*1 913 to ”) company F.2d contracted maintain Ratchford, 942 locksmith (quoting from fraud’ deposit (“The safety boxes can be the bank’s Prater, 705); at 1446 805 F.2d at 656); § charged States v. under United clearly has indicated Eleventh Circuit (8th Cir.1991) 966, Coney, 949 F.2d 967 any capacity’ in ‘connected phrase (employee company of armored car re- broadly to construed effectuate should be currency for transporting bank’s sponsible federal- congressional by protecting intent by § captured language); 656’s broad Ed- fraud.”); lenders from United ly insured ick, (employee corpora- 432 F.2d at 351 (4th 350, Edick, 432 v. F.2d 351 States providing proofing bookkeeping tion Cir.1970) corporation provid- (employee of 656). § charged properly services under to bookkeeping services ing proofing plain reading find that under a We by lan- “reached literal member banks 656, prosecut- government properly § 656, in class §of with inclusion guage” person Jones as a who was “connected ed “clearly eligible prosecution of those any capacity” with Bank One. congressional purpose”). required by § means Having decided III. Conclusion is it decide if Jones says,2 we must what judgment of the court is The district any capacity” with Bank One “connected AFFIRMED. § is to him. applicable such Jones, repair an ATM yes. answer is NCR, employed provided

man service have that it otherwise

for Bank would One his provide for Because of had to itself. INTERNATIONAL, PIVOT POINT behalf, granted Bank One work on its INCORPORATED, Plaintiff- including its property, to its Jones access Appellant, Cross-Appellee, access provided That special ATM vaults. v. fed opportunity to steal the him with the funds erally PRODUCTS, therein. insured CHARLENE INCOR- Yau, and Peter Defen- PORATED passing on that other circuits We note Cross-Appellants. dants-Appellees, found unanimously have similar facts 01-3888, Nos. 02-1152. any capacity” § 656’s broad “connected language encompass contractors whose Appeals, Court of United States possible made the services theft was Circuit. Seventh Gillett, they provided to the banks. See 6, June 2003. Argued of Brinks ar- (employee 249 F.3d at 1201 25, June 2004. Decided charged appropriately mored car service En Denied Rehearing Banc any § person as a “connected under Aug. 2004.* bank); federally insured capacity” with Meeks, v. 69 F.3d 743- United States (5th Cir.1995) (finding employees history limiting legislative devices. See arguments other Jones other makes at-,-, Lamie,-U.S. interpretive by pointing tools 124 S.Ct. 656’s reach itself, 1030-31, statute the statute's (noting outside the that an examination statutory notes and a 1918 Su- historical and legislative history predecessor statute and predecessor preme interpreting a Court case congressional is intent unneces- to determine them, We need not dwell on howev- statute. language is sary when the amended statute’s er, unconvincing, they because not are unambiguous). plain and they previously, extraneous. As stated * Flaum, Judge M. The Honorable Joel Chief meaning unambigu- where the of a statute ous, Honorable Frank H. Easterbrook apply straightfor- task our sole participate referring did wardly Ann Claire Williams to the facts at issue without *2 petition rehearing consideration en

banc. Neal, in hair stylists competi- Ger- involved (Argued), E. Robert Browne IL, Plain- Chicago, Passage then worked with a Ger- Eisenberg, & tions. ber Cross-Appellee. tiff-Appellant, Horst Heerlein to create man artist named original sculpture female human (Argued), Meyer & Meyer B. James *3 Although Passage discussed his vi- head. (Ar- IN, H. Gary, Martin Redish Wyatt, Heerlein, Passage give sion with did Maw, Brown, Rowe Chi- Mayer, & gued), any specific require- dimensional Heerlein IL, Defendants-Appellees, for cago, description, From Passage’s ments. Heer- Cross-Appellants. plaster a in entitled sculpture lein created RIPPLE, DIANE KANNE and Before “Mara.” WOOD, Judges. P. Circuit molds of were and sent Wax Mara made Hong Pivot manufacturer in Point’s RIPPLE, Judge. Circuit created exact re- Kong. manufacturer (“Pivot International, Point Inc. Pivot in polyvinyl of Mara chloride productions Point”), of action brought this cause (“PVC”). The the manufacturer filled Products, Inc., its and against Charlene with that and liquid expands form a PVC (collectively Yau “Char- Peter president process into of creat- hardens foam. lene”), infringement pursu- for copyright of ing sculpture developing the Mara and 501(b). § The district to 17 ant U.S.C. the mannequin sculpture the on took based summary judgment for the granted court months. approximately eighteen copied ground on the that the defendants head, matter, subject mannequin a 1988, February In when Point of Pivot Copyright the Act of under copyrightable Mara, it inspected first the PVC forms of (“1976 Act”), seq. § 17 U.S.C. 101 et mannequin’s hairline discovered following in the reasons set forth For high etched too on the forehead. had been judgment of we reverse opinion, corrected the mistake The manufacturer court remand the case and district second, Al- adding a lower hairline. by opinion. with this proceedings consistent first, higher hairline was visible though im- inspection, it was covered with upon I early reproduc- hair. The PVC planted Mara, ship- Pivot Point’s first tions of and BACKGROUND in mannequins May of ment A. Facts hairlines. possessed double edu- develops Pivot Point and markets that it its the same time received About hair techniques and tools for the cational Point shipment mannequins, of Pivot first in 1965 industry. It was founded design registration for the obtained internationally re- Passage, Leo Mara, specifically barehead- Pi- designer. aspect hair One nowned makeup with no human head ed female de- is the vot Point’s business in assigned rights all his hair. Heerlein heads, “slip-ons” velopment mannequin Pivot sculpture to Pivot Point. the Mara (facial mannequin slip forms that over a copyright notice displayed Point head) pieces. hair component mannequin. Pivot on each name of Point mid-1980s, Passage desired enjoyed great Point success with Pivot develop a imitate mannequin would respond To to cus- mannequin. new its runway “hungry high-fashion, look” demand, began Point market- tomer Pivot believed that such Passage models. with mannequin the Mara different ing premi- as a mannequin could be marketed hair, skin lengths of different types cutting-edge hair-stylists um item to however, subject is, If makeup; variations matter. there tones and then must were made to the facial fea- no alterations question a trial on the whether Liza ais mannequin. For customer tures of knock off of Mara.” R.401 at 1. The district identification, changed Pivot Point ease explained court although mannequin on the name based copyrightable works are under 17 U.S.C. color; instance, hair and skin Mara 102(a)(5), may § sculptures copy- implanted yak hair was mannequin righted language are limited of 17 “Sonja,” called and the Mara provides U.S.C. which relevant hair implanted with blonde was called “Ka- part: rin.” works shall include Such works artis- 1989, Charlene, At a trade show *4 craftsmanship tic insofar their form as products beauty by of founded wholesaler but their mechanical or utilitarian Yau,2 displayed Mr. its own “Liza” manne- aspects concerned; are design the of a quin, very appearance was close in which article, section, useful as in this defined to Pivot Mara. to the Point’s addition graphic shall be considered a pictorial, features, similar Liza strikingly facial also if, only work and to early a exhibited double hairline that the the extent such design incorporates mannequins possessed. Mara pictorial, graphic, or sculptural features 24, 1989, September On Pivot Point no- from, separately that be identified copyright infringement. ticed Charlene for of capable existing independent- and stop importing When Charlene refused of, ly aspects the utilitarian of the arti- selling mannequin, and the Liza Pivot cle. Point filed this action.3 court, According to the district there Proceedings B. Court District question sculp- no that Mara a was complaint Pivot Point filed a multi-count However, ture. in the district court’s in against district court Charlene. It al- view, sculpture served utilitarian ends. leged copyright violations federal law as beauty styl- “Students practice schools claims; well as state-law Charlene both hair on ing may practice Mara’s head and answered the complaint and counter- by makeup other skills applying Mara’s After discovery, claimed. extensive Pivot lips, eyes, and cheeks. parties dispute comprehensive Point filed a motion which primary.” functions are R.401 at 2. summary judgment complaint on its The district then explored court whether Charlene’s counterclaims. Charlene filed the artistic and utilitarian aspects Mara several for summary judg- cross-motions “separable” were purposes ment well. The district court tentative- piece’s copyrightability: statutory “The ly on July ruled these motions in 2001 and separability requirement copy- confines final ruling issued a in October 2001. protection to

right those 1. Merits apart that exist from its utilitarian value, and that could be removed without opinion, In its the district court stated reducing the principal dispute that: is usefulness of the item.” Id. “[t]he whether human is copyrightable head at 3. The court district observed that eventually 2. Mr. Yau was not unfamiliar Pivot Charlene obtained Shortly founding Point. registration before Charlene Liza mannequin. for its Yau Products Mr. had worked for Pivot Point. is conceptually useful article particularly this trouble- drawing line separable if it can on stand its own some. conceived, traditionally work of art and if statute, court, the district continued article in it is useful which embodied recognized suggest two generally equally would without it.” R.401 be useful physical separability separability: types Goldstein, Copyright: at 5 Paul (quoting The district conceptual separability. 2.5.3, Law & Practice at 109 Principles, separability explained physical court (1989)). The district court believed nature of when the ornamental occurs of this from strength definition “comes from can be removed object physically little, all, fact that differs object physical separability test of embraced [conceptual separability differs from by Esquire D.C. Circuit asking physical [Inc., v. Econ- majority Carol Barnhart copyrighted the features be whether omy Corp., F.2d Cover display, for separate off could sliced Cir.1985) this Applying Id. test led ].” whether one can conceive this but district court to conclude that Relying on comment process. because, cannot copyrighted Mara amendments, Report House on *5 though even one can conceive of Mara as [v. the second circuit Kieselstein-Cord art, displayed a as it not sculpture would Pearl, Inc., F.2d 989 632 Accessories if the that equally useful features (2d Cir.1980),] adopt to con- purported re- Pivot Point want to were separability as the exclusive test ceptual long So as a utilitarian function moved. (632 992, contrasting ap- F.2d that at makeup tutoring practice is and and Esquire Ringer, with 591 proach [v. fact Pivot sells Mara without that Points (D.C.Cir.1978)], opted F.2d 796 which a eye this is lip coloring shows that F.2d 591 physical separability, for not, Point’s function even Pivot 803-04). repair a court to Why should view, “primary” one—the unclear; history legislative removing value would be diminished identify any circuit did not ambi- second that Point the aesthetic features Pivot §in that to be re- guity 101 needed protect by copyright. wants to solved, and in the House a statement appears that on the face of Report what Id. require- to statutory text be two matter, dis- As final the district court a separa- (physical conceptual and

ments cases, tinguished two Hart v. Dan Chase just as bility) should be administered Co., 86 Taxidermy Supply F.3d in today’s not that proposition one is a Builders, Cir.1996), Superior and Form indulged. Su- legal climate Co., Taxidermy Supply Inc. v. Dan Chase permit the use of Court does preme (4th Cir.1996), Inc., which 74 F.3d 488 alter, history opposed to to legislative and of animal upheld copyrightability elucidate, statutory text. district court found mannequins. fish at 4. Id. unpersuasive, but concluded the Hart case say that cannot of Mara what “one statutory moorings, lack of Despite this mannequins: animal fourth circuit said of nevertheless reviewed the district court appearance’ ‘its own conceptual Mara is valued differing formulations it students to do but for what enables defi- separability and determined § 101 learn. ‘useful article’ Paul Gold- Mara proposed by nition Professor deploy Form Builders Superior “a graph- one: pictorial, stein was best Id. at 6. term.” incorporated ic or feature pursuant 2. Fee Petition therefore invalid Federal to Rule 83.4 fees are available under the Although Finally, the district court acknowledged Act, the district court’s order made it had the discretion to extend the Charlene, therefore, provision no for fees. motion; however, time to file sought attorneys’ ap- an award of fees of slightly stated that it was “not even dis- $421,915 proximately pursuant to 17 [extension], grant any posed because its U.S.C. 505. Charlene submitted fees parties knew well before October sought Point Pivot confer and likely judgment provide.” what exchange required by information as at 1. Id. Northern District of Illinois Rule Local Pivot now appeals Point the dis- 54.3(d). participate Pivot Point would not summary judgment trict court’s favor of any this exercise on the basis that fee Charlene; appeals Charlene from the dis- request untimely would be Char- because judgment respect trict court’s to its fourteen-day lene had missed the deadline attorneys’ petition. fee for filing a fee motion set forth in Federal 54(d)(2)(B). Rule of Civil Procedure II Charlene then moved for an ANALYSIS instruction from the district court Pivot ordering A. Standard of Review Point to in the participate request pro- fee This court reviews de novo district cess but the district court It refused. grant court’s summary judgment. See explained that “opinion declaratory City Chicago, Silk v. 194 F.3d judgment resolving this case on the merits (7th Cir.1999). In evaluating judg- *6 any provision attorneys’ did not make for ment, we all in “construe facts the light fees.” R.413 at 1. judgment Because the most favorable to the non-moving party did not respect contain order with to an justifiable draw all and reasonable and in- attorneys’ petition, fee the court district in ferences of that party.” favor Bellaver did appli- not believe Local Rule 54.3 was Quanex 485, (7th v. Corp., F.3d 491-92 Instead, parties by cable. the were bound Cir.2000). If the record shows “that there fourteen-day the set in deadline forth Fed- genuine is no any issue as to material fact 54(d)(2)(B). Furthermore, eral Rule the moving party and the is entitled to reading district court believed that of its law,” judgment as a matter of summary Local Rule 54.3—as not extending the time judgment appropriate. Fed.R.Civ.P. period allowed Federal Rule 54—saved 56(c); Catrett, see Corp. Celotex v. the local rule because otherwise it would 2548, 322, 106 U.S. S.Ct. 91 L.Ed.2d (1986). be inconsistent with Federal Rule 54 and 265 pro- Rule by Federal of Civil Procedure 83 scribed Judicial the Conference of the vides: United A States. local rule takes effect on specified by the date (1) court, the court district and acting majority Each district a remains in effect unless amended may, the judges, giving ap- of its district after abrogated by judicial court or public the propriate council of opportunity notice and an comment, Copies gov- circuit. of rules and make amend- and amend rules shall, upon erning practice. promulgation, ments local their A rule shall be judicial duplicative consistent furnished with—but to the council and the of-— Congress adopted Acts and rules Administrative Office of the United under States of §§ U.S.C. 2072 and public. and conform Courts and made shall available to the 83(a)(1) any numbering added). system pre- (emphasis uniform Fed.R.Civ.P. Copyrig'htability copyright protection B. (assuming tled met). requirements other of the statute are in this case is whether The central issue subject copy- mannequin Mara 1. Usefulness presents, at protection. This issue right Pivot Point submits that the Mara bottom, statutory interpreta- question mannequin is not a “useful article” for analysis begin our with tion. We therefore § purposes of 101 because its “inherent language provi- of the statute. Two portray appearance nature is to contained in 17 U.S.C. 101 are sions value,” runway models. Its Pi- continues inquiry. of our The first of the center Point, vot portrays “resides how well it description pictorial, graph- these is models, appearance runway just works: sculptural ic and depicting Cleopatra, the value of bust — example, ...— would inbe how well it “Pictorial, graphic, sculptural and approximates imagines what one the sub- include two-dimensional and works” ject Appellant’s looked like.” Br. at 19. fine, graphic, three-dimensional works upon Pivot Point relies decisions art, applied photographs, prints Form, Fourth in Superior Circuit charts, maps, globes, art reproductions, Builders and of the Second Circuit models, and technical draw- diagrams, proposition mannequins, Hart for the plans. ings, including architectural albeit those eases animal and fish man- artis- works shall include works of Such nequins, Specifi- are not useful articles. form craftsmanship tic insofar as their cally, explained the Fourth Circuit not their haechanical or utilitarian but mannequin provides the creative [a] concerned; of a aspects are expression form and of the ultimate ani- article, section, as defined in this useful display.... though mal Even covered pictorial, graphic, shall be considered skin, is not invisi- if, only to sculptural or work conspicuous display. in the final ble but design incorporates the extent head, jux- angle of the animal’s pictorial, graphic, features taposition body parts, of its and the separately from, that can be identified body final shape parts capable existing indepen- display portrayal is little more than the dently of, the utilitarian *7 of Indeed, underlying mannequin. of the article. portray the in- mannequin even provides The definition section further tensity body parts, of flexed or it can having an an ‘useful article’ is article “[a] grace reveal the of relaxed ones. None utilitarian function that is not intrinsic expressive aspects of these of a manne- of merely portray appearance to covering mannequin quin is lost convey An arti- article or to information. Thus, any aspect a skin. normally part cle that is of useful “merely por- to of the exists ” a ‘useful article.’ tray appearance” article is considered of the animal. § 101. As is clear from the defini- U.S.C. Builders, 494; Form 74 F.3d at Superior pictorial, graphic sculptural tion of (“The Hart, func- see also F.3d at 323 work, article[s],” only “useful as the term portray tion of the fish form is to its own defined, subject are to the limi- is further enough that fact is to appearance, and emphasized contained in the lan- tation bring scope Copyright it within the Act.”). guage above. If an article is not “useful” in Pivot Point’s Consequently, view, mannequin per- §in then it is a as the term is defined the Mara because to those of animal sculptural work enti- forms functions similar pictorial, graphic of in contravention of Federal Rule Civil mannequins, it is not a useful and fish Indeed, to full Procedure 56.5 our review therefore entitled own article and is many leads us to believe that the record protection. cited Charlene sus- documents a different us with presents Charlene interpretation. than one ceptible to more that, animal unlike the suggests It view. Superior at issue in Form mannequins Nevertheless, that the we shall assume Hart, manne- and in the Mara Builders is correctly court ruled that Mara district than have a useful function other quin does proceed to examine a useful article high-fashion of a run- image portraying usefulness, whether, it is ame- despite that Charlene, According to Mara way model. protection. to copyright nable practicing marketed and used for also is Separability 2. Charlene makeup application.

the art of places the record points to various A statutory language. We return to pur- that Mara is used for this establish article falls within the definition useful is, therefore, a pose and useful article sub- “only pictorial, graphic or works § ject limiting language of 101. to if, to the extent strongly disputes incorporates pictorial, graphic, sculp- Pivot Point argues sepa- a use and that can be record establishes such tural features identified rately from, existing on capable that the district court’s rebanee Char- and are independently of, resolves an the utilitarian alleged proof improperly lene’s It is com- against non-moving party of fact the article.” 17 U.S.C. 101.6 issue eye heavily on this fact it also sells Mara without or cheek 5. The district court relied concluding object: coloring, beauty-school that Mara a useful is so that students can own.) add their "applied Mara is a work of art” and dis- plays craftsmanship” R.401 at 2. "artistic Point —Pivot sculptor to commissioned man- language Prior the addition of this in the nequin head that emulates features of run- Act, Congress explicitly had way author- models—but serves utilitarian ends: beauty styling register practice Copyright Students in schools ized the "useful Office Indeed, may practice hair Congress on Mara's head and other articles.” when first ex- by applying makeup eyes, skills to Mara's copyright protection tended to three-dimen- lips, parties dispute and cheeks. The which copyright protec- sional works of art in primary. functions are Charlene Products art; objects objects tion was fine limited says primarily practic- that Mara is used applied protected. art still were not See ing makeup; pri- Pivot Point insists that its Goldstein, Copyright § Paul 2.5.3 at 2:58 mary styling. use is hair This factual dis- (2d ed.2004). changed adop- with the This pute might legal significance have if Pivot ("1909 Copyright tion of the Act of 1909 contending Point were that Mara's sole use Act”); explains: Professor Goldstein styling; (barely) possible hair then Act, protection The 1909 which continued *8 imagine a suitable head devoid art, dropped for three-dimensional works of (The legal significance of human features. they requirement that constitute fine art below.) possibility explicated of this But opened protection and thus the door to of only "pri- Pivot Point contends that Mara's 1948, Copyright useful works of art. In mary” styling; deny use hair it does not (if view, scope protection for Office broadened the of only, secondary that a use in its a one) three-dimensional works of art to cover application makeup is the of and other arts, craftsmanship "works of artistic insofar as beauty-school and the evidence would aspects their form but not their utilitarian permit jury a reasonable to conclude are concerned.” The United States Su- that Mara has no utilitarian value for make- (Pivot preme upheld interpretation up practice. says "gen- Court this Point that it 201, Stein, 213, erally” painted-on makeup, U.S. 74 S.Ct. [347 sells Mara with v. Mazer 460, (1954),] by negative holding implication reveals that 98 L.Ed. 630 that the which

921 and, Approach Copyright in- gested parties between ground mon Useful (1983). Articles, exam- deed, 707, courts that have among the 67 Minn. L.Rev. issue, added language, that this short, myri- ined no of the doubt well-aware Act, intended to distin- was by the policy of factual scenarios to which its ad enjoy protection guish creative works guidance applied, would have to be Con- design that do of industrial from elements wisely only general gress provide chose 94-1476, at 55 H.R.Rep. No. not. See guidance implemented to be on a policy (1976), 1976 U.S.C.C.A.N. reprinted in case-by-case through Copyright basis (stating purpose that the behind Office and the courts. a line “to draw as clear language this though the the statute do Even words of works of copyrightable possible as between answer, yield a definitive we believe works of uncopyrighted art and applied statutory language nevertheless Although the Con- design”). industrial evident, provides significant guidance our task. application goal was gressional courts presented the shall examine in more detail language this has We therefore Indeed, one difficulty. us, significant and language what that has to tell we many fine lines noted: “Of the scholar has necessary starting point to the return Act, none through Copyright that run task, § 101. our the line between troublesome than is more statutory language provides The sculptural and pictorial, graphic protectible ... of a useful article shall be “the utilitarian ele- unprotectible and works pictorial, graphic, sculptur- a or considered Paul Gold- design.” of industrial ments if, only al work to the extent 2.5.3, stein, § at 2:56 Copyright incorporates pictorial, graphic, ed.2004). can be identi- features that of this difficulty application in the capable separately fied come, in not have all likeli- language would of, the utilitarian existing independently hood, Congressional a to the surprise Although the itali- aspects of the article.” by Con- language employed drafters. phras- operative cized clause contains two bright-line language not the gress is separately es—“can be from” identified Indeed, the application. rule of universal existing independently capable and “are interpre- that have addressed the circuits believe, have the other courts of”—we uniformly problem tative now before us issue,7 that that have with this grappled wording that the recognized have statute, intend- amending Congress, di- supply categorical does not statute single, phrases two to state ed these rection, Copyright requires but rather to determine when integrated standard their the courts “to continue Office and between separateness is sufficient there art and in- distinguish applied efforts to Denicola, the utilitarian artistic Ap- design.” dustrial Robert C. justify copyright protection. Sug- A work to Design: AH Industrial

plied & permit registration of features of utilitari- in issue were intended fact that statuettes separately "can be identified an article that for use in articles of manufacture —electric copy- existing independently capable lamp not bar them from and are bases—did later, Copy- right. years Five as a work of art.” 207.8(a) (1949) promulgated that if “the right (quoting Office a rule C.F.R. Id. *9 202.10(c) (1959); is § function of an article its footnotes omit- sole intrinsic 37 C.F.R. unique utility, ted). work is the fact that the attractively shaped qualify it as a will not did, however, See note 8. regulation 7. art.” The work of infra 922 approach really is not of much use when the

Certainly, one to deter item Denicola, question is two-dimensional. See can mine whether material be “identified Indeed, supra, provi- at 744. because this obvious, separately,” and the most is to sion, words, to very its was intended rely capacity on the artistic material material, apply to is two-dimensional from the physically to be severed industri physical separability clear that a test can- Stein, v. See Mazer design. al 347 U.S. determining not be the exclusive test for (1954) 201, 460, 74 98 L.Ed. 630 S.Ct. copyrightability. (holding incorporated that a statuette into lamp copyrightable). the base of a is be ground It seems to common be When a three-dimensional article is the and, indeed, parties tween the the among inquiry, physical focus of the reliance on commentators, courts and that protec the separability be a helpful can no doubt tool copyright tion of the statute be also can in ascertaining whether the artistic materi conceptual ex secured when a question separated al in ists material sought between the design. industrial As Professor Denicola copyrighted and the utilitarian however, out, points such an which that is The approach incorporated.8 material Although skeptical precise question court was D.C. the district Circuit reversed. The language statutory encompassed regulation that the both before the court was whether the physical conceptual separability, implementing circuits the 1909 Act mandated that register interpreting Copyright copyright have been almost unanimous in Office for language types lighting regulation § to include pro- of 101 both of fixtures. at issue Builders, separability. Superior See Form Inc. vided: Co., Inc., "(c) Taxidermy Supply v. Dan Chase 74 If the sole intrinsic function of an arti- 488, (4th Cir.1996) (asking utility, F.3d 494 whether cle is its the fact that is the article mannequins animal unique attractively shaped functional will "conceptually separable However, from the qualify works' it as a work of art. Int’l, features”); Brandir Inc. v. shape incorporates of a utilitarian article Co., 1142, features, Cascade Pac. 834 F.2d Lumber sculpture, carving, such as artistic " (2d Cir.1987) (stating '[cjonceptual 1144 that pictorial representation, or which can be well”); eparability s alive and separately capable ex- identified and are Corp., Barnhart Cover Inc. v. Econ. 773 F.2d art, isting independently aas work of 411, (2d Cir.1985) (judging copyrightabil 418 eligible registration.” features will be for ity mannequin based on 202.10(b) torsos whether (quoting § Id. at 800 37 C.F.R. possess "forms or aesthetic artistic features (1976)). Copyright posi- Office took the physically conceptually separable that are or regulation "copyright tion that barred objects from the forms' use registration configu- shape for the overall or Indus., clothes”); display article, Norris Inc. v. Int’l ration of a utilitarian no matter how (11th Corp., Tel. & Tel. F.2d aesthetically pleasing shape configura- that or Cir.1983) (“Both legislative law case his may determining tion be.” Id. In whether tory separability encompasses indicate that accept reject proffered interpretation, physically works either of art that are severa- "[cjonsiderable weight the court noted ble conceptually from the utilitarian article or given agency’s interpretation to be severable.”); v. Kieselstein-Cord Accessories regulations,” especially when "an administra- Pearl, Inc., (2d Cir.1980) 632 F.2d interpretation tive relates to a matter within (applying conceptual separability). test of expertise.” field of administrative Id. Only rejected appellate Copyright one court has 801. The court concluded conceptual separability. Esquire, adopted idea See Office had "reasonable and well- (D.C.Cir.1978). 202.10(c).” Ringer, supported interpretation Inc. v. Id. 591 F.2d case, Act, view, arising interpretation under the 1909 at 800. In the court's Copyright grounded principle register refused to "the Office had that industrial designs eligible lighting copyright.” Id. outdoor fixtures. The dis- are not court, however, trict interpretation believed the fixtures The court also believed that the copyrightable support legislative history were and issued a writ of man- found in the However, newly damus that the issue. enacted Act. The court acknowl- *10 Point submits that “the of that Pivot test acceptance not in the difficulty lies statutory language conceptual separability should reflect the which the proposition, artistic, in application. but focus of law—the not clearly contemplates, Point, following by marketability, design Pivot or process, As noted use- determining suggested for have been Appellant’s tests fulness.” Br. at 26. Accord- aspects utilitarian the artistic and Point, when inquiry Pivot the central is ing to “ ” separable: conceptually are useful articles a of art.’ whether the article is ‘work 1) “primary” artistic features explains: Id. Pivot Point further “subsidiary,” Kies- utilitarian features in Conceptual separability would inhere 2) 993; elstein-Cord, the use- 632 F.2d at integrated a “work of art” into a useful marketable ful article “would still be article, put or a “work of art” to unex- the communi- segment significant some use, independent con- pected since quali- of its aesthetic ty simply because utility Concep- art and coexist. cepts of David Nim- ties,” B. Nimmer & Melville in tual would not exist 2.08[B][3], § mer, Copyright 1 Nimmer on simply useful article rendered aestheti- 3) (2004); article “stimulate[s] at 2-101 cally pleasing, independent since the that concept in the mind of the beholder exist, only art concept of does not by its concept from the evoked separate is utility, to its so “artistic” embellishment Barnhart, function,” utilitarian actually “artistic” features are 4) J., (Newman, dissenting); F.2d at n utilitarian. Should the “artistic” embell- significantly not artistic was utility ishment of reach the level of considerations, by functional see influenced art,” however, conceptual sepa- “work of Int’l, (adopting at 1145 834 F.2d Brandir rability may exist. Denicola, at supra, in the test forwarded test, sug- Pivot Point Id. at 26-27. This 5) 741); features “can stand the artistic the additional benefit of “sa- gests, has traditionally con- as a work of art alone most, all, if not of the current tisfying] in ceived, ... the useful article which conceptual separability.” Id. definitions of equally useful it is embodied would be at 27. 2.5.3, it,” Goldstein, 1 Copyright without contrast, Charlene, by lauds district 6) 2:67; the artistic features are not at Goldstein’s adoption of Professor utilitarian, court’s Patry, Copy- F. see William (1994). test,” Charlene test. “Under Goldstein’s right Law & Practice however, history edged, legislative Id. 803-04. that the ambiguity”; explained: passages from from the set forth “free As is evident arguably support above, Esquire draw some could the D.C. Circuit the issue addressed protectable that a ele- from the statement proce- Esquire different arose in much separa- of a utilitarian article must ment legal environment than the issue dural and ” conceptually "physically or ble Esquire present case. The court's focus design. any But adopted pursuant for- regulation to the was a ambiguity possible raised this isolated obligation to defer to the law and its mer excerpt disappears reference when agency’s interpretation of the law embodied entirety. The underscored considered in its Furthermore, regulation. the court unequivocally that passages indicate acknowledged Act was "not the 1976 configuration of a utilitari- overall it. Id. at 803. applicable to the case before” object, by aesth- even if it is determined differences, we do not believe these Given considerations, etic as well functional that its D.C. Circuit would conclude that the legisla- eligible copyright. Thus the disposed the issue of Esquire decision congressional history, under- tive taken presently this conceptual separability before law, Reg- existing standing reinforces court. position. ister's *11 “ asserts, circuits, pictorial, graphic sculptural Among ‘a the Court of Ap- incorporated peals feature of a for the Second Circuit has had occa- conceptually if separable useful article is it sion to wrestle most comprehensively with can stand on its own of art as work “conceptual the notion of separability.” conceived, traditionally the useful believe, represents, Its case law we article which is embodied would be journey intellectual explored that has ” equally Appellees’ useful without it.’ Br. key aspects problem. of the We therefore 5; (quoting at 26 R.401 at emphasis add- study key turn to a stages of doctri- ed). approach Charlene contends that this development nal in its case law. mirrors that adopted majority a. Inc. Economy Barnhart v. Cover (2d Corp., Cir.1985), 773 F.2d 411 “the The Second Circuit grappled first closely

most precedent related to the case the issue of conceptual separability in Appellees’ at bar.” Br. at 26. Pearl, Kieselstein-Cord v. Accessories Inc., Cir.1980). 632 F.2d 989 In that Although present sides thoughtful both case, Kieselstein-Cord, jewelry designer, explanations tests, for their proposed we had created a line of perceive jew- decorative and shortcomings parties’ inspired by art; eled belt buckles respect choices. With works of Pivot Point’s fo- art,” he copyright registrations cus on the article as a obtained “work of it is for his certainly designs. successful, Congress, correct that When the line enact- (“Pearl”) ing attempted by Pearl, Inc., to separate the artis- Accessories copied However, tic from designs own, the utilitarian. ap- this and marketed its less- proach necessarily judges expensive involves in a versions of the belt buckles. qualitative evaluation of artistic endeav- Kieselstein-Cord then sued Pearl for copy- judicial ors—a function for which right office is infringement; however, Pearl hardly qualifier. respect With to the claimed that the belt buckles were not “ Charlene’s approach, we believe that copyrightable they because were ‘useful test, alone, applied least when is tied too ‘pictorial, articles’ with no graphic, or closely physical and, conse- sculptural features that can be identified quently, give does not sufficiently from, wide separately capable and are of exist- Congress’ berth to determination that ar- ing of, independently the utilitarian as- tistic conceptually material separate from pects’ of the buckles.” Id. at 991-92. The the utilitarian can satisfy the statu- Second disagreed. Although Circuit it did tory mandate. specific articulate a test for evaluating conceptual separability, it focused on the

In articulating a meaningful approach to “primary” “subsidiary” elements of conceptual separability, we note that we the article and concluded: are not the court appeals first to deal in appellant’s We see problem. with this belt buckles con- The work of our col- ceptually separable elements, leagues in the other provides sig- circuits apparently nificant insights into our have the buckles’ understanding of wearers Congressional Indeed, who have used them intent. as ornamentation even when judges parts those of the disagreed body have on other than the appro- priate application waist. Congressional primary ornamental aspect them, mandate to the case Vaquero before their and Winchester buckles insight yield a bountiful conceptually harvest for separable those from their of us who now walk the same interpreta- subsidiary utilitarian function. This tive path. conclusion is not at variance with the e.g., decorating props signs with- intent to distin- congressional expressed un- applied art and copyrightable any clothing or While guish out accessories. *12 design. Pieces industrial copyrightable may this indicate that the forms are art, may buckles be applied these valuable,” “aesthetically satisfying and jewelry, the form of which considered to show that the forms is insufficient protection. subject copyright aesthetic or artistic features possess omitted).9 (internal citations Id. at 993 conceptually sepa- physically that are from the forms’ use as utilitarian rable b. objects display clothes. On the con- revisited issue The Second Circuit trary, possess the forms extent in Carol Barnhart conceptual separability features, aesthetically even pleasing Corp., 773 F.2d Economy Inc. v. Cover when these features are considered Cir.1985). case, In that Carol Barn- aggregate, they conceptu- cannot be items, hart, display provider of retail existing independently of their alized as consisting of developed mannequins four function. utilitarian of shirts and display for the human torsos (internal omitted). citations The Id. at 418 registra- copyright It jackets. obtained rejected argument court also of the forms.10 When tions for each The controlling. Kieselstein-Cord was Cover, Economy copied competitor, majority explained distinguished that what infringe- Barnhart claimed designs, Carol Cir- from the copyright. ment of that Second the Kieselstein-Cord buckles copy- designs cuit held that the were “that ornamented Barnhart forms was rightable. explained: It any not in surfaces of the buckles were

[Wjhile has increas- copyright protection functions; required by their respect cover articles ingly been extended to thus artistic and aesthetic features would dimension, Congress having a utilitarian to, or having conceived as been added be protec- explicitly has refused utilitari- superimposed upon, an otherwise art or industri- applied tion for works an article.” Id. at 419. have aesthetic or artistic al which and com- Perhaps the most theoretical sepa- features that cannot be identified sepa- “conceptual prehensive discussion rately the useful article. Such separabili- rability,” opposed physical regardless copyrightable are not works dissenting opinion found in the ty, be they may “aesthetical- of the fact that Barnhart, Newman Judge and valuable.” ly satisfying possible reviewing 419. After F.2d at principles, per- these we are Applying conceptual separability, ways to determine the aesthetic and ar- suaded that since forth his choice Judge Newman set Barnhart forms are tistic features of the rationale: use as utili- inseparable from the forms’ How, then, “conceptual separateness” copy- tarian articles the forms are view, the an- my to be determined? .... stresses rightable [Barnhart] “conceptu- the word derives from swer responded to as forms have been “con- features to be al.” For the forms, and have been used clothes, from the ceptually separate” modeling than purposes other four, were un- forms (silting by designation) two of the Judge dis- Weinstein Kieselstein-Cord, clothed, layer 632 F.2d at 993. were formed with one See and two sented. specifically for clothing meant and were mannequins at a total of four 10. There were display of outerwear. issue, two female. Of those two male and separate article that embod- rian function. The concept useful will design, normally the article must stimulate ies the be that of work of art. concept in the mind of the beholder Id. at 422-23. separate concept that is from the evoked c. function. The test its utilitarian may reasonably turns on what be under- Circuit soon con- Second addressed occurring stood to in the mind of the ceptual again in Brandir In- or, might say, in beholder as some ternational, Inc. v. Cascade Lum- Pacific eye” of the beholder.... “mind’s *13 Co., Cir.1987). ber 834 F.2d That artist,

case involved the work of an David Levine; specifically, Levine had created a “separateness” of the utilitarian thick, sculpture of interwoven A wire. concepts engendered and non-utilitarian cyclist friend of Levine’s realized the design a perplex- article’s is itself could, modification, sculpture with function think ing requisite I concept. “sepa- the bicycle put as a rack and thereafter Levine design rateness” exists whenever the International, in touch Brandir Inc. ordinary in the mind of creates the ob- (“Brandir”). The artist and the Brandir concepts server two different that are engineers modify worked then to the inevitably entertained simultaneous- sculpture produce to and mar- workable ly. Again, example the of the artistical- bicycle rack. ketable Their work culmi- ly designed displayed chair in a museum Rack,” nated in the “Ribbon which Brandir may helpful. ordinary observer began marketing in Shortly 1979. thereaf- expected apprehend the ter, (“Cas- Cascade Pacific Lumber Co. object chair of a whenever the is viewed. cade”) began selling and, product, similar addition, may, in He entertain the con- response, applied in Brandir for copyright art, but, cept of a work of if this second protection began placing copyright no- concept engendered in the observer’s Office, Copyright tices on its racks. The simultaneously concept mind with the of however, rejected registration on the function, req- the article’s utilitarian ground any that the rack did not contain “separateness” uisite does not exist. “capable element that independent The test is not whether the observer copyrightable pictorial, existence as a object recognize fails to as a chair graphic apart work from the concept whether but shape of the useful article.” Id. at 1146. displaced utilitarian function can be in possible The court first considered the the mind some concept. other That conceptual separability light tests occur, ordinary does not at least for the and, past notably, attempted decisions observer, viewing when even most attempts: to reconcile its earlier artistically designed may It chair. oc- cur, however, viewing Perhaps when some other the differences between the object if majority the utilitarian function of the and the dissent Carol Barn- object all; perceived may might is not also hart they have been resolved had occur, even when the utilitarian function had them the on before Denicola article observation, perceived by perhaps Applied Design: aid- Art and Industrial A by explanation, concept ed Suggested Approach Copyright Articles, displaced utilitarian function can be [67 Minn. L.Rev. 707 Useful (1983) argues the observer’s mind while he entertains Denicola ].... “the separate concept statutory requires of some non-utilita- directive a distinction on the influence of utilitarian concerns design and of industrial works between ... design process may help the de- “allevi- origins lie outside whose works envi- despite against the utilitarian ate the de facto discrimination sign process, they appear.” He nonrepresentational regret- in which art that has ronment copy- statutory limitation much of tably accompanied the current views identify attempt as “an rightability analysis.” Id. at 745. appearance form elements whose (footnotes omitted). Id. at 1145 perspective of the unconstrained

reflect Professor Denicola’s test Applying artist,” being the such features not Rack, the court found that the the Ribbon design. Id. at of industrial product copyrightable. The court rack was therefore, turn should “Copyrightability, merely adopted Brandir “[h]ad stated prof- between the relationship on the existing sculptures bicycle as a one industrial process and the fered work rack, to a utilitarian application neither the suggests He Id. at 741. design.” commercialization of that use end nor characteristic of industri- “the dominant object to forfeit its would have caused nonaesthetic, is the influence of al *14 Id. at 1147. copyrighted status.” Howev- and hence con- utilitarian concerns” er, compared Rack was when the Ribbon “ultimately copyrightability cludes that court, continued the sculptures, to earlier the extent to which depend on should essentially prod- “in its form final un- expression artistic the work reflects design.” uct of industrial Id. by functional considerations.” inhibited Rack, de- creating In the RIBBON the test in the To state the Denicola Id. clearly adapted original ... the signer if conceptual separability, language to accommodate and aesthetic elements merger of reflect a design elements These al- purpose. further a utilitarian considerations, functional and aesthetic of the RIBBON tered features cannot aspects of work be the artistic Rack, including spacesaving, open the conceptually separable said to be by widening upper the design achieved Conversely, elements. the utilitarian ..., straightened vertical ele- the loops identified design elements where above-ground in- and ments allow judg- reflecting designer’s artistic rack, ability to fit of the installation of func- independently ment exercised and the bicycles mopeds, all and types influences, conceptual separability tional heavy-gauged tubular construction exists. steel, are all fea- rustproof galvanized Denicola’s that Professor We believe safe, for a to make tures combine for con- provides the best test approach secure, system of maintenance-free and, accordingly, ceptual bicycles mopeds. parking First, reasons. adopt it here for several the hold- is consistent with approach may Rack ... the RIBBON While In Kiesel- ings previous of our cases. for its aesthetic worthy of admiration stein-Cord, example, the artistic as- alone, it nonetheless qualities remains purely reflected pects of the belt buckles design. Form product of industrial choices, independent of the aesthetic inextricably intertwined function are function, Barn- while buckles’ rack, design being as its ultimate of the tor- the distinctive features hart pressures of utilitarian much result design and accurate anatomical sos—the .... Thus there re- choices as aesthetic shirts and collars-—showed sculpted the RIB- element of mains no artistic of functional con- clearly the influence identified as Rack that can be Second, BON emphasis the test’s cerns .... 928 “capable existing forms is their

separate portrayal inde- usefulness of, pendently, aspects of the of animals.” appearance “by the article.” mannequin definition forms are not useful articles.” Id. at 1146-47. Superior Id. at 494 (quoting Form Build- d. Co., Taxidermy Supply ers v. Dan Chase experience We believe that Inc., (E.D.Va.1994)). F.Supp. 223 Second Circuit also reflected in the more however, court, also considered recent of the Fourth encounter Circuit whether, useful, the utilitarian and problem. Superior

with the same aesthetic mannequin were Builders, Form Inc. v. Dan Chase Taxi- separable: Inc., (4th Co., dermy Supply F.3d 488 argument To the extent that an can be Cir.1996), the court considered whether mannequins made that this case mannequins qualified animal for copyright perform a utilitarian function —other protection. The Fourth Circuit first con- portraying by sup than themselves — mannequins sidered whether the were use- skins, porting the mounted we believe §by ful articles as defined and con- conceptually separable function to be not: they cluded that were from the works’ features. provides A mannequin the creative Int’l, Inc. See Brandir v. Cascade Pac. expression form and of the ultimate ani- Co., Lumber F.2d mal Even display.... though covered Cir.1987) (“Where design elements can skin, with a is not invisi- reflecting be identified the designer’s conspicuous ble but the final display. *15 artistic judgment independent exercised head, The angle jux- of the animal’s the influences, ly of conceptual functional taposition body parts, of its and the exists.”); Kieselstein-Cord body shape parts of the in the final Pearl, Inc., v. by Accessories 632 F.2d display is more than portrayal little the Cir.1980) (2d (finding 993 of the underlying mannequin.... None element of conceptually belt buckle sep of expressive aspects these of a manne- function). arable from utilitarian quin by covering is mannequin lost the Thus, Id. Thus, specifically without any adopting with a one aspect skin. conceptual of separability, of the the tests of mannequin “merely por- exists tray of Fourth appearance” the animal. Circuit determined that artistic See 17 put U.S.C. work into the animal copyrightable; frame was the fact

... that a It is portrayal the animal’s skin placed was on the model body expression by and that the given the mannequin model, therefore, protectable display is thus under was useful Copy- right Act. of the agree negate We therefore skin did not artistic district court in this case because elements of design.11 “the 11. Notably, copyright v. Dan Taxidermy protection]?” in Hart Chase Id. at 321. The Sec- Co., Supply Cir.1996), 86 320 F.3d ond Circuit that it is: resolved shortly Second Circuit thereafter addressed agree We do not that Barnhart mandates question a fish whether was finding mannequins that fish are "useful copyrightable. Although the court did not undeserving copyright protec- articles” specifically address today, issue before us tion. ... believe that [W]e do not the Barn- analysis its helpful. Referring is nevertheless analogized hart torsos can be the fish in Barnhart, to its decision in Carol the Second Barnhart, headless, this case. In arm- posed question simplistical- Circuit rather less, styrene ly: backless torsos were little taxidermy purposes "Is [for different degree creativity.” minimal Feist

e. Publ’ns, Co., Inc. v. Rural Tel. Serv. case final Second Circuit There is one 340, 345, 111 S.Ct. U.S. Mattel, Inc. v. comment. that bears (1991)-There L.Ed.2d 358 are innu- Co., 365 Manufacturing Goldberger Doll noses, ways making upturned merable (2d Cir.2004), the Second Circuit F.3d lips, widely spaced eyes. and Even bow expres- particular that a rejected the idea many if the record had shown that dolls face not on a doll’s was sion of features noses, possess upturned lips, bow The case subject copyright protection. eyes, it not wide-spread would follow copying of the alleged of the arose out assuming it each such doll— Barbie dolls features of Mattel’s facial independently copied created and not Manufacturing when cre- Doll Goldberger enjoy protection from others —would doll. On Gold- ating “Rockettes 2000” from copying. summary judgment, berger’s motion (footnotes parallel citations Id. pro- “copyright court held that the district omitted). Additionally, the court noted the eyes, to Barbie’s did not extend tection ” that the scope copyright protection nose, .... Id. at 134. The and mouth enjoyed: Barbie dolls it did Although Circuit reversed. Second ideas; conceptu- protect specifically copyright in terms does not speak reasoning protects only particularized the author’s the court’s separability, al instructive; Thus, it stated: of the idea. Mattel’s expression nevertheless visage up- in a doll with an copyright com- that standard or proposition nose, widely lips, spaced turned bow incon- protected are not mon features eyes prevent competitor will not from law. To merit sistent with noses, upturned bow making dolls with need copying, a work protection widely eyes, even if the lips, spaced It novel unusual. particularly not be taken the idea from Mat- competitor has “independently cre- need have been competitor example, long so as the “some tel’s possess the author and ated” *16 perior Builders v. Chase Taxider- glorified used to dis- Form Dan than coat-racks more Co., (4th Cir.1996) clothing The torsos were play my Supply in stores. 74 F.3d 488 designed present clothing, their to holding that (distinguishing Barnhart and contrast, by peo- taxidermy, own forms. In "sculp- taxidermy mannequins are mammal skin; they ple more than fish look for than "useful articles” tural works” rather superfi- complete "fish.” The wish to see a aspects serve their utilitarian because fish, of the such as its cial characteristics “merely portray appearance” of the to texture, conveyed admittedly color animal).... skin, volume, shape, by but the mannequins even if We that fish conclude by depicted of the animal are movement articles,” are useful in- considered "useful the fish is underlying mannequin. Whether they "portray appearance.” the[ir] sofar as tail, resting, jumping, wiggling its shown as copy- § them 101. That makes 17 U.S.C. plankton, is preparing to munch on some or rightable. by par- by mannequin dictated omitted). Thus, (internal at citation Id. form, by the skin. ticular distinguished fish manne- the Second Circuit short, designed mannequin is In the fish however, mannequins; quins from human at. the fish to be looked That mannequins that the fish so on the basis did skin, by viewed a fish meant to be clothed term is articles” as were not "useful own, naked and on its makes no rather than that, § al- not on the basis defined of the fish form is difference. The function useful, aspects physi- though were the artistic appearance, portray and that fact to its own separable the use- cally conceptually from or scope enough bring to it within 101; the article. ful accord Su- Copyright Act. 17 U.S.C. copied particularized item, i.e., has not Mattel’s use of the “primary orna- nose, expression. upturned An lips, bow aspect” mental versus “subsidiary utili- eyes and wide are the “idea” of a certain tarian object function” of the at issue. 632 type of doll face. That idea belongs not Barnhart, F.2d at the Sec- public Mattel but to the domain. But ond Circuit moved closer process- to a protect Mattel’s will its own approach: oriented particularized expression of that idea distinguishes What those [Kieselstein- competitor copying and bar a from Mat- Cord] buckles the Barnhart forms tel’s realization of the Barbie features. is that the ornamented surfaces of the (citations omitted). Id. at 136 any buckles were not in respect required by functions; their utilitarian the artistic Application C. and aesthetic features could thus be con- Each of object these cases differs in the to, ceived of having been added by issue and the method which the court superimposed upon, an otherwise utilita- object evaluated whether the was entitled rian unique article. The artistic design Yet, to copyright protection. each court wholly unnecessary performance attempted give effect to expressed “the of the utilitarian function. In the case congressional distinguish intent copy forms, of the Barnhart on the other rightable applied art and uncopyrightable hand, the features claimed to be Kieselstein-Cord, aesthet- design.” industrial artistic, ic or 993; Barnhart, e.g., configura- F.2d at see the life-size also Carol F.2d at 417-18 tion of (reviewing legislative histo the breasts and the width of the ry detail and concluding although shoulders, are inextricably intertwined “copyright protection increasingly has feature, with the utilitarian display been extended to cover having articles of clothes. Whereas a model of a human dimension,” utilitarian Congress did not torso, in order to serve its utilitarian intend all useful articles that are “aestheti function, must configuration have some cally satisfying or copy valuable” to be of the chest and some width of shoul- Int'l, rightable); Brandir 834 F.2d at 1145 ders, a belt buckle can serve its function (adopting Professor Denicola’s test satisfactorily any without ornamentation makes eopyrightability dependent upon type that renders the Kieselstein- “the extent to which the work reflects Cord buckles distinctive. expression artistic uninhibited function Thus, 773 F.2d at 419. it was the fact that (internal al considerations” quotation the creator of the torsos was driven omitted)); marks and citations Superior concerns, display as how Builders, (distin Form 74 F.3d at 494 clothes would fit product, on the end *17 guishing the animal mannequins at issue deprived the human torsos of copyright from “aesthetically pleasing articles of in protection. design”). dustrial process-oriented This approach for con- The Second Circuit cases exhibit a pro- ceptual separability focusing pro- on the — gressive attempt forge judi- to a workable creating object cess of the to determine approach cial capable of giving meaning to whether it is entitled copyright protec- to Congressional the basic policy decision to fully tion—is more articulated Brandir distinguish applied art from uncopyright- and indeed reconciles the earlier case law able industrial art or design. In Kiesel- pertaining to conceptual separability. stein-Cord, the Second Circuit attempted distinguish to expression approach artistic [T]he from in- is consistent with the design by dustrial focusing on present holdings the previous our cases. In Kies- elstein-Cord, example, “whether the can design the artistic elements be iden- aspects of the belt buckles reflected reflecting designer’s tified as the artistic choices, independent of purely aesthetic judgment independently exercised of func- function, while in Brandir, buckles’ tional F.2d influences.” at the distinctive features of the Barnhart If the 1145. elements do reflect the inde- design accurate anatomical torsos —the pendent, judgment designer, artistic of the sculpted shirts collars— conceptual separability exists. Converse- clearly influence of showed function- ly, when the of a useful article is Though al concerns. torsos bore “as much the pressures result of utilitarian features, it artistic was evident the de- choices,” as aesthetic id. at the useful signer those incorporated features conceptual- and aesthetic are not elements usefulness of the torsos as further the ly separable. mannequins. this to the Applying test Mara Brandir, F.2d at 1145. mannequin, we must conclude that Furthermore, Brandir is not incon Mara face is subject copyright protec sistent the more theoretical rendition tion. It certainly is not difficult to concep Judge in his Carol Newman Barnhart face, independent tualize a human of all of requisite ‘separateness’ dissent —that “the features, i.e., specific facial Mara’s exists creates in the whenever nose, shape eye, upturned of the ordinary mind of observer two an different structure, angular jaw cheek and concepts inevitably that are not enter would serve the utilitarian functions of a simultaneously.” tained 773 F.2d at 422. and, proven, hair stand of a makeup product When a has reached final form Indeed, model. one is not able to functional or predominantly result of por of a conceive different face than that considerations, it necessarily utilitarian trayed mannequin, on Mara but one be for the will more difficult observer easily visage can another conceive of simultaneously two con entertain different high-fash portrays “hungry look” on object and cepts artistic the utilitari —the runway ion as Mattel is enti model. Just object. circumstances, Brandir particular own protection tled for “its providing has the benefit of a more added nose[], expression” “upturned ized of an methodology judicial by articu workable Mattel, eyes,” lips, widely spaced bow lating driving principle concep behind (and, 365 F.3d so too is Heerlein separability- tual influence of industri —-the therefore, assignee of Pivot Point as design. al the ultimate form of the When registration) to have entitled his object in is “as much the question result “hungry protected look” expression choices,” as aesthetic pressures copying. inextricably function are inter “[f]orm and twined,” aspects and the artistic conceptualized existing Mara object separated from its utilita cannot display in hair independent from its use rian purposes copyright pro product make-up training because it is the Brandir, F.2d at tection. judgment. When Heerlein’s artistic Passage approached Heerlein about creat- exists,

Conceptual *18 Passage did not ing sculpture, the Mara therefore, aspects an when the artistic dimensions provide specific Heerlein with “conceptualized existing article can be measurements; indeed, no there is evi- independently of their function.” judgment Barnhart, dence Heerlein’s artistic F.2d at 418. This necessarily by functional consider- independence is informed was constrained Passage require, respect did not for in- with to attorneys’ ations. fees must be stance, sculpture’s eyes that the be a cer- cross-appeal respect vacated. The tain width to accommodate standard-sized attorneys’ fees is moot. may Pivot Point eyelashes, that the at a brow be arched recover its costs this court. angle easy certain to facilitate make-up REVERSED AND REMANDED; CROSS-APPEAL application sculpture or that the as a whole Dismissed

not exceed certain dimensional limits so as to fit Pivot existing packag- within Point’s KANNE, Judge, dissenting. Circuit considerations, ing system. they Such had Writing majority, for the Judge Ripple present, weigh against been would a deter- has applied thorough his usual and schol- mination that purely product Mara was arly approach to this difficult intellectual contrast, By of an artistic effort. after however, property problem; join I cannot Passage met with Heerlein to discuss Pas- majority opinion because I am not sage’s “hungry-look” model, idea for a persuaded that the mannequin “Mara” Heerlein implement had carte blanche to copyrightable. All functional items have that vision as he saw fit. Consequently, aesthetic If qualities. copyright provided situation, this present- is not such as was protection simply for functional items be- ed to the Second Circuit in Carol Barn- qualities, cause of their aesthetic Con- hart, (“accurate certain which features gress’s policy gives choice that protec- less sculpted anatomical and the shirts tion in patent than would be collars”) and were included in undermined. See American Dental Ass’n Brandir, purely functional reasons. Ass’n, v. Delta Dental Plans 126 F.3d Furthermore, 834 F.2d at 1145. unlike (7th Cir.1997). headless, armless, styrene “the backless torsos” glori- which “were little more than majority rightly assumes that Mara fied display clothing coat-racks used to in is a “useful article” as defined 17 U.S.C. stores,” Hart, 86 F.3d at the creative § 101. Opinion at 920. To copy- receive aspects sculpture of Mara were meant right protection work,” “sculptural as a Thus, be seen admired. because then, Mara must come within the narrow product Mara was the of a process creative placed restrictions on “useful articles” in concerns, unfettered functional its the definition of pictorial, graphic, and sculptural features “can sepa- be identified sculptural works: from, rately capable existing design of a [T]he useful article ... shall of,” independently utilitarian aspects. its considered a ... sculptural only work It therefore requirements meets the if, to the extent conceptual separability subject and is design incorporates ... sculptural fea- copyright protection. tures that can separately be identified from, capable and are of existing inde-

Conclusion of, pendently the utilitarian aspects of subject The Mara copy- the article. right protection. We therefore must re- added). 17 U.S.C. 101 (emphasis As the summary judgment verse the in favor of noted, district court requires, the statute Yau; Charlene Products and Mr. the case face, on features must is remanded for a trial on Pivot Point’s be separately identified from infringement Furthermore, the utilitari- claim. be- aspects cause Charlene of the article (“conceptual sepa- Products and Yau Mr. prevailed have not rability”) they on the merits at must independent- this exist point, judgment ly of the district court from the utilitarian of the article *19 pur- from their functional cally separable in to receive order separability”) (“physical copyrightable. both As to whether and are therefore protection. pose copyright are separability physical conceptual Next, court considered vari- the district most courts copyrightability, required meaning of “con- restatements of the ous have concluded and commentators (whether can separability” features ceptual appropriate. test is the other only one or separately conceived of identified or be here be- presented is not But that issue applied aspects) from the utilitarian regardless copyrightable Mara is cause one to Mara. Profes- appropriate the most applied. both or either of whether Goldstein, treatise, Copyright: sor his first, separability Taking physical Practice, presents a Principles, Law & law from case examples used district court statutory explanation of reasonable features sculptural that the to illustrate incorporat- “a ... feature text: re physically items be many useful article is in the of a useful ed object separately and sold from the moved if it can on its conceptually separable stand functionality affecting the without traditionally con- a work of art own as Stein, See, v. e.g., article. Mazer useful ceived, if the useful article which (1954) L.Ed. 630 U.S. S.Ct. equally useful with- is embodied would be of a dancer sculpture a (holding that conceptually separa- it.” Mara has no out lamp may be base of carved into the protection to which ble features v. Accesso copyrighted); Kieselstein-Cord incap- are granted. Her features could be Pearl, Inc., Cir. 632 F.2d 989 ries separately from 1980) being able of identified buckles that decorative belt (holding objects features. Without separate as utilitarian use of those copyrighted be could pants). up features, to hold one’s head and neck mannequin’s sold not an on a egg more than would be little hand, Mara, only func- has on the other stick, purpose. for its intended useless Thus, sepa- any physical tional attributes. nor con- physical neither possesses Mara not be of her would portion ration of a aspects. ceptual separability. of her utilitarian independent teaching beauty schools as is sold to She concluding Congress majority, device; style apply her hair and students integrated single, intended “to state training pur- for such realistic makeup as standard,” must that the standard deduced subjects. mannequin A head on live suits may This separability.” “conceptual neck, eyes and or with different without a correct, very to divine as it is difficult utilitari- musculature, not serve the would conceptu- physical and between distinction teaching makeup or purpose applying prop- if those standards al to facial matching styles hair the art of however, view, my erly stated. explained: court As the district features. conceptual sepa- explanation of majority’s to flatter the style hair “Beauty students in the statute. As lacks a basis rability face, on featureless ovoids. not to be worn it, conceptual separabili- majority sees training of a head The use aspects of ... when the artistic ty “exists aesth- beauty schools lies in its students of existing conceptualized an article can be nothing in Mara There is qualities.” etic function.” their utilitarian independently of would remove that physically that we could ex- majority further at 931. The Opinion teaching utility Mara’s part not be if this is way to determine plains that the torsos, human mannequins Like aid. design: process look to the the case is to Economy Inc. v. Cover Barnhart choices were “artistic” (2d Cir.1985), independent 411, 418-19 Corp., 773 F.2d creation, sculpture’s made physi- faces are not mannequins of human *20 by were not later sullied the influ- were to “process” choices look at the that led to design, ence of industrial then some of the Mara, the creation of it is undeniable conceptually article separable useful from the beginning, Pivot Point intended therefore sculpture copyrightable, purpose Mara to serve a functional Opinion at 931-32. commissioned her creation fulfill that (not purpose to create a work of art for

Problematically, majority’s test for beauty). aesthetic conceptual separability seems to bear little the statute. resemblance to The statute majority, as evidenced its em- Does the useful article questions: asks two phasis on the fact that Charlene Products “sculptural incorporate features that can apparently copied doll, Mara with its separately from the be identified utilitari- “Liza,” unduly seems concerned this of the article? And are aspects” these context questionable with Charlene’s busi- existing “capable independent- features practices. ness This is immaterial to the ly” aspects? from the utilitarian determination of whether the Mara doll is copyright statute is concerned pro- protected by copyright law. Importantly, only tecting non-utilitarian features of the possible other legal protections for Pivot To copyrightable, useful article. Point’s intellectual property design pat- requires statute the useful article’s — ent, trademark, dress, trade and state un- functionality remain intact once the copy- fair competition law—are available ad- rightable separated. material is In other majority’s dress the Copyright concerns. words, Pivot Point needs to show that does not protect functional products. “aspect” Mara’s face is not utilitarian free, Charlene is under “Mara,” its own brand product separate but rather a name, copy copies and sell of useful majority, by non-utilitarian “feature.” The articles that do not patent protection. have looking to whether the features could See, e.g., Devices, conceptualized also as existing “be inde- Inc. v. Market- TrafFix Inc., pendently ing Displays, 23, of their utilitarian U.S. S.Ct. function” ignoring important 1255, the more question (2001); 149 L.Ed.2d 164 Bonito Boats, of whether the features Boats, Inc., themselves are Inc. v. Thunder Craft aspects article, of the useful 141, 971, 489 U.S. 109 S.Ct. 103 L.Ed.2d mistakenly presupposes that utilitarian as- (1989); Sears, Roebuck & Co. v. Stiffel pects of a copyright- useful article can be Co., 376 U.S. 84 S.Ct. 11 L.Ed.2d away ed. If we took Mara’s facial fea- (1964). I fear that majority’s opin- tures, functionality her greatly would be grants ion copyright protection to function- eliminated, diminished or thus proving al would, of a useful I article. that her features cannot be copyrighted. therefore, affirm the grant district court’s summary

Moreover, judgment in favor of Charlene “process-oriented ap- proach,” Products and Mr. Yau. majority advocated drifts away even further Opin- the statute.

ion at 930. The statute looks to the useful exists,

article as it not to how it was creat-

ed. I simply believe it is irrelevant

inquire into origins eyes, of Mara’s

cheekbones, and If neck. such features fully

have been incorporated as functional

aspects of mannequin, then

does not provide protection. Even we