Copyright, Optical Illusions and the Penrose Triangle

The Penrose Triangle is named after mathematician Roger Penrose who - as a student - saw an exhibition of M. C. Escher’s work in the 1950s and began working on "impossible figures" of his own. One of the objects that Roger Penrose drew was a triangle - a drawing that looks like a real, solid three-dimensional object, but isn't.

Fun fact: Together with his father, a physicist and mathematician, Roger Penrose went on to design an image of a staircase that simultaneously goes up and down - known as Penrose stairs.

After the Penrose's staircase image was made public, M. C. Escher was apparently inspired to produce his own famous "Ascending and Descending" staircase lithograph (first printed March 1960).

The visual conundrum of the Penrose Triangle isn’t the only brain-teaser raised by the triangle optical illusion. Here's how copyright law (specifically the DMCA takedown provisions) became tangled up with Mr. Penrose's Triangle back in 2011.

In early 2011, Ullrich Schwanitz - a Netherlands-based designer - designed a 3 dimensional object based on the Penrose Triangle:

In mid-Feb. 2011, Mr. Schwanitz posted copies of the object he had figured out how to print in 3 dimensions for sale on (a site where people who create unique objects with 3D printers sell those objects). He was asking US $69.95 per physical object - which he would 3D print and then mail to buyers. Note: Mr. Schwanitz was NOT initially sharing his design file with users of the site (some sellers share design files - but many just want to sell the objects they print based on their designs).

Mr. Schwanitz simply offered copies of the object for sale - and (to drum up attention?) he released a video of the shape and (unwisely?) challenged others to see how it might have been done.

Well.. another avid 3D modeler, Artur Tchoukanov, figured it out.

Mr. Tchoukanov designed his own 3D shape that accomplished the same effect. And he uploaded his shape's specifications to, a "design community for discovering, making, and sharing 3D printable things," where designers typically offer their 3D designs for others to use without charge.

Mr. Schwanitz was not happy with Mr. Tchoukanov and Thingiverse.

And here’s where the story takes a turn that should be of special interest to anyone thinking about the implications of designing using new technologies...

Mr. Schwanitz sent Thingiverse a DMCA notice (i.e., Thingiverse could be a party in a copyright lawsuit against Mr. Tchoukanov - unless Thingiverse took the shape down immediately).


There was no claim that Mr. Tchoukanov had copied Mr. Schawnitz’s computer code. Instead, Mr. Tchoukanov's original code simply created objects that were very similar to the one’s Mr. Schwanitz was selling.

Was Mr. Schwanitz right?

What are the legalities here?

(After there was much outcry online, Mr. Schwanitz dropped his complaint against Thingiverse and Mr. Tchoukanov's work. And Mr. Schwanitz's triangles are no longer for sale.)

To take a very extreme position, I guess you could argue that an optical illusion (like the one known as the Penrose Triangle) presents a real problem for copyright law (which is how Mr. Schwanitz initially chose to remedy his feelings of aggrievement). 

While copyright can protect original expression, how can the law grant someone a copyright in expression based on a single mind-bending illusion? Couldn’t such a copyright also potentially grant control over the idea of the illusion itself? In other words, most optical illusions are essentially the expression of one idea: An idea that can be expressed in a very limited number of ways. And because the idea behind most optical illusions raises thorny issues of authorship and originality - there is an argument to be made that expression (without other evidence of original creativity) of an optical illusion might not be copyrightable. 

In theory, copyright should not give an author control over his or her expression if that interest would prevent others from exploring their own expression of a simple universal idea. 

Remember: Copyright doesn’t protect ideas

And, arguably, because idea and expression are so closely linked in many optical illusions, a monopoly over the simple expression of an optical illusion could also grant a unpermissible monopoly over the idea.

But what about unique expressions? Like a unique object based on an optical illusion? Aren't they protectable by copyright?

Is it possible that Mr. Schwanitz’s design is indeed creative, and deserving of a copyright? And that Mr. Tchoukanov’s work does not violate that copyright? 

After all, Mr. Tchoukanov’s work is not strictly speaking a "copy" of the Schwanitz design. It wasn't created by copying the file. Instead, Mr. Tchoukanov’s work is arguably an interpretation of an underlying public domain work. Yes. Mr. Tchoukanov was inspired by Schwanitz's design. But the optical illusion they both are working with is almost certainly in the public domain.

This one never went to trial. So we don't know what a court would have done with the arguments on all sides. 

Is it a stretch to say that the legal and ethical problems here remind me of the experience of looking at a Penrose Triangle? The merits change and my sympathies shift depending on how I look at it.

What do you think?

1 comment:

Martin Evan said...

Nice blog you have here thanks for sharing this

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