Copyright Law Ronald W. Staudt Class 10 February 23, 2009

Pictorial, Graphic & Sculptural Works zPhotographs yMannion v. Coors yDiodato v. Spade zUseful Articles yMasquerade- what is a useful article yPivot Point- separability

Mannion v. Coors zFacts yThree works: Mannion’s, Comp Board & Coors Billboard zPrima Facie Case yOwnership of a valid copyright yCopying yImproper Appropriation or Infringing Copying or substantial similarity between protected elements of P’s and D’s works

Mannion v. Coors zProtectible Elements of Photographs yRendition xContrast Bridgeman and SHL —features of the photo not sweat- usually photographer’s selection of camera, lens, lighting, filters, etc. is somewhat original. yTiming xImage, not subject evidences creativity yCreation of the Subject xKoons and Seligman zCompare protected elements of Mannion’s photo to the Coors Billboard—dissection in the 2 nd Cir.

Mannion v. Coors zIdea and Expression in Photographs yCompare the Kaplan photos and state the idea: xSense of desperation xBusinessman contemplating suicide xFirst person view of businessman contemplating suicide by jumping from a building with shoes set against distant street

Mannion v. Coors “Thus another photographer may pose a couple with eight puppies on a bench, depict a businessman contemplating a leap from an office building onto a street, or take a picture of a black man in white athletic wear and showy jewelry. In each case, however, there would be infringement (assuming actual copying and ownership of a valid copyright) if the subject and rendition were sufficiently like those in the copyrighted work.”

Mannion v. Coors- result “The parties have catalogued at length and in depth the similarities and differences between these works. In the last analysis, a reasonable jury could find substantial similarity either present or absent. As in Kisch v. Ammirati & Puris Inc., which presents facts as close to this case as can be imagined, the images are such that infringement cannot be ruled out - or in - as a matter of law.”

Diodato v. Spade zFacts and Photos yDetails that are part of the idea yScenes a faire yPose as common and predictable yHandbag as standard or de minimis zSummary Judgment for D- Elements copied from P’s photograph lack originality!

Pictorial, Graphic & Sculptural Works- Useful Articles z“As the following materials reveal, the availability of copyright protection for the design of useful objects has evolved from the uncertain to the incoherent.” casebook p. 221

“Pictorial, graphic, and sculptural works include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” 17 U.S.C. 101

A "useful article" is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a "useful article". 17 U.S.C. 101

§ 113. Scope of exclusive rights in pictorial, graphic, and sculptural works a) Subject to the provisions of subsections (b) and (c) of this section, the exclusive right to reproduce a copyrighted pictorial, graphic, or sculptural work in copies under section 106 includes the right to reproduce the work in or on any kind of article, whether useful or otherwise. (b) This title does not afford, to the owner of copyright in a work that portrays a useful article as such, any greater or lesser rights with respect to the making, distribution, or display of the useful article so portrayed than those afforded to such works under the law, whether title 17 or the common law or statutes of a State, in effect on December 31, 1977, as held applicable and construed by a court in an action brought under this title. (c) In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports. 17 U.S.C. 113

What is a “ useful article? ” zPig noses zCostumes zToy plane zDoll clothes

What useful articles are within copyright subject matter? ythe design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.

What useful articles are within copyright subject matter? Pivot Point ’ s “ Make-up ” Mannequin Head Facts– xorigins of Mara xuses of Mara xLiza and her double hairline yUseful article? ySeparability? yDC adopts Goldstein’s test for separability: Can it stand on its own as a work of art traditionally conceived? And, Would the useful article in which it is embodied be equally useful without it?

Pivot Point ’ s “ Make-up ” Mannequin Head yOther tests for conceptual separability: xArt is primary, utility subsidiary xUseful article marketable for its aesthetic qualities xStimulates a concept in beholder separate from its utilitarian concept xArtistic aspects not overly influenced by utilitarian concerns xArtistic features are not utilitarian xDenicola process centered approach of design reflecting “artistic expression uninhibited by functional considerations”

Prior Caselaw … yBelt buckles -in- 237 (primary/secondary test) yPeople Mannequins -out- 238 (aesthetic aspects useful) x(Ornamental chair design –out-Newman’s dissent and mind’s eye) yBicycle racks -out- 240 (Denicola test: design process shows aesthetics adapted for utility)

Pivot Point ’ s “ Make-up ” Mannequin Head y“…no evidence that Heerlein’s artistic judgment was constrained by functional considerations.” y“…because Mara was the product of a creative process unfettered by functional concerns, the sculptural features can be identified separately from and are capable of existing independently of its utilitarian aspects.” yDissent: “Mara has no conceptually separate features…without features [she would be] an egg on a stick..” xp. 247 comments- process is irrelevant as is D’s bad behavior

Pictorial, Graphic & Sculptural Works zHeart and Arrow spoons 248 zPhiladelphia Museum of Art 249 yDresser yTea set yLamp yButterfly stool yJoe- Mit chair yEasy edges rocker