How far do terms and conditions go to prevent sale of 3D printed models

Question

It has already been made well clear that a 3D print is a derivative work and thus subject to any license it is obtained under. However, many designers include rules, such as you not being able to give away any 3D prints of their models, even as gifts. However, were I to unexpectedly die and not have informed any of my kin, and one of them took these models, would the same terms apply to them? Would they be able to sell them at, for example, a rummage sale?

Similarly, many designers offer a commercial tier giving you permission to sell their models, however, in that case, would the buyer then have the right to sell the model by right of first sale?

Answer 1

First Sale Doctrine

One of the rights a copyright holder has is an exclusive right "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending". 17 U.S.C. 106(3). This is distinct from the reproduction right they have to make copies or derivative works.

So, absent a licence, you can neither make the model nor distribute the model.

If you are operating under a licence, that is a legally binding contract between you and the copyright holder. If it says that you cannot give away models, then doing so is a breach of that contract and a breach of copyright for which you could be sued.

However, if you did sell or give away the model to a third party, that would be a lawful transfer of title in the object itself, even though it is a breach of contract. An innocent third party (i.e. one who has no knowledge of the breach) would be a lawful owner and could do what they liked with the object and, under the first-sale doctrine, is not bound by the licence.

If you were to die, the executor or administrator of your estate would be bound by the terms of the licence (whether they knew about them or not), and if they breached them, they would be liable for that breach. If done in good faith, they could seek indemnity from the estate, but if the estate has insufficient funds or has been finalised, they would be personally liable. This is largely theoretical as the copyright owner would have to pursue their claim so promptly that unless they were actively monitoring the death notices for anyone who ever downloaded their model, they would miss their chance.

A third party who received the physical model from the estate, either by buying it or being given it as a beneficiary, would own it and have first-sale doctrine rights.

Although originally a US concept (Bobbs-Merrill Co. v. Straus 1908), it is my understanding that the first-sale doctrine has since spread to all common-law countries. The last was Australia in Calidad v Seiko Epson [2020] HCA 41.

... the public ...

The above analysis presumes that the people you are gifting the models to are "the public". This may not be the case where the models are distributed to a small circle of people like family and friends.

In that case, there is no general right of distribution, and the copyright owner would need to rely on their right of reproduction. That is, in making the copy in order to give the object away, you breached the licence. This becomes problematic when your decision to give away the object happens later, possibly years later, possibly after you're dead.

So, it might not be a problem for the executor or administrator to distribute the object to a beneficiary, but it might be a problem to sell it at a deceased-estate auction. The former is not distribution to "the public"; the latter is.

Answer 2

The owner of copyright in a model can give any individual permission to create a derivative work, and can make that permission subject to whatever contract conditions they want, for example "in exchange for $5", or "as long as you don't modify it". That agreement is only between you and the copyright owner. CC-type licenses include a self-perpetuating clause that if you distribute a copy, it must contain the same license agreement which limits the conditions under which you can make another copy. Because of the statutory nature of copyright law, everybody knows that you can't make a copy without permission.

There is no corresponding statute that "you can't dispose of a physical object without the approval of the maker", therefore there is no mechanism that prevents a person from disposing of an object that they legally come in possession of. They might be contractually bound by some agreement for example the donor, but there is no mechanism that can force the donor to limit his gift by including a self-perpetuating contract requirement (in fact perpetuities in contracts are legally forbidden). In exactly the scenario that you describe, you can drop dead, your heirs can divide up your property, and someone can end up selling the physical printout.

[I don't understand the second part: maybe show us an example of such a clause].