Copyright Law - Second Circuit: Can Lamp Fixture Elements Be Conceptually Separable?

Copyrightability of Useful Objects, Merger Doctrine, Separability, Light Fixtures and Lamps, Motion to Dismiss Copyright Infringement Action

Aqua Creations USA Inc. v. Hilton Worldwide, Inc., 2012 WL 2687957 (2d Cir. July 9, 2012)(unpublished summary order).  Here the Second Circuit affirmed the dismissal of an amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim.   Plaintiff was a manufacturer of lamp fixtures.  The Copyright Office denied Plaintiff registration for the lamp fixtures.  Useful items are not generally copyrightable.  An exception is only to the extent that a 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”.  The court noted that no aspect of the lamp could be physically separated, citing the famous Mazer v. Stein, 347 U.S. 201 (1954)(copyrighted statue of a dancer as a lamp base remained protectable).   The court then reviewed “conceptual severability” (also known as the “merger doctrine”) – “if design elements reflect a merger of aesthetic and functional considerations, the artistic aspects of a work cannot be said to be conceptually separable from the utilitarian elements.”   Conversely “where design elements can be identified as reflecting the designer’s artistic judgment exercised independently of functional influences, conceptual separability exists.”   Pleading tip:  the court chided plaintiff for pleading in a conclusory manner that elements were conceptually and physically separable, but failing to identify any such elements, even on appeal.  In drafting a complaint, a plaintiff should specify elements that are either physically or conceptually separable.

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CAD Computer Software: No Artistic Sizzle, But After Filtration - Still Copyrightable Under Feist

Do you see anything copyrightable in the image that appears above?   This is the question that was faced by the Massachusetts court in Real View LLC v. 20-20 Technologies, Inc. 683 F.Supp.2d 147.   What do you think?

This image is a classic example of the merger doctrine and the scenes a faire doctrine in the computeer software context.  Here is how the court analyzed the image above under the merger doctrine, the scenes a faire doctrine and then as a compilation.

One kitchen modeling software maker ripped of another's software.  But was it copyrightable?

Puerto Rican Frog Doll Knock-Offs: Interlocutory Appeal of Preliminary Injunction

In Coquico, Inc. v. Rodriguez-Miranda, 2009 WL 903954 (1st Cir. April 6, 2009) , the First Circuit Court of Appeals tackled in a copyright infringement action the important issue of whether a preliminary injunction stopping the distribution of stuffed plush dolls depicting the coqui comun - a common brown frog in Puerto Rico - should be upheld.   [A coqui is a frog (anuran) - this is not to be confused with the Puerto-Rican coquito, my favorite Christmas cocktail made from fresh coconuts].

When attorneys are asked to discuss the difference between the federal and state forums in New York, the availability of interlocutory appeals is usually cited as a difference.  An "interlocutory" appeal is one brought prior to the conclusion of the litigation (final judgment).  In litigation practice in the courts of New York State, many of the trial court's interlocutory rulings may be appealed to the Appellate Division.   In federal practice, appeals ordinarily lie only from final judgments.  28 U.S.C. 1291. That means if a U.S. District Court judge makes a series of adverse rulings, one may be forced to try an entire case before appealing any particular adverse ruling.

But certain interlocutory appeals are permitted.  For example, Rule 23(f) of the Federal Rules of Civil Procedure permits federal courts of appeals to consider interlocutory orders granting or denying class action certifications.   28 U.S.C. 1292(a)(1) authorizes interlocutory appeals from grants, continuances, modifications, refusals or dissolving injunctions, or refusals to dissolve or modify injunctions.

In Coquico, the First Circuit reviewed the decision from the District Court of Puerto Rico granting a preliminary injunction against a producer of stuffed frogs that produced coqui comun frogs substantially similar to those of Coquico's copyrighted frogs.   The defendant argued that since the coqui comun is found in nature, the only "original" elements were a brass ring, a Puerto-Rican flag on the coqui's underbelly, and a hang tag.   The defendant relied on the merger and scenes-a-fair doctrines.

The First Circuit rejected the defendant's arguments.  It found that the following element were protected:  1. distinctive stitching pattern; 2. idiosyncratic color combination; 3. pose; 4. placement of Puerto Rican flag on underbelly; 5. dimensions (combined with other elements).

The court was persuaded by the plethora of plush frogs produced by plaintiff.   The poor defendant did not even get its frog nature photos into evidence to support its claims that its coqui comun was just art imitating nature.