3D Scans and the Law

Today’s technology allows for making copies of sculptures, buildings or any other three-dimensional object in a way true to the original. The underlying technology is constantly evolving; the data required for this can now also be extrapolated from just a few photographs taken from different angles. As fascinating as the technical development is, the legal implications associated with such 3D scans are often less than clear.

1. 3D scans of copyright protected works
Copyright protects works of art and as such also sculptures and other three-dimensional objects, insofar as these are an expression of a personal intellectual creation. In Europe this protection applies until the year after the author has been dead for 70 years. It is only then, that a work is transferred to the public domain. Copyright protection implies that a work can only be "used" with the express consent of the creator or his legal successor. "Use" in the context of copyright cover such actions as, for example, copying (hence the term "copyright"), but also editing, exhibiting, showing, filming, etc. The mere enjoyment of a work, on the other side, is not covered by copyright protection.

In terms of copyright, scanning in general and, in particular, 3D scans are considered copies. If such scanning is not conducted in a purely private context and, if copies are published, this is only permitted with the consent of the rights holder. So, if the scans are used to create a works of art, which is usually aimed at being displayed in public, the permission of the rights holder of the original work of art is required.

The same applies for the publication of adaptations. Such adapted works also requires the consent of the rights holder of the original work. But there are exceptions to this. For example, the alienation of works in the form of a caricature, a satire or a pastiche are explicitly permitted. It would also be permissible to create a new work that is very different from the original; alterations so grave that they pale the original to an extent that it is hardly recognizable are not regarded as an adaptation under the law, but rather as an independent, new and unique work. However, these are exceptional cases, which will usually not be applicable in our context. After all, the special feature of 3D scans is, precisely, that they reproduce the original as unchanged as possible. Such faithful reproductions - just like adaptations - require the consent of the rights holder.

2. Three-dimensional scans of public domain works
However, three-dimensional scans of public domain works will lead to a completely different legal result.

No copyright protection
Public domain works may be used freely. The production of 3D scans is also permitted under copyright law, whereby it is irrelevant which technology is used here.

Domestic authority of the institutions
When it comes to scanning public domain works, however, there may be practical obstructions involved. In order to scan a sculpture, one must have access to it. Depending on which technique is used, either an elaborate 3D scanner must be used, or at least some photos must be taken, which then form the basis for a computer-aided extrapolation of the 3D model.

This raises the question of the extent to which the domestic authority of an institution, such as a museum or archive, may be in conflict. The courts do recognize museums are legally permitted to ban taking photos on their premises. In Germany, the Federal Court of Justice recently has ruled this on the grounds that such prohibitions, may also be aimed at purposes other than preventing reproduction, for example, restoration purposes or those relating to visitor guidance and organizational procedures. In Europe, publicly funded institutions may also prohibit photography.

In practice, however, such limitations are becoming increasingly questionable. More and more cultural heritage institutions around the world are deliberately dispensing with photography bans, as they feel committed to the principle of open access, and also want to allow the free subsequent use of the works in their care. Pioneering such a position was the Rijksmuseum in Amsterdam. In many countries, free availability and re-usability is now a condition for public funding of digitization projects. The open access policy of the cultural heritage institutions of the state of Hesse can also be considered typical example for this development (https://archiv.ub.uni-marburg.de/es/2021/0029), as it explicitly opposes bans on photography.

In addition, the PSI Directive (https://eur-lex.europa.eu/legal-content/DE/TXT/PDF/?uri=CELEX:32019L1024&from=DE) also puts an obligation on state or publicly funded cultural heritage institutions in Europe to allow the use of their belongings. Preventing the creation and use of data of works of art in the public domain by means of the right of access is contrary to the spirit of the PSI Directive. However, a right to access, in particular to a specific type of access, cannot be derived from this.

In practice, there are still some cultural heritage institutions that attempt to limit access even to public domain holdings through contract law in such a way that subsequent use is restricted. However, in view of the clear decision of the European legislator in favour of public domain, the legal admissibility of such provisions is doubtful. Here, however, there are still differences in the respective national legislations in Europe.

Property law (of tangible assets)
The basic rule in Europe is that ownership of a work of art does not give rise to a right to a photograph or a copy of that work of art. The latter is a question of copyright law, not of the property law of tangible goods.

Contrary to this principle, there are isolated efforts in some countries to grant the property owner control over corresponding images as well. In Germany, for example, the Federal Court of Justice has granted the owner of an object the right to take action against the use of photographs that were taken on the property of a building also located there (in the specific case: the Sanssouci Palace) when this is in violation of his explicit ban of such action. This decision led to much controversy, and it cannot be deduced from this ruling that any use of photographs for a computer-aided reconstruction of a building also infringes the owner's rights in all cases. Such interpretation would clearly be an over-extension of the rights of the owner to his property, since the 3D reconstruction of a building (or even a sculpture) on the basis of photographs does not involve any impairment of the property itself, nor does it necessarily involve any actions that are taken in violation of an expressed prohibition that could be enforced by the owner.

Use of photos for computer-aided reconstructions
If public domain three-dimensional works are not freely accessible or institutions use their domestic authority to prevent three-dimensional scans, it may still be possible to use existing photos to extrapolate and reconstruct the three-dimensional objects with the aid of a computer.

As a rule, the use of photographs for such computer-aided reconstructions is permissible. This applies, at least, if the photos are purely photographic images and not photographic works. (The distinction between photographs and photographic works is complicated; to put it simply, in the case of a photographic work, the photographer makes his or her own creative decisions and is thus creatively active.) In the case of a simple photographic image no creative decision is made. Pictures of sculptures that are made according to fixed, predetermined parameters and serve only to document a portfolio of works will have to be classified as such a simple photographic image, while photographs in which an object is staged in a special, creative way through, for example, lights and shadows, and the specific angle at which the picture is taken, are considered photographic works, and thus enjoy copyright protection, themselves. Pure photographic images of public domain works are not protected by copyright. They may therefore be used for computer-aided reconstruction, without further consideration.

However, such uses are also permissible for photographs that actually have the character of a photographic work and are protected by copyright. This is due to Article 4 of the DSM Directive, which provides that, for the purposes of "text and data mining", reproductions may also be made of copyrighted works, as long as this is necessary for the automated analysis of the information contained therein. The use of works protected by copyright would only be inadmissible if, in a specific individual case, the use by automated analysis was expressly objected to in a suitable manner - i.e., in the case of presentation on the Internet in a machine-readable manner. In the case of photos, this has (so far) only been the case in exceptional cases.

However, much is in flux here. The advent of AI-generated images through newer services such as DallE or StableDiffusion has drawn much public attention to the potential of the underlying technology of artificial neural networks. For the most part, training of such artificial neural networks is conducted on images freely available on the web as training data. There are increasing reservations about this from artists. To prevent their use as training data, they apply machine-readable metadata on images to object to automated analysis. In this way, artists want to prevent their style from being emulated automatically through AI mechanism. However, this is only a relatively recent development and only concerns images of works of art that are still protected by copyright.

3. New copyright of the 3D-Scan
The copies created by 3D scans generally do not enjoy copyright protection of their own. As no new copyright protection is granted to faithful reproductions. Reproductions of three-dimensional objects, therefore were and are in principle not protected by copyright in Europe. This is obvious with regard to protection as a work: since it is merely a reproduction of an already existing work, it does not involve any personal, creative achievement of its own.

Nevertheless, there were a number of long legal disputes about the legal protection of reproductions of works in the public domain. In Italy, the leading case also involved sculptures. In Germany cases were primarily concerned with the reproduction photography, where, finally, after a long legal battle, the Federal Court of Justice ruled in 2018 that reproduction photographs were not protected by copyright as works themselves, but were protected as mere "photographic images." The protection of photographic images, which exists in some but not all countries of the EU, protects - as already explained above - such photographs that are not works in the sense of a personal intellectual creation. For 3D scans, also a potential protection by way of a sui generis database right comes to mind, which is granted in the European Union.

Developments in various European countries to try to protect faithful reproductions of public domain works through related rights have prompted the EU to clarify that within the framework of the DSM Directive 2020 no new protection mechanism arises for cases of faithful reproduction of public domain works - neither by copyright nor by related rights, cf. Art. 14 of the DSM Directive. However, this does not apply, if the material resulting from the reproduction is a separate intellectual creation.

3D scans as its own work?
Given the wording in the DSM guideline, the question arises under which circumstances 3D scans are considered to be the new creative works of the person who creates them. The 3D scan as such is not copyright protected by its own virtue, but merely a reproduction. A further distinction must therefore be made. It is conceivable that the decisions in the further processing of such a scan, e.g. the choice of materials and the changes made to them during the production process, may themselves be a creative process leading to the resulting work to be copyright protected. It would also be conceivable to characterise it as a work of art due to it having a completely different colour and material design. In this case, however, this copyright protection relates neither to the original nor to the 3D scan as such, but only to the specific resulting object.

But even if no copyright protection applies through the specific processing, or, moreover, even if an absolutely true to original copy is created on the basis of the 3D scan, the presentation and contextualization of such a copy can sometimes be seen as a work of art. In this respect, reference should be made to the concept of "ready-mades" or Objet Trouve. According to this, even natural or everyday objects can be "made" into a work of art by the artist finding them and integrating them into a different context of function and meaning. This might also apply for scans of public domain sculptures, when they are placed in a new context of meaning. Such free reusability that is not only legally permissible but also becomes technically possible at any time, no matter whether it is based on a unique specimen exhibited and admired by many in a museum, or an everyday object.

4. Conclusion
Copyright is generally regarded as a guarantee that artists are also given a basis for commercially exploiting their works. This is what creates the (material) conditions for artistic creativity. In the field of 3D scans, however, it becomes clear that this is by no means such a compelling and clear correlation as is often claimed.

On the one hand, this is because the concept of copyright to restrict acts of distribution (and thus also the effect) of a work, to control them and to make them dependent on the artist's consent, is not in every case in the interest of the artist (nor in the interest of art). This is becomes clear by acknowledging the popularity free licenses have among artists.

In addition, the concept of copyright protection of works reaches its limits where a pure copy and free copyability is the starting point of art. For these cases the act of artistic creation consists in the staging and contextualization and also relies on the free availability and usability of the original object. And thus it is not the object itself that is the object of art, but rather its staging, use and usability. Therefore, it is no contradiction to deny copyright protection to a 3D scan "as such" and at the same time to understand the specific staging, even the principle of free reusability and recontextualization as artistic expression. It belongs to the great and subversive power of art to elevate reusability itself to a conceptual principle and thus to lead the traditional arrest of copyright protection as a protection of the object from copying and reusability ad absurdum.

The 3D scan thus becomes a digital social sculpture in which the communicative matter conveyed by the free reusability is an integral part.

This is also where the special power of Oliver Laric's work becomes apparent. Whereas in the case of the ready-made a pre-existing, industrial object was declared a work of art and, for example, a urinal was elevated to the museum pedestal, Laric takes the opposite approach: by creating 3D scans, he takes public domain sculptures down from the museums' pedestal, liberates them and makes them accessible for any subsequent use. And through his own re-use, this copy of the public domain work, enriched by the specifics of Laric's adaptation and staging, returns it to the museum's pedestal. This completes a cycle of creation, free availability, adaptation, and reinterpretation that transcends the boundaries of copyright-mediated work control and creates space for the ever-new.

Laric approach applies the threefold sense of G.F.W. Hegels analysis of the German Word „aufheben“. „Aufheben“ has the meaning of preserving something as well as the meaning of invalidating something, as one would invalidate a regulation, for example. Thirdly, it has the meaning of lifting something up, in this case from a lower to a higher level.

Laric overcomes the original sculpture as one overrides an old regulation, as the sculptures cease to be unique museum pieces. He preserves them by duplicating their form, saving them from oblivion and re-contextualizing them. And ultimately he raises them to a new level, elevating them from dusty museum objects to digital social sculptures.