Toy companies nationwide have begun to take note of a new threat: 3D printing. With the advent and development of 3D printing technology, scholars and businesses fear that the toy industry may suffer a similar fate to the music industry. The detrimental impact that illegal song downloading had on music companies could conceivably be repeated if mass production of illegally copied toys becomes rampant. A booming 3D printing marketplace could effectively provide toys to consumers, identical to those produced by toy companies, at a fraction of the cost. The big questions now are how the law will adjust to take note of this new development, and whether even the most robust legal protections will be efficient to stop the spread of illegal 3D copies if the practice becomes too prevalent.
3D printers work by translating blueprints into physical objects. Rather than building objects through molds or cutouts, the printer creates them by intricately forming together pieces of material. The 3D printing industry grew by more than $1 billion in 2014, and a number of large manufacturers have created a marketplace capable of reproducing products created and sold by toy companies.
Although the creators possess copyright licenses to each of their unique products, the laws preventing 3D printers from illegally copying are still relatively lax. Specifically, the Digital Millennium Copyright Act provides a safe harbor provision for the 3D printing industry. As long as these companies agree to remove infringed products once they are identified, they may continue to do so until the toy companies bearing the licenses discover that their rights have been violated. The transaction costs of seeking out infringers provide difficult incentives for copyright holders, particularly in seeking out small-scale operations producing a limited number of unauthorized copies. Ultimately, these companies need to decide whether the resources needed to catch infringers will be exceeded by the damages they will receive in return, and often this is not the case.
Currently, toy companies are at an impasse with the 3D printing market—either they can set up a system to heavily enforce their IP rights on a regular basis, or they can embrace the emerging technology. While establishing robust intellectual property protections for their products is certainly one solution, it may not be the smartest one that toy companies can take. A number of major companies, including Hershey, Marvel, and Hasbro, have recognized the merit of working with the 3D printing market to enhance their business. Specifically, Hasbro has spearheaded an initiative to reconcile this problem. Rather than shut out 3D printing companies entirely, it has partnered with Shapeways and a group of artists to create toys based on fan art. While these artists are solely permitted to produce “original content,” they have license to base their creations off of existing Hasbro products. This benefits all parties—Hasbro is compensated for its license, the artists are paid for and encouraged to do creative work, and the 3D printing company receives money for its production.
Marvel has similarly created the SUPER AWESOME ME project with 3dPlusMe, which allows fans to create customized action figures based on Marvel’s lineup of superheroes. By allowing every child to become “Captain America” or “Iron Man,” Marvel has really taken advantage of 3D printing’s unique capabilities. This initiative effectively combats the threat that leaders in the 3D printing market will compete with toy companies; they can avoid the hassle of copyright infringement and still reap monetary benefits through manufacturing.
However, although toy companies may have found a way to work with 3D printing for now, they may face greater challenges in the future. If 3D printers become too accessible and personal models become prevalent, it will be impossible to monitor and police the countless infringements occurring in households everyday. Toy companies can only hope that individuals will eventually appreciate the quality of the goods available only through the authorized market. If the time and cost of self-production is too high or illegal copies are inferior, toy companies may be able to stay afloat by working with leaders in the 3D printing market and continuing creative innovation.
Victoria E. Kim is a J.D. candidate, 2017, at NYU School of Law.
