Family Of Marcel Duchamp Gets 3D Print Design For Duchamp Chess Set Removed Back Into History Over Copyright

from the back-to-the-future dept

Intellectual property is often times used to censor others or control that which should otherwise be free. Sometimes it does this for arguably valid reasons. And sometimes it does so in ways so laughably and obviously against the intention of intellectual property protections that it would make you laugh if you weren't too busy yelling in anger. This story is about an example of the latter.

Marcel Duchamp was first and foremost a French-American artist. He painted and sculpted, composed music, and constructed kinetic works of art. He was also an avid player of chess, going so far at one point as to fashion his own chess set personally from wood while in Buenos Aires. This chess set, originally thought to be lost to the world but now confirmed to be part of a privately-owned collection, survived until recently only in archival photographs of the man and his chess pieces. Until, that is, Scott Kildall and Bryan Cera used the photograph to come up with the Readymake: Duchamp Chess Set, which would allow a person to 3D-print Duchamp's chess set for themselves. Kildall and Cera then uploaded the 3D files to Thingiverse and made them available for all to download. Here is how they described the project.

Readymake: Duchamp Chess Set is a 3D-printed chess set generated from an archival photograph of Marcel Duchamp’s own custom and hand-carved game. His original physical set no longer exists. We have resurrected the lost artifact by digitally recreating it, and then making the 3D files available for anyone to print.

We were inspired by Marcel Duchamp’s readymade — an ordinary manufactured object that the artist selected and modified for exhibition — the readymake brings the concept of the appropriated object to the realm of the internet, exploring the web’s potential to re-frame information and data, and their reciprocal relationships to matter and ideas. Readymakes transform photographs of objects lost in time into shared 3D digital spaces to provide new forms and meanings.


Pictured: an example of the 3D modeling from the archive photo of the chess set

Cool, right? The duo's project generated some press after they uploaded it and the two were particularly thrilled to see a discussion emerge between artists and technologists about just what could be done in 3D printing material generated form archival photos. Adjacent to those discussions were conversations about the ownership of design and ideas, which, while interesting, Kildall and Cera didn't think were germane to Duchamp's chess set for any number of reasons (more on that in a moment). Regardless, the estate of Duchamp apparently caught wind of the project and promptly sent a cease and desist letter.
Unfortunately, the project also struck a nerve with the Duchamp Estate. On September 17th, 2014, we received a cease and desist letter from a lawyer representing the heirs of Marcel Duchamp. They were alleging intellectual property infringement on grounds that they held a copyright to the chess pieces under French law.
Except that doesn't make any sense for any number of reasons. Kildall and Cera outline why they chose Duchamp's chess set for the project and, to my reading, they appear to be correct on every count.
1) Duchamp’s chess pieces were created in 1917-1918. According to US copyright law, works published before 1923 are in the realm of “expired copyright”.

2) The chess pieces themselves were created in 1917-1918 while Duchamp was in Argentina. He then brought the pieces back to France where he worked to market them.

3) According to French copyright law, copyrighted works are protected for 70 years after the author’s death.

4) Under French copyright law, you can be sued for damages and even serve jail time for copyright infringement.

5) The only known copy of the chess set is in a private collection. We were originally led to believe the set was ‘lost’ – as it hasn’t been seen, publicly, for decades.

6) For the Estate to pursue us legally, the most common method would be to get a judgment in French court, then get a judgment in a United States court to enforce the judgement.

7) Legal jurisdiction is uncertain. As United States citizens, we are protected by U.S. copyright law. But, since websites like Thingiverse are global, French copyright could apply.
Except that, all that being said, this isn't a work of art we're talking about. Duchamp created his chess set so that he could play chess. It wasn't something he sought to reproduce for sale. He played chess. This would be akin to me drawing a four-square board on the sidewalk in chalk and then claiming I have copyright over it. That's insane. If copyright is built to encourage expression, how does having the one chess set Duchamp ever created locked away in a private collection deserve copyright protection? There's no further expression to encourage. And, indeed, under American copyright law, the clock has run out on the protection anyway. The fact that the Duchamp estate would try to apply French copyright law to this case, where the creation happened in Argentina and when Duchamp himself became a naturalized American citizen, is crazy-pants.

The duo's solution was to lay down their king and take the files down. Well, that was step one in their solution, at least.
We thought about how to recoup the intent of this project without what we think will be a copyright infringement claim from the Duchamp Estate and realized one important aspect of the project, which would likely guarantee it as commentary is one of parody.

Accordingly, we have created Chess with Mustaches, which is based on our original design, however, adds mustaches to each piece. The pieces no longer looks like Duchamp’s originals, but instead improves upon the original set with each piece adorned with mustaches.


If you're not fully aware of Duchamp's artwork, this solution is especially clever because the Duchamp estate would have a difficult time arguing that this is inappropriate, given Duchamp's own artwork. So, it's funny, but that never should have been necessary in the first place. The Duchamp estate's use of copyright to disappear recreative files for a chess set once constructed is a bastardization of copyright's intent.


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  • icon
    Ninja (profile), 11 Sep 2015 @ 10:48am

    We are missing the main point here. No amount of copyright length will make dead people create more. So unless said estate is busy creating all sorts of psychedelic chess pieces the whole things is a full pile of bullshit.

    reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 11 Sep 2015 @ 11:05am

    Hopefully the original files were downloaded by many, many people and will be passed around for the foreseeable future.

    reply to this | link to this | view in chronology ]

  • icon
    JoeCool (profile), 11 Sep 2015 @ 11:24am

    Maximalists are greedy-stupid

    This just adds to the preponderance of evidence that copyright maximalists can't think straight. This wasn't costing them anything, and their response only makes them look like idiots with eyes clouded by greed.

    reply to this | link to this | view in chronology ]

    • icon
      jupiterkansas (profile), 11 Sep 2015 @ 12:30pm

      Re: Maximalists are greedy-stupid

      And it's the worst kind of greed. It's not the simple greed of "I could make money with this." It's the greed of "Someone else might make money with this." When in fact, there's almost no money to be made from this, if any. It's envy-greed that stems from the fact that they didn't think of it first.

      reply to this | link to this | view in chronology ]

      • icon
        John85851 (profile), 11 Sep 2015 @ 1:09pm

        Re: Re: Maximalists are greedy-stupid

        To extend your point-
        This isn't so much "Someone else might make money with this" as much as "Someone else had an idea we didn't think of, and we want to keep control of our creation."

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 11 Sep 2015 @ 2:20pm

          Re: Re: Re: Maximalists are greedy-stupid

          Not really; they already lost control of their ancestor's creation -- the only copy was locked up in a private collection; all they had were the photographs.

          My guess is that it wasn't ever a case of money, but was instead a case of "Wait, someone else duplicated something our ancestor created, but in plastic! This must be stopped! It besmirches his name!"

          Of course, that totally misses the point that their ancestor would have run into the same problems for most of the art he created, as he tended to use readymade objects under someone else's copyright and then make additive changes (derivative works, anyone?).

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 11 Sep 2015 @ 4:06pm

            Re: Re: Re: Re: Maximalists are greedy-stupid

            This thread is highlighting the brain damage caused to all of society that has grown up in the copyright age. No one is making money on this. It doesn't besmirch his name. There is no logic whatsoever behind this.

            It's a knee jerk reaction from members of a society that have been taught that they own everything that they, or their ancestors, have ever thought of.

            reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 13 Sep 2015 @ 9:19am

        Re: Re: Maximalists are greedy-stupid

        ie. The Vile Maxim

        reply to this | link to this | view in chronology ]

  • identicon
    andy, 11 Sep 2015 @ 11:41am

    Shame on them...

    If someone could post the torrent file i would very simply create a website and have the files available for download (claiming initially that i had created the files myself which nobody could prove otherwise,to protect the creator) I would also have the website allow people to upload files if their own creations with the moustaches and other changes that people might enjoy downloading and printing, i have absolutely no doubt that the crazy French would try to sue me and would welcome that with open arms as i could then claim for costs and a reasonable amount of compensation for the time it would have taken out of my very hectic life. A few million in compensation i am sure would be awarded as this is clearly a case of suing just for the hell of it and knowing beforehand that they do not have a case.

    reply to this | link to this | view in chronology ]

  • icon
    tqk (profile), 11 Sep 2015 @ 2:39pm

    A nit or ambiguity perhaps?

    Except that, all that being said, this isn't a work of art we're talking about. Duchamp created his chess set so that he could play chess. It wasn't something he sought to reproduce for sale.

    Did you miss point "2"?
    2) The chess pieces themselves were created in 1917-1918 while Duchamp was in Argentina. He then brought the pieces back to France where he worked to market them.

    I'm not quibbling or arguing copyright law minutia (I really don't care and think it's all very silly and unnecessary). I just think those two statements contradict each other.

    It is very sad that there's people out there like the Duchamp heirs, and Tolkien's heirs, who've been given the power to muck up what we can do with our shared cultural heritage. It's doubly sad when they're pulling this only when someone else steps up and does something with it when they had no intention of doing so themselves. "Dog in a manger" comes very much to mind.

    reply to this | link to this | view in chronology ]

    • icon
      JoeCool (profile), 11 Sep 2015 @ 7:20pm

      Re: A nit or ambiguity perhaps?

      I think he meant that the actual creation of the set had nothing to do with making money. He created the set because he wanted something unique to play with. LATER, he may have realized there might be some money in it, so he then tried to make some money on it, but it wasn't the impetus for the creation itself.

      reply to this | link to this | view in chronology ]

  • identicon
    Nomad of Norad, 11 Sep 2015 @ 7:27pm

    There need to be consequences.....

    I have said this before, I will say it again. There really need to be some strongly negative consequences for people misusing copyright laws like this, particularly when they demand a take-down on something they have no legal excuse to do so on. Make them pay a stiff fine when they do, say US$1000 to US$10,000 depending on the magnitude of their improper take-down or cease-and-desist request. Have reality kick their double-damned teeth in!

    reply to this | link to this | view in chronology ]

  • identicon
    Bill T., 11 Sep 2015 @ 9:08pm

    the obvious response is....

    DERIVED WORK! DERIVED WORK!

    reply to this | link to this | view in chronology ]

  • icon
    Rosco P Coltrane (profile), 12 Sep 2015 @ 8:42am

    Mustaches won't help

    Of the new set adorned with facial hair: The duchamp Estate can simply sequester the Queen, who as a female, cannot possibly have a mustache. Good luck trying to play a game of chess without its most powerful piece. Bwoooohahahaha!!!

    reply to this | link to this | view in chronology ]

    • icon
      tqk (profile), 12 Sep 2015 @ 9:27am

      Re: Mustaches won't help

      The duchamp Estate can simply sequester the Queen, who as a female, cannot possibly have a mustache.

      You must be a youngun. There's a shop about a block from me which offers a hair waxing service to remove those impossible mustaches. As you grow older, you'll find hair growing in places you couldn't imagine when you were younger (and good luck keeping the ones on top of your head). A girlfriend of mine was shocked to learn I had hair on the knuckles of my toes, and that was when I was a teenager.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Sep 2015 @ 9:38am

    They should have contacted the EFF and ask them to write a strongly worded letter back. The original chess set was in the public domain, and there is no copyright involved here.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Sep 2015 @ 11:00am

    He then brought the pieces back to France where he worked to market them.

    Does this mean there are others out there, one doesn't market unless they have something to sell which brings up the possibility ..this unique work of art is not, well very unique.

    reply to this | link to this | view in chronology ]

    • icon
      tqk (profile), 12 Sep 2015 @ 12:18pm

      Re:

      Does this mean there are others out there, one doesn't market unless they have something to sell which brings up the possibility ..this unique work of art is not, well very unique.

      Well, there has been quite a bit of turmoil over there since then. Things get lost, stolen, bombed, yada yada, and rich people love to lock things away in private collections. It was thought this set was lost when they started recreating it, only to reappear once somebody started doing something with photos.

      We also know little of what came of his marketing effort. I'd assume very little as all that was thought left of it was photographs.

      It's pretty annoying that someone who managed to pry this little bit of lost art back into reality are then accosted by copyright lawyers. Those people have no idea of the real meaning of art. It's a shame for it to be in their hands.

      reply to this | link to this | view in chronology ]

  • identicon
    A. Lauridsen, 12 Sep 2015 @ 11:50am

    Mismatch

    DMCA, based on US copyright law, is routinely used by Google to pull down data from servers hosted in Dublin, and uploaded by Europeans, where the DMCA doesn't apply.

    Here data is being pulled from a US based server based on French copyright law.

    This odd symmetry is striking, Whether one likes or dislikes copyright law.

    reply to this | link to this | view in chronology ]

    • icon
      tqk (profile), 12 Sep 2015 @ 12:28pm

      Re: Mismatch

      DMCA, based on US copyright law, is routinely used by Google ...

      It's not being used by Google. It's being used by rightsholders. Google is just complying with the law. I'm not a Google "fanboi", but it's wrong to blame them for this.

      Duchamp's estate/heirs are being asses for pulling this crap. This does no honor to his memory. They should be ashamed.

      reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 13 Sep 2015 @ 1:53am

    I have a question, but lack the desire to look for myself, about the pieces.
    Is France one of those countries that allows the 'artist' (read as hes been dead for decades but someones gotta get paid) to collect a cut of every sale of the works?
    In a truly money-grubbing sense, the takedown could be to protect the money they MIGHT get someday when the private collector (Or the heirs) whos held them for a very long time finally tires of them and sells them.
    If there were printed copies, in their minds, suddenly the set is no longer one of a kind and the final sale price could plummet.
    Given the amount of money we see thrown away daily on chasing imaginary dollars they think they aren't making in other realms of IP, this would make perfect sense.

    reply to this | link to this | view in chronology ]


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