Copyright protects creative expression such as music, books, and computer software. But copyright doesn’t protect everything that’s creative. For example, copyright doesn’t protect short phrases, mere ideas (that’s the job of patents), and “useful articles” (such as automobiles and appliances) no matter how elegant their design may be (with only a couple of exceptions mentioned below). The Copyright Office says:
A “useful article” is an object that has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. Examples are clothing; automobile bodies; furniture; machinery, including household appliances; dinnerware; and lighting fixtures. An article that is part of a useful article, such as an ornamental wheel cover on a vehicle, can itself be a useful article.
Is furniture ever protected under copyright despite what the copyright Office says? Some furniture is the work of remarkable creativity, such as the chairs of the Charles and Ray Eames, the Saarinen tables, the Frank Gehry Hat Trick chair and many others. But, a new case reinforces the longstanding principle that the journey to copyright protection for furniture is very challenging indeed.
Heptagon Creations sued Core Group Marketing in federal court claiming that unauthorized inclusion of images of furniture appearing on the House and Garden Television program Selling New York infringed Heptagon Creations’ copyrights in real furniture.
This month the Second Circuit Court of Appeals affirmed what the federal district said: no, furniture isn’t protected under copyright. (The plaintiff raised other claims in trademark and trades dress that were separately rejected by the courts.)
Sometimes a work that has a separable creative element from the functional aspects of a useful article can be protected (for example, a sculpture of Lindsay Lohan on a lamp). The sculpture would be protected by copyright; the lamp (as a useful article) would not. It’s not the societal or the esthetic value of the work that is being judged here – it’s that functional, utilitarian objects are outside the scope of copyright. Otherwise copyright could be used to block competitors from selling utilitarian objects. In a sense it’s the frivolous, entertaining – even functionally useless aspects — that are protected. Of course art can have infinite value. It just can’t light a dark hallway like a lamp, except in a spiritual, inspired kind of way.
I’ll mention that there is another exception to the rule that useful articles aren’t protected, which is if there is “conceptual separability” between the purely creative, artistic aspects and the functional ones, copyright protection can be found. A case in which a highly creative belt-buckle design was copyrightable is widely cited. (The inclusion of that belt buckle in the collection of the Museum of Modern Art might have been persuasive in finding copyright protection.) But, this particular exception is rarely applied.
The Second Circuit wrote, “Though aesthetic considerations likely influenced the choice of wood in the Cocoon Chair, that choice was also dictated by the functional concern that a person sitting in the chair have a surface on which to rest his arms.” Further, the court quoted the original complaint alleging that “[t]he armrests are supported by the arcuate sculptural form which forms both of them”).
The court went further and said, “The design elements that the complaint identifies in the lamps, including the texture of the lamp shades, are not akin to “fanciful designs” imprinted on a lamp base, which might be copyrightable, but rather are related to “the lamp[s’] utilitarian function as [devices] used to combat darkness.”
The court does not address the possibility, ironically, that virtual furniture in a video game and other pictorial creations of imaginary furniture might conceivably be protectable from copying in the form of real furniture because they are artwork. For now, like fashion designers (for whom there is no real US copyright protection), creative furniture designers will have to rely on quality, branding, panache, and price rather than copyright protection to thrive in the marketplace and sell from the showroom floor.
In February 2015, our colleague and friend, partner Mark Fischer, passed away. We have made his blog posts available in honor of both his nuanced and wide-ranging knowledge of intellectual property, new media and entertainment law and of his entertaining style. Please read our tribute to Mark in the firm’s Alumni Spotlight publication and his obituary in the Boston Globe.