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.
Filed Under: 3d printing, appropriation art, chess, copyright, culture, france, marcel duchamp, mustaches, public domain, us