photo_preview_featured1When international copyright meets the Internet, the results can be a big mess.

French chess champion Marcel Duchamp hand-carved a chess set in 1917. The set has long since been lost, and exists only as a few grainy photographs now. A pair of 3D fabrication artists, In 2014, Scott Kildall and Bryan Cera, extrapolated a 3D printing design for the chess set and made it freely available.

However, in September, 2014, they received a legal threat from Duchamp’s estate in France, requiring them to remove the files and make an offer of restitution for damages. Even though it seems like a ridiculous claim at first glance, the situation is more complicated than it appears.

Even though the chess set would be in the public domain in the USA, France had signed onto the Berne Convention 30 years before the original set was made, This meant that the set didn’t have to be registered to be considered copyrighted. But the USA didn’t sign onto Berne until 1989, a century after France. And under France’s copyright law, creators and their estates gain Moral Rights, granting them a high degree of creative control over how those creations are used. Kildall and Cera would have had to go to court in France, which would be ruinously expensive, and not even be assured of winning.

Kildall and Cera could easily have ignored the request—since they’re in the USA, where the works are in the public domain. But that would have meant giving up the ability to visit France ever again, which they didn’t want to do. So they took the files down and settled with the Duchamp estate.

Although this particular legal conflict centered around a 3D-printed chess set, the relevant characteristic is that it’s digital data and downloadable anywhere—and the same could be said for e-books. Due to the differing copyright codes, I have little doubt that plenty of French works of that period considered to be in the public domain in the United States would still have copyright claims in France. What if the Maurice Leblanc estate threatened Project Gutenberg for hosting the horribly bowdlerized English translations of the Arsène Lupin novels that were published before 1923?

But then, most potential defendants in such cases would probably not find being banned from France a great hardship. It’s just Kildall and Cera’s bad luck that they would.

It’s also worth remembering that this particular snafu was caused by a copyright treaty, right when we’re in the middle of negotiating another international copyright treaty.

(Found via BoingBoing.)


  1. I’m not convinced the chess set is in the public domain in the US, anyway. It’s a single, hand-carved work, so I doubt it would be considered to have been “published”, and from what I can tell everyone agrees it was never registered in the US or anywhere else.

    The US copyright for works that were neither published nor registered is the life of the creator plus 70 years. Duchamp passed away in 1968, so his chess set wouldn’t be public domain in the US until 2038.

    The American “prior to 1923 is public domain” rule applies to published works and to works registered in the US. It doesn’t apply to works that were neither published nor registered.

    Even then, there’s a hinky glitch. For those of us who are in the jurisdiction of the Ninth Circuit Court (western US), works that were published outside the US and not in compliance with US copyright law — roughly meaning published before 1978 without a US Copyright notice — are considered to be unpublished. That’s because of an oddball 1996 ruling by the 9th Circuit in Twin Books v. Walt Disney (regarding the rights to “Bambi”).

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