Duchamp — who gleefully modified others' work and called it his own — carved a gorgeous art deco chess set (this one) in 1917, which exists now only in grainy archival photos.
But last year, it came back to life, thanks to two hobbyists, Scott Kildall and Bryan Cera, who painstakingly created free, remixable 3D models of the public domain designs and put them on Thingiverse.
However, France's weird copyright laws has kept these historical treasures in copyright long after it expired everywhere else. The heirs of Duchamp threatened Kildall and Cera with legal action in France that they couldn't afford to fight, and which could have resulted in both artists being wanted men in France for the rest of their lives. They capitulated and took down their files from all the places they were hosted, along with all images of the set.
It's a common story, and one of copyright's worst contemporary failure-modes: descendants denying their ancestors' posterity, censoring living artists' work in the name of a long-dead one.
If the case was too hard to fight in French court, it would have been almost too easy to fight in U.S. court, the jurisdiction that could affect the lives of Kildall and Cera. "So under U.S. law, the chess pieces are absolutely in the public domain… and a U.S. court won't honor French moral rights. I don't see any practical way for the Duchamp estate to sue over the 3D-printed chess pieces in a U.S. court," said Mitch Stoltz, a senior staff attorney at the Electronic Frontier Foundation who specializes in intellectual property.
"Under Berne, it's the shorter copyright term that prevails," Stoltz told me. "So generally, if a work is public domain in one country, a rightsholder from a country with a longer term can't sue for infringement in the shorter-term country." When the United States joined Berne in the 1980s, it claimed that existing laws on slander and libel would cover what Moral Rights did in Europe. But libel and slander are extremely difficult to prosecute in U.S. Courts because of the First Amendment; the U.S. hadn't been forthcoming about its ability to enforce anything like Moral Rights in the French conception.
So what could the practical consequences have been, had Kildall and Cera ignored their conflict with Duchamp's heirs? Mostly exile from France. "I thought about the consequences of being barred from France for life, which would be an amusing story to tell. I could live with this, but it is not a desired outcome," said Kildall, who vacationed in France this year.
The International Fight Over Marcel Duchamp's Chess Set [Quinn Norton/Atlantic]