunchyroll wouldn’t want to work with unionized voice actors. Unions like SAG-AFTRA are often able to secure more favorable terms for union members through the use of collective bargaining and standard contracts, such as SAG-AFTRA’s Dubbing Agreement. Entering into union contracts would bind Crunchyroll to pay voice actors at scheduled minimum payment rates, contribute to pension and health plans, and follow additional rules set forth by the union. Unionized labor forces are also able to more effectively go on strike against employers to push for higher compensation or new terms to their contracts. In particular, SAG-AFTRA voice actors went on strike against large video game publishers in 2016, arguing for residuals, transparency in roles, higher safety precautions, and better safety assurances for actors while on set. Rather than submit itself to such terms and the increased possibility of a strike, Crunchyroll has eschewed even the possibility of utilizing SAG-AFTRA talent. Instead, Crunchyroll hired non-union Ernesto Jason Liebrecht to voice the character of Mob.  

Some fans of Mob Psycho 100 have wondered whether McCarley can seek legal recourse after the recasting, including whether McCarley may have copyright protections over his portrayal of Mob. However, this is almost certainly not the case. In Garcia v. Google, Inc., a case from 2015, the United States Court of Appeals for the Ninth Circuit examined whether an individual actor or actress may claim copyright in his or her performance in a motion picture. The court looked to the Copyright Act, which states that “[c]opyright protection subsists…in original works of authorship fixed in any tangible medium of expression…[including] motion pictures.” 17 U.S.C. § 102(a). The Act also states that such a fixation must be done “by or under the authority of the author.” 17 U.S.C. § 101. The court ultimately agreed with the Copyright Office, who explained that its “longstanding practices do not allow a copyright claim by an individual actor or actress in his or her performance contained within a motion picture” and that for copyright registration purposes, “a motion picture is a single integrated work” and an acting performance cannot be registered apart from the motion picture. Therefore, McCarley, also solely an actor, would not be able to claim copyright over his role.

Another question posed is whether Liebrecht’s portrayal of Mob violates McCarley’s rights under California’s statutory scheme or common law (as the company operates primarily out of that state), including whether Liebrecht is able to imitate McCarley’s voice for Mob. California Civil Code section 3344 provides that anyone who knowingly and without prior consent uses another’s voice or likeness in any manner, on or in products or goods, shall be liable for any damages sustained by those injured. However, this statute only explicitly covers the actual voice and not vocal sound-alikes. Meanwhile, under California’s common law, imitating another person’s voice can violate that person’s right of publicity, as seen in the decision of the United States Court of Appeals for the Ninth Circuit in Midler v. Ford Motor Co. In that case, the court alluded to protections against imitations of a performer’s voice. The court held that “when a distinctive voice of a professional singer is widely known and deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs” and have therefore committed a tort under California law. That said, such a narrow holding is unlikely to be applied to a performer such as McCarley, whose voice is not nearly as “widely known.” There also remains the issue that many may claim Liebrecht’s performance, while similar, is not an imitation of McCarley’s portrayal of Mob. 

While McCarley likely has no options to pursue legal recourse against Crunchyroll in this situation, there remains a silver lining for those who wish to see their favorite English dub actors be able to unionize more effectively. In 2019, Netflix reached out to SAG-AFTRA to negotiate a direct union agreement, leading to a 2019 agreement that included a Netflix-specific Dubbing Agreement. And on August 31, 2022, SAG-AFTRA members voted to ratify the successor contract, the 2022 SAG-AFTRA Netflix Agreement. This has further solidified the relationship between the streaming platform and union for dubbing contracts going forward, and has bolstered voice actors who work on dubs to continue a push for unionization. Looking down the road, the goodwill acquired by Netflix and push towards increased unionization may lead to a lack of dubbing talent—and a need to change policies—at Crunchyroll. 

Fair Use at the U.S. Supreme Court? The Andy Warhol Case

By: Lauren Liu

In our modern society where information is exchanged at lightspeed and entertainment choices are abundant, copyright infringement has become a more widespread issue than ever. The 1976 Copyright Act harmonized copyright law with free-expression principles, and for the first time, incorporated the concept of “fair use.” If the use of a copyrighted work is “fair use,” then it does not infringe on the original author’s copyright. However, the Fair Use Doctrine, and even copyright as a whole, can seem very conflicting in terms of its purposes. On one hand, copyright offers exclusive rights to copyright owners to protect their work and profitability. On the other hand, the exception of fair use allows others to use and alter the original work without permission from the copyright owner. In 2022, the case alleging the Andy Warhol Foundation of copyright infringement was the center of copyright law. The case raises questions surrounding copyright law and the Fair Use Doctrine. How are we supposed to define the line between fair use and copyright infringement? How can we protect copyright without jeopardizing freedom of expression?

The Copyright Act of 1976 provides that “the fair use of a copyrighted work is not an infringement of copyright.” 17 U.S.C.A. § 107. To determine whether an allegedly infringing use is “fair use,” courts need to consider four factors: (1) the purpose and character of the use, including whether such use is of a commercial or for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The case of Andy Warhol Foundation for the Visual Arts, INC., v. Lynn Goldsmith involves the commercial licensing of a silkscreen image that Andy Warhol had created based on respondent Lynn Goldsmith’s copyrighted photograph. The Supreme Court of the United States recently granted this case certiorari. The question mainly focuses on the first element of fair use, and examines whether or not the petitioner, Andy Warhol Foundation (the Foundation), has established that its licensing of the silkscreen image was a “transformative” use, and that this factor should weigh in its favor. The Court will likely look closely at whether or not the transformative use can be established simply by showing that the image conveys a meaning or message different from that of respondent’s original photograph.

The Appellate Court’s decision focused on the first and most important statutory factor: the purpose and character of the use. The purpose of this factor is to distinguish the original creator’s use and the second author’s use of the original work. Although some copying of the original will often be necessary or at least useful in making the second author’s expression clearer and more effective, the second author has to demonstrate that the second work is unlikely to supersede the original. In this case, the Supreme Court will possibly find that the Foundation’s allegedly infringing use served the same purpose—depicting Prince in an article published by a popular magazine—for which Goldsmith’s photographs have frequently been used. Furthermore, although the Foundation argued that the Prince Series was intended for communicating a message about celebrity, the Foundation has not attempted to establish that it needed to reproduce the creative elements of the Goldsmith Photograph in order to communicate that message. The Supreme Court might find that when examining this factor and all other factors, the Foundation’s use of the original work does not meet the requirements for “fair use”, and will likely rule in favor of Goldsmith.

As the legal and artistic worlds wait for a final judgment from the Supreme Court, it is worth noting that the Appellate Court’s ruling and many other “fair use” cases have already created a balance between protecting copyrighted works and allowing other creative expressions. As one of the most popular and well-regarded modern artists, Andy Warhol’s works not only bring aesthetic values to the art world, but also inspire so much creativity. However, it is obvious that many of his works contain elements drawn from public figures and other existing works. Thus, his works can become quite controversial in terms of copyright law. More broadly speaking, in the artistic world, permitting secondary users to copy protected works to a certain degree will facilitate new and creative artistic expressions. However, when such copying becomes unnecessary for the secondary user’s work, the use risks jeopardizing the original author’s rights over the original art. Such unnecessary copying also risks diminishing artists’ incentive to create future original works. Although the fair use of copyrighted works has to be determined on a case-by-case basis, the doctrine helps avoid extreme exclusions or permissions in copyright infringement cases. Creative endeavors should not be deterred by a system that categorically precludes all unauthorized uses of copyrighted works, nor should they be protected by allowing indiscriminate copying.

Why Biden’s Crypto Directive is Misguided

By: Chi Kim

During his second term, President Biden has taken a more proactive stance on crypto by asking the Federal Reserve to explore digital currency options and even announced a general gameplan around around digital assets. However, not all initiatives were as open minded. In July 2022, the United States Office of Government Ethics issued a directive that all U.S. officials holding cryptocurrencies and stablecoins directly as personal investments will be disqualified from working on any regulation that could influence the value of their digital assets. Although well-intentioned, this directive is an oversimplified policy to mask the appearance of conflicts of interest that will stifle meaningful regulation of the crypto-industry. The policymakers for crypto should actually understand the space and its nuances to ensure that it can develop without obstacles. This directive is short-sighted because if rulemakers do not hold and engage with a modest amount of crypto, then they will not have the sufficient knowledge and experience to effectively rulemake.

The crypto industry is not composed of regular securities and should not be treated as such by regulators. The crypto-industry is a fluid environment with new products emerging from decentralized finance (defi) that will require regulators to be just as flexible. When crypto developers create new projects, they often do not start from scratch and use a base layer cryptocurrency from commonly used platforms like Ethereum, Polkadot, or Solana to start building. For the layperson, I would analogize this to real estate, where developers continue to build their projects based off of the technology of the underlying platform and smart contracts to bring more complex financial products from these base layers. Beyond complex layering structures, there are utility coins that have functionality built around the coin’s use like for file storage or for renting computer power. Most notably, Non-Fungible Tokens (NFTs) have exploded in popularity and have come to resemble a market much like art more than any type of financial product. These products cannot be blanketly dismissed as securities. 

Federal officials unfamiliar with cryptocurrency will be greatly disadvantaged without the ability to learn as a retail user. As a relatively new industry, crypto does not have traditional paths or longstanding resources to become knowledgeable. The crypto industry does not have a universal organization that has certification courses like the FINRA’s Securities Industry Essentials Exam or Series 7. Most crypto experts became knowledgeable from working in industry or simply by being a customer. Government officials should be afforded the same opportunity to learn by becoming end users. From this perspective, government officials can also create better policies that actually serve retail users and the ecosystem. 

Lastly, there is a great incongruence of standards between the average federal employee and Congressional members. Last year, Senator Kelly Loeffler and Senator David Perdue may have profited in the ballpark of tens of millions of dollars from selling securities with non-public information. During the 2021 term, Congress even beat the market trading nearly $290 million in securities through the year. If a stricter standard needs to be set, it does not have to be here, but rather to individuals that regularly benefit from non-public information. The Biden Administration has an opportunity here to create a more comprehensive policy that can be replicated rather than implementing a crude blunt ban.

The Biden Administration should temper its strict restrictions to conform to the different nuances within the cryptocurrency ecosystem by allowing certain kinds of utility coins to be held. Government employees can also be supported with a robust policy that consists of holding limits, disclosure requirements, and restricted trading periods. Holding limits will cap the amount of crypto held by policymaking employees to give flexibility around holding small amounts, especially for educational purposes. Disclosure requirements can help create transparency around financial gains by the employee to their respective agencies. Restricted trading periods create safeguard periods for employees following significant events to maintain trust around non-public information. These efforts create a more robust policy with flexibility for small holdings rather than create a superficial blanket against conflict of interests.

Careful! Big Brother is Watching (or rather Listening)

By: Enny Olaleye

Earlier this year, social media users may have been surprised to see #LiveListen trending on websites such as Twitter and TikTok. This hashtag represented one of Apple’s newest innovations called Live Listen, an accessibility feature designed to help the hearing-impaired, by permitting users to use their AirPods to turn their electronic devices (iPhones, iPad, etc.,) into a microphone—which sends sound to their AirPods. However, what Apple intended to be a simple new feature for their products quickly transformed into a social media craze, where Apple users discovered that they could use this new function to eavesdrop on other people’s conversations. 

Activating the Live Listen feature is as easy as opening your iPhone’s settings application. Once activated, the Live Listen feature allows users to hear conversations more clearly, by tuning out any background noise present. With your AirPods in your ears and your iPhone near the person you are trying to hear, Live Listen will transmit the audio to your AirPods. While navigating this new feature, users soon found out that when their AirPods were connected, they were able to listen in on any conversations happening in the room the iPhone was placed in—even when they were in a different room from the device. Live Listen remains active until the AirPods are put back in their case or disconnected from their mobile device. This feature means that, even if the connected iPhone or iPad is hidden somewhere out of sight, it can still clearly pick up conversations within the same room. 

Social media users began to label this new advancement as a “game-changer,” publicly admitting the different ways as to how they planned to utilize this feature to eavesdrop on their friends, partners, and even their employers. 

Thus, the question arises: Are AirPods our newest security threat? 

When you think of the word “wiretapping,” or what is commonly referred to as “eavesdropping,” you may imagine a black-and-white scene with a bunch of men in suits huddled around a clunker of a machine wearing oversized headphones—looking intently into the distance. Well, thanks to Ring cameras, high-definition drones, and of course smartphones, wiretapping laws have greatly expanded from what they used to be back in the day of drama-filled, black-and-white criminal television shows. The Electronic Communications Privacy Act of 1986 (ECPA), made it a federal crime to engage in, possess, use or disclose information obtained through illegal wiretapping or electronic eavesdropping. This statute applies to any face-to-face conversations, emails, texts, phone calls, or “electronic communication,” that are reasonably expected to be private. 

“But—I don’t plan to record the conversation; I just want to listen in.” Still…no. 

Aside from the literal action of using AirPods as a wiretapping device, the ECPA also considers it a felony to intentionally intercept electronic communication—which translates to setting up your AirPods to listen into private conversations. Further, the ECPA also considers it a felony to attempt to intercept an electronic communication—which includes the mere action of attempting to set up the LiveListen feature for the purpose of listening into a reasonably private conversation. Regardless of whether you are recording or just listening in, the consequences of even attempting to wiretap or eavesdrop include imprisonment of up to five years (if criminal intent can be proven) and up to a $250,000 fine. 

With the advancement of technology not dwindling down any time soon, it brings up the matter that if your peers can so easily listen into your conversations, what does that mean for those with more resources and power? 

Electronic surveillance, whether through AirPods or government-funded access to encryption tools, is fundamentally at odds with personal privacy. Under the Fourth Amendment, government agencies must obtain a warrant, approved by the judge, before engaging in wiretapping or electronic surveillance. However, while government agencies are required to secure a warrant, their requests for wiretaps are almost never turned down by judges. Once authorized, both wiretapping and electronic eavesdropping enable the government to monitor and record conversations and activities without revealing the presence of government listening devices. 

Legislation concerning wiretapping and privacy rights continuously lag behind the fast-paced advancement of technology. Even so, products as simple as AirPods and iPhones will never be tagged as security threats due to the sheer awareness that they already exist everywhere. The old-time anecdote that “Big Brother is Watching You” is slowly coming into fruition as user privacy can be surpassed at our own fingertips. While the expansion of electronic surveillance was originally meant to reduce serious violent crimes after 9/11, it has only led to the heightened violations of privacy rights amongst those in the United States. 

“So now what?” 

Well, simply put—in most circumstances, listening in to conversations that are “reasonably expected” to be private, without the consent of those participating in the conversation, will most likely constitute a federal crime. Thus, activating LiveListen and utilizing it outside its designated role as an accessibility feature is not a good idea. With respect to protecting yourself and your information—that is a bit more difficult. Avoiding the entire “surveillance economy,” by not using Apple products or avoiding Google and Twitter is just very unlikely (I still haven’t been able to give up Amazon Prime). However, taking action can be as small as searching on secure networks only (with the little lock on the search bar), to as large as applying pressure to your state’s representatives to pass legislation centered on protecting our individual privacy rights is a step in the right direction. 

The bottom line is; without the assurance that our private communications are, indeed, private, privacy rights will continue to be glazed over and decisions based upon free will and personal choice will slowly be replaced by decisions centered in prudence and fear.