OPINION
Before us is an appeal from an order granting summary judgment in favor of the defendant-Appellees on a copyright infringement claim. Appellant Kay Berry, Inc. (“Kay Berry”) claims that Appellees Taylor Gifts, Inc. (“Taylor”) and Bandwagon, Inc. (“Bandwagon”) infringed its copyright on its sculptural work — a garden rock cast with a poem found in the public domain. The United States District Court for the Western District of Pennsylvania granted summary judgment after determining that Kay Berry’s copyright registration was invalid and that the sculрtural work was not entitled to copyright protection. We will reverse.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Kay Berry designs, manufactures, markets and sells “Garden Accent Rocks,” which it describes as decorative, cement-cast, outdoor sculptures typically resembling rocks or stones, inscribed with writings. On July 7, 1997, Kay Berry applied for a copyright registration for its entire line of Garden Accent Rocks. It provided its Garden Accent Rock Catalog (the “Catalog”) as the document specimen for the registration. The Catalog identified each sculpture by number and featured a description and photograph of each individual work. The United States Copyright Office issued Kay Berry a Copyright Registration Certificate (the “Certifícate”) with an effective date of July 1, 1997. The Certificate identified the scope of the Certificate’s subject matter as simply “[sjeulptural works with design and text.”
One of Kay Berry’s best-selling Garden Accent Rocks is Sculpture No. 646, a rectangular object having a stone-like appearance and a verse inscribed on the face. The verse appears in five lines, inscribed in a right-leaning font with the first letter of each word capitalized:
If Tears Could Build A
Stairway, And Memories
A Lane, I’d Walk Right Up
To Heaven And Bring
You Home Again
(Appellant App. at 8.)
During 2003, Bandwagon began supplying to Taylor, and Taylor began marketing and selling, a “Memory Stone,” which was similar to Kay Berry’s Sculpture No. 646. Like Sculpture No. 646, the Memory Stone was a rectangular object with a stone-like appearance featuring the exact same verse that appears on Sculpture No. 646. The Memоry Stone’s verse was also laid out in the same five-line format, each word also began with a capital letter, and the entire verse also appeared in a right-leaning font.
Kay Berry sued Taylor and Bandwagon for copyright infringement and moved for a preliminary injunction prohibiting the Appellees from selling the Memory Stone. On December 8, 2003, a United States Magistrate Judge issued a Report and Recommendation suggesting that the District Court deny Kay Berry’s motion. The District Court adopted the Magistrate’s Report and Recommendation, without change, in an order dated February 23, 2004.
At about the same time, on February 6, 2004, Appellees had filed an amended motion for summary judgment on the infringement claim. On August 2, 2004, the Magistrate issued a Report and Recommendation suggesting that the District Court grant the motion. On August 30, 2004, the District Court adopted the Mag
II. JURISDICTION AND STANDARD OF REVIEW
The Distriсt Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338(a). This Court has jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District Court’s grant of summary judgment and employ the same analysis required of the District Court to determine whether there are any issues of material fact that would enable the non-moving party to prevail.
Hamilton v. Leavy,
III. ANALYSIS
“To establish a claim of copyright infringement, a plaintiff must establish: (1) ownership of a valid copyright; and (2) unauthorized copying of original elements of the plaintiffs work.”
Dun & Bradstreet Software Servs., Inc. v. Grace Consulting, Inc.,
A. Kay Berry’s Registration
We begin by addressing the validity of Kay Berry’s copyright registration. According to 17 U.S.C. § 411(a), “no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this titlе.”
See Well-Made Toy Mfg. Corp. v. Goffa Int’l Corp.,
1. Group Registration
Initially, Kay Berry argued that its Garden Accent Rocks were proрerly regis
The Register of Copyrights is authorized to specify by regulation the administrative classes into which works are to be placed for purposes of deposit and registration, and the nature of the copies or phonorecords to be deposited in the various classes specified. The regulations may require or permit, for particular classes ... a single registration fоr a group of related works.
17 U.S.C. § 408(c)(1) (2005). Relying on
Benham Jewelry Corp. v. Aron Basha Corp.,
Although we agree that § 408(c) represents a liberalization of the copyright laws, it does not define the requirements for a valid copyright registration. The applicable subsection states only that “[t]he regulations may require or permit, for particular classes ... a single registration for a group of related works.” 17 U.S.C. § 408(c)(1) (emphasis added).
“It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, and if the law is within the constitutional authority of the law-making body whiсh passed it, the sole function of the courts is to enforce it according to its terms.”
Caminetti v. United States,
The Register of Copyrights has exercised the authority delegated by § 408(c)(1) by promulgating rules allowing for group registration for “automated databases,” “related serials,” “daily newspapers,” “contributions to periodicals,” “daily newsletters,” and “published photographs.” See 37 C.F.R. §§ 202.3(b)(4)-(9). Kay Berry, however, describes its Garden Accent Roсks as “sculptural works.” Since the Register of Copyrights has not promulgated regulations allowing for group registration of sculptural works, we conclude that Kay Berry’s registration is not valid under the current group registration provisions.
2. Single Work Registration
Kay Berry alternatively contends that its copyright registration is valid as a “single work” under 37 C.F.R. § 202.3(b)(3). This provision describes a single work, “[i]n the case of published works,” as “all copyrightable elements that are otherwise recognizable as self-contained works, that are included in a single unit of publication, and in which the copyright claimant is the same.” 37 C.F.R.
“Single Work” registration is separate and distinct from “Group Registration.” The group registration provisions were enacted pursuant to 17 U.S.C. § 408(c)(1), and were based on Congress’s desire to liberalize the registration process. See H.R.Rep. No. 94-1476, at 154 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5770. The single work registration provision, by contrast, was promulgated pursuant to the language of 17 U.S.C. § 408(a), which states that “the owner of copyright or of any exclusive right in the work may obtain registration of the copyright claim.... ” 17 U.S.C. § 408(a) (emphasis added). This provision codified the pre-existing Copyright Office practice of allowing copyright owners to register multiple works published together as a single work for a single fee. See Registration of Claims to Copyright, 43 Fed.Reg. 965, 966 (Jan. 5, 1978) (codified at 37 C.F.R. pt. 202). At the time this provision was established, the Copyright Office had “reserved for implementation in a separate proceeding, the possibility of providing for ‘a single registration for a group of “related worksT] under paragraph (c)(1) of section 408.” Id
The single work registration regulation is distinct from the group registration regulation and has different qualifying requirements. The single work registration regulation is silent on whether the individual, self-contained elements of the “single work” be “related” in order to be registered. Instead, single work registration requires, in the case of published works, that all of the self-contained works be “included in a single unit of publication” and share the same copyright claimant. 37 C.F.R. § 202.3(b)(3)(i)(A).
In
Benham Jewelry,
In addition to confusing the regulatory provisions,
Benham Jewelry
conducted an analysis that combined the requirements of group registration and single work reg
In
Donald Bruce & Co. v. B.H. Multi Com Corp.,
Both Benham Jewelry and Donald Bruce fail to account for the fundamental distinction between single work registration under 37 C.F.R. § 202.3(b)(3), and group registration under 37 C.F.R. § 202.3(b)(4). This distinction is significant. In this instance, Kay Berry’s garden accent rocks may not be sufficiently “related” but they were included in a single unit of publication and the copyright claimant is the same so, regardless of their relаtedness, they may be registered pursuant to the single work registration regulation. 2
Next, the District Court concluded that Sculpture No. 646 lacked any protectible configuration or design. We disagree.
“To qualify for copyright protection, a work must be original to the author ... meaning] only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.”
Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
Here, Kay Berry claims that it selected an inspirational poem from the public domain, adapted that poem to make it visually and rhythmically appealing, and then cast it on its own sculptural work. For these reasons, as well as those set forth above, we conclude that this quantum of creativity is sufficient to qualify for copyright protection.
See Feist Publ’ns.,
C. Kay Berry’s Copyright Registration Does Not Extend to an Idea
We next turn our attention to the second part of the infringement inquiry— whether Appellees improperly copiеd Sculpture No. 646, and specifically, whether the expression Kay Berry seeks to protect has merged with an unprotectible idea. Copying refers to the act of infringing any of the exclusive rights that accrue to the owner of a valid copyright, as set forth at 17 U.S.C. § 106, “including the rights to distribute and reproduce copyrighted material.”
Ford Motor Co. v. Summit Motor Prods., Inc.,
“Substantial similarity,” in turn, is further broken down into two considerations: “(1) whether the defendant copied from the plaintiffs work and (2) whether the copying, if proven, went so far as to constitute an improper appropriation.”
Atari, Inc. v. North American Philips Consumer Elecs. Corp.,
“Not all copying, however, is copyright infringement.”
Feist Publ’ns,
It is a fundamental premise of copyright law that an author can protect only the expression of an idea, but not the idea itself.
See
17 U.S.C. § 102(b);
see also Baker v. Selden,
Nearly every work involves a blend of idea and expression. Because an author can only demonstrate substantial similarity by referencing those aspects of his work that embody his creative contribution, he will have a more difficult time proving infringement if his work contains only a minimal amount of original expression.
Universal Athletic Sales,
511 F.2d
[A] copyright on a work which bears practically a photographic likeness to the natural article ... is likely to prove a relatively weak copyright. This is not to say that, as a matter of law, infringement of such a copyright cannot be inferred from mere similarity of appearancе, but only that the plaintiffs burden will be that much more difficult to sustain because of the intrinsic similarities of the copyrighted and accused works.
First Am. Artificial Flowers, Inc. v. Joseph Markovits, Inc.,
In some instances, there may come a point when an author’s expression becomes indistinguishable from thе idea he seeks to convey, such that the two merge.
Educ. Testing Servs. v. Katzman,
By holding that Masquerade’s nose masks are copyrightable, we do not intimate that it has the exclusive right to make nose masks representing pig, elephant and parrot noses. On rеmand, it will be Masquerade’s burden to show that Unique’s nose masks incorporate copies, in the copyright law sense, of Masquerade’s sculptures, rather than sculptures that derive their similarity to Masquerade’s sculptures merely from the commonality of the animal subjects both represent.
Masquerade Novelty,
Here, as in
Masquerade Novelty,
the protectible originality of the allegedly infringed work is to be found, if at all, solely in its appearance. Kay Berry claims that Appellees infringed its copyright not by using the same public domain pоem, or inscribing a rock with text, but by copying the specific combination of elements it employed to give Sculpture No. 646 its unique look. Although the evidentiary burden upon it is high, for the reasons we have discussed, we conclude that Kay Berry is entitled to the opportunity to demonstrate that the Memory Stone is neither a unique creation, nor the unavoidable expression of a common idea, but rather an impermissible copy of Sculpture
Notes
. " 'Publication' is the distribution of copies ... of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies ... to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication.” 17 U.S.C. § 101. " 'Copies' are material objects ... in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproducеd, or otherwise communicated....” Id. Therefore, under these definitions, a copy of Sculpture No. 646 was published in the Catalog.
. We further note that we are unable, on this record, to determine whether Sculpture No. 646 was first published in the Kay Berry's catalog. The government, in an amicus curiae brief submitted at our request, stated that only those individual works first published, in the single work will be covered by the single work registration, citing U.S. Copyright Office, Compendium II: Compendium of Copyright Office Practices § 607.01 at 600-11 (1984) (“Works that are otherwise recognizable as self-contained may be registered on a single application and upon payment of a single fee, if they are first published in a single unit of publication and the copyright claimant of all works in the unit is the same.”) (emphasis added). The government claimed that to the extent that the single work contains both new and preexisting matter, it is a "compilation” or a "derivative work.” See 17 U.S.C. § 101 (2005). Accordingly, it contended, the copyright "extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work.” See 17 U.S.C. § 103(b) (2005). Furthermore, the government claimed, "[t]he copyright in such work is independent of, and does not affect ... any copyright protection in the preexisting material.” See id.
On remand, the District Court will need to determine in the first instance whether this presents a barrier to Kay Berry's registration. Although the issue is not before us on appeal, we note that decisions of this Court and others counsel that registration of a collective work is sufficient to support an actiоn for infringement of the underlying self-contained parts.
Educ. Testing Servs. v. Katzman,