Over the past few weeks, there’s been chatter on maker sites that LEGO has been increasingly targeting the 3D printer space with takedown notices, asking (or forcing) creators and hosting sites to pull down plans for models or videos that detail their creation. One creator, agep, has had the model files taken down from multiple videos.
There’s plenty of contention in the move within the community. The responses have ranged from measured, “I’m sad, but I understand,” to the more frothy stuff one has come to expect from the internet when any sort of copyright/IP/trademark law comes up. They say you can’t discuss politics or religion on the internet, but I’d often take either one of those topics over any discussion related to stuff like this (and not just because I wrote that article on Blizzard and that stuff is fresh in my mind).
I understand what LEGO is doing here. It’s easy to cry foul when things like trademarks, copyright, and intellectual property come into play, but those are very important concepts and legal frameworks. Copyright can be (and frequently is) abused, but trademark, trade dress, and IP are a whole different beast. What’s weird in how LEGO is doing this is that they’re using all of the tools at their disposal to go after the content… DMCA takedown notices are related to copyright claims, and those are aimed at the videos hosting links and content, while the cease & desist are aimed more at the trademark side of things.
It’s important to understand how IP law works and the expectation it puts on the owner of a property: if you don’t defend IP against infringement, you cannot claim it. This is why Disney is so aggressive in going after anyone who uses their creations without permission, even small places like bake shops and mom and pop craft stores. The same thing is why big companies like Nintendo send cease & desist notices to fan projects using established IPs… because they have to (though one could argue Nintendo would do it anyways – I love them, but they are litigious pricks).
Trademarks and trade dress protection last forever, as long as the entity that owns or claims it is still a thing (and even if a company ceases to operate, someone likely owns their IP and trademarks). That’s why LEGO has, and leverages, their Fair Play guidelines around the logo, name, and other distinctly “LEGO” things. LEGO even spells out in those guidelines that they have to protect these in order to keep the.
A Trademark must be Protected
A trademark must be able to distinguish the goods of one company from those of another. If a trademark loses this ability, the owner may find that it can no longer prevent others from using the trademark.
LEGO trades entirely on their name, and there is already an entire industry built around pretending to be LEGO and moving what can only be called counterfeit goods (anyone who’s seen a LEPIN/Nuogao model or set knows what I’m talking about). LEGO has some patent protection (minifigures, specialized elements), but not on the basic brick (those expired some time ago)… but they do have protection on using the brick as part of their logo and trademark.
Fair use around trademarks and IP is a lot fuzzier than it is around copyrighted materials (which basically amounts to parody, criticism, or commentary). With trademarks and IP stuff, it generally (but not always) falls into one of these use categories:
- Descriptive – LEGO Ideas has a specific trademark and use within their products, but you are free to use the word “ideas” even when describing a LEGO product, or even a competing product
- Comparative – Want to start your own building block toy company that’s compatible with LEGO? You can call out that fact on your marketing and packaging
- Collateral – This is how sites like Bricklink, Brick Owl, and the various other bricks operate, even selling custom builds and parts. They work with LEGO stuff, and are free to call that out even without permission
- Nominative – This is basically us… LEGO is a registered trademark, but we’re free to use it all day long to describe the company and their products
The important thing to pull out of all of those uses is what isn’t allowed: basically anything that would create confusion and make it seem as though a product, service, or site was directly affiliated or created by LEGO. We can use their name all day long, but can’t plaster the red brick logo all over the site, we can’t sell shirts that advertise the site using their name, and we can’t sell things that are misrepresented (or could be seen as) official LEGO items.
The biggest misconception around Fair Use always seems to be that if it’s not done for profit, or for commercial use, it’s fair game. In truth, that has nothing to do with it at all; Weird Al has made an entire career out of that fact. Based on what I’ve seen with most of the things that got taken down is that they ran afoul of the confusion aspect, and how they were presented.
The video I linked above is pretty cool, and certainly well done, and while that video maker didn’t do it, it would be easy for someone to grab it and start printing out his builds and selling them as an knockoff LEGO product. LEGO has moved into making bigger versions of their regular stuff in recent years (bins, clocks, decoration, etc), including toy versions of things like lightsabers and tools.
On one hand, it sucks, because the guy did some incredible work in detailing the model and creating something that is immediately recognizable and iconic. On the other, this was always going to be the outcome: LEGO has to defend their IP and trademarks. There are still a ton of things out there and available on places like Thingiverse, and they likely aren’t going to come after you if you make some bonkers brick configuration or put together files for creating knockoff bricks that are going to have a lower quality bar than anything by Best-Loc (3D printers are cool, but they aren’t going to replace manufactured goods anytime soon).
But the moment you try to turn those bricks around and sell them as authentic, you’re going to run into issue. Same as going after the unique and protected things that are out there. A lot of creators are looking at this as a repeat of the fight between record labels and uploaders back in the day of file sharing sites… but it’s not that. After all, in that war, it wasn’t file sharing that ultimately won, it was iTunes, and later streaming services.
In the meantime, if you’re a maker, feel free to keep making. Just watch how you’re sharing.