Stealing Beauty: Pivot Point International v ... - UW Law School

NOTE
STEALING BEAUTY: PIVOT POINT INTERNATIONAL V.
CHARLENE PRODUCTS AND THE UNFOUGHT BATTLE
BETWEEN THE MERGER DOCTRINE AND
CONCEPTUAL SEPARABILITY
JACOB BISHOP*
INTRODUCTION
It is no secret that American culture is obsessed with beauty.
Newsstand magazines and supermarket tabloids tout images of attractive
models and celebrities whose identities may appear interchangeable to
the untrained eye. Ostensibly, in attempts to emulate these
representations, 1 women and men 2 alike spend a considerable amount of
money and energy on beauty products and regimes. 3 At the same time,
social critics often chastise the media for promulgating an unfair standard
of beauty, claiming that the models possess an “unattainable” level of
physical attractiveness. 4 While some herald these media representations
* J.D., University of Wisconsin Law School, 2006; B.A., University of
Illinois at Urbana-Champaign, 2002. I would like to thank everyone who directly and
indirectly contributed to the publication of this Note, particularly Kristy K. Wilson, Pedro
P. Warff, Eileen P. G’Sell, Terrell Scott Herring, Christine Muckle, Jacob Thride, Susan
Strzelec, Jodi and Robert Bishop, the editors of Wisconsin Law Review, and everyone
who laughed (however weakly) when I told them they should read my Article because “it
cites to Cosmo.”
1. See, e.g., Andrea Gordon, Ugly Truth About Beauty, TORONTO STAR, Sept.
18, 2004, at L1 (stating that media manipulation is at least partially responsible for
teenage girls’ obsession with body image and personal style).
2. While it does seem true that women are held to more stringent beauty
standards than men, it is neither fair nor accurate to imply that the images of perfection
presented by the media only apply to women. For an in-depth analysis of the relationship
between male identity and body image, see HARRISON G. POPE, JR., ET AL., THE ADONIS
COMPLEX: THE SECRET CRISIS OF MALE BODY OBSESSION (2000).
3. See, e.g., Jackie White, Fashion Makes a Return to the ‘Flashdance’
Decade, AUGUSTA CHRONICLE (Ga.), Apr. 11, 2004, at G03 (“In 2002, American
consumers spent $85 billion on drug and beauty products, the Bureau of Labor Statistics
reports, up 60 percent since 1990.”).
4. See generally NANCY C. BAKER, THE BEAUTY TRAP: EXPLORING WOMAN’S
GREATEST OBSESSION (1984) (asserting that women should jettison the media’s
representations of what is beautiful for their own, self-created notions of beauty); ROBIN
TOLMACH LAKOFF & RAQUEL L. SCHERR, FACE VALUE: THE POLITICS OF BEAUTY 113
(1984) (“The camera, then, has done more than screen reality for us; it has created a new

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as “classic beauties,” 5 others blame these representations for everything
from low-carb diets 6 to eating disorders. 7 Regardless of how people
align themselves in this debate, one thing is certain: everyone seems to
recognize that the media has created a standard of beauty that we, as a
society, simultaneously covet and abhor.
This dominant standard of beauty can be seen in the relatively
uniform designs of commercial mannequins. Since their widespread
introduction into the commercial sphere, mannequins have largely been
designed pursuant to the media’s representations of what is beautiful. 8
Some consumers have responded negatively to designers’ attempts to
emulate these media representations of beauty in their designs. 9
Ostensibly in response to such criticism, several designers have
reality, and with it a new aesthetic that has spilled over to the way we see female
beauty.”).
5. Perhaps in attempts to justify our culture’s obsession with beauty by
suggesting that our standards of beauty have existed indefinitely, magazines as diverse as
Vogue and Essence have used the term “classic beauty” to describe their subjects in the
past year. See, e.g., Sally Singer, Model & Supermodel, VOGUE, Sept. 2004, at 746;
Mikki Taylor, Absolutely Fabulous!, ESSENCE, Apr. 2004, at 80, 80. Newspapers have
also gotten in on the fun. See, e.g., Nicole Piscopo, Is Julia Roberts Really a Pretty
Woman?, PALM BEACH POST, June 21, 1997, at 1D. While the term “classic beauty” is
somewhat of an abstraction, it is often credited to the ancient Greek appreciation of
symmetry, established proportion, and regular features. See, e.g., Editorial, No Need to
Break the Mirror, HARTFORD COURANT (Conn.), Apr. 16, 1994, at B10 (citing Helen of
Troy as a classic beauty); Diana Loercher, Feminine Beauty: Defining an Enigma,
CHRISTIAN SCI. MONITOR, Jan. 13, 1981, at 15.
6. See, e.g., Jennifer Davies, Low-Carb Feast; Consumers Beef Up Sales of
Diet-Friendly Products as They Turn Away from Bread, Pasta, and Juice, SAN DIEGO
UNION-TRIBUNE, May 2, 2004, at H1 (claiming that media representations of celebrities
succeeding on the Atkins diet are a primary reason why the diet is so successful).
7. See, e.g., Eating Disorders; Officials See More Eating Disorders in Men,
WOMEN’S HEALTH L. WKLY., Oct. 24, 2004, at 28 (“Nationally, health officials estimate 1
million men have eating disorders, a 30% increase since 1972. . . . [T]he increase of
eating disorders among men is caused by unrealistic images of the male body in the
media.”).
8. See, e.g., Rita La Perla, Front Row, N.Y. TIMES, Dec. 9, 2003, at B9 (stating
that mannequins of a given decade are representative of the reigning notions of beauty of
that decade).
9. See, e.g., Lisa Guenther, We Allow Brainwashing Regarding Body Image,
ARGUS LEADER (Sioux Falls, S.D.), Jan. 17, 2005, at 2D.
I went to the mall a couple weeks ago, and to my dismay, I noticed an array
of department store mannequins that had one similar trait—they were all
extremely and unrealistically thin. Even at Lane Bryant, a store that caters to
plus-size women, the mannequins were thin. I am tired of being compared to
impossible standards of beauty and thinness.
Id.; Patricia Corrigan, Women Beginning to Take a Larger View of Beauty, ST. LOUIS
POST-DISPATCH, Nov. 1, 1997, at 38 (“If shop mannequins were real women, they’d be
too thin to menstruate.”).

2006:1067 Stealing Beauty 1069
consciously rebelled against the media’s prototypes of beauty. 10 For
example, designer Ralph Pucci recently created a mannequin named
“Goddess” that boasts 35 ½ inch hips, while one of Pucci’s competitors
recently introduced a line of mannequins “with a rounder and lower
derriere than its usual size 4 models.” 11 While such lines of mannequins
seem to subvert the dominant standard of beauty in our society, the
designers responsible for their creation claim that their mannequins are
intended to represent what they perceive to be a change in society’s
definition of beauty. 12 Thus, even these “deviating” mannequins are
essentially the product of society’s changing ideals of what is beautiful.
Because mannequin designers rely so much upon pre-existing
notions of beauty, one may wonder the extent to which designers should
be allowed to copyright these “creations.” Federal copyright law
provides copyright protection for “original works of authorship fixed in
any tangible medium of expression.” 13 For a work to be classified as
original, however, the work only needs to be the result of an independent
creation paired with a minimal amount of creativity. 14 Generally, it
seems like mannequins could easily fit within this definition; as long as
the artist did not copy the idea from another artist and did put forth a
modicum of creativity, 15 the artist would be in the clear.
However, because these designs are based on pre-existing societal
standards of beauty, rather than the artist’s independent creative impulse,
this question becomes significantly more complicated. Case law
suggests that the public has an interest in denying businesses any
10. See generally Corrigan, supra note 9 (describing The Body Shop’s decision
to create Ruby, a full-figured fashion figurine designed to be the icon for the company’s
recent campaign on self-acceptance).
11. Mireya Navarro, Store Mannequins Can Now Breathe Out, N.Y. TIMES,
Nov. 14, 2004, § 9, at 1.
12. For example, Pucci believes that “this type of body [is] becoming more
relevant” to society’s perception of what is beautiful. Id. Pucci equates a fuller figure
with sexiness, and asserts that one “can’t flip through a magazine without seeing [this]
sexiness.” Id.
13. 17 U.S.C. § 102(a) (2000) (emphasis added).
14. Feist Publ’s, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).
The sine qua non of copyright is originality. To qualify for copyright
protection, a work must be original to the author. Original, as the term is
used in copyright, means 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.
Id.
15. Based on the holdings in cases like Feist, it seems inevitable that, unless a
sculpture was copied, it would meet the “modicum of creativity” standard necessary for
copyright protection.

1070 WISCONSIN LAW REVIEW
undeserving monopolies. 16 This interest is embedded within copyright
statutes, which clearly state that courts cannot extend copyright
protection to “any idea, procedure, process, system, method of operation,
concept, principle, or discovery, regardless of the form in which it is
described, explained, illustrated, or embodied.” 17 Courts have
consistently interpreted this language to mean that copyrights only
protect authors’ particularized expressions of ideas, instead of the ideas
themselves. 18
Indeed, “copyright law mandates that the underlying basis of all
creative expression”—the idea—“remain in the public domain.” 19 One
of the ways that courts safeguard the public’s ability to access ideas in
the public domain is through the merger doctrine. Courts have construed
the merger doctrine as follows:
The fundamental copyright principle that only the expression
of an idea and not the idea itself is protectable has produced a
corollary maxim that even expression is not protected in those
instances where there is only one or so few ways of expressing
an idea that protection of the expression would effectively
accord protection to the idea itself. 20
When courts implement the merger doctrine, they prevent a
legitimate expression of an idea from being copyrighted because any
other expression of that idea would necessarily be substantially similar.
For example, in Hart v. Dan Chase Taxidermy, the U.S. Court of
Appeals for the Second Circuit applied the merger doctrine to fish
mannequins, and stated that “the merger inquiry asks whether or not all
realistic fish mannequins, no matter how artistic they might be, will
necessarily be ‘substantially similar.’” 21 The court concluded that if the
mannequins were substantially similar, there is no unique expression to
protect under copyright law. 22 The policy behind the rule is that when an
idea and its expression are inseparable, protecting the expression in such
16. See, e.g., id. at 354.
17. 17 U.S.C. § 102(b) (2000).
18. See, e.g., Mattel, Inc. v. Goldberger Doll Mfg. Co., 365 F.3d 133, 135-36
(2d Cir. 2004); Wildlife Express Corp. v. Carol Wright Sales, 18 F.3d 502, 507 (7th Cir.
1994); Mattel, Inc. v. Azrak-Hamway Int’l, 724 F.2d 357, 360 (2d Cir. 1983); Nichols v.
Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930).
19. Marc J. Apfelbaum, Copyright and the Right of Publicity: Two Peas in One
Pod?, 71 GEO L.J. 1567, 1575 (1983).
20. Hart v. Dan Chase Taxidermy Supply Co., 86 F.3d 320, 322 (2d Cir. 1996)
(quoting Kregos v. Associated Press, 937 F.2d 700, 705 (2d Cir. 1991)).
21. Id. (emphasis omitted).
22. Id.

2006:1067 Stealing Beauty 1071
circumstances would confer a monopoly of the idea upon the copyright
owner. 23
Because mannequins are generally based upon current societal
notions of beauty, it seems necessary for courts to apply the merger
doctrine to copyright cases involving mannequins. So doing would
prevent designers from acquiring undue monopolies by merely exploiting
these notions of beauty first. However, in Pivot Point International v.
Charlene Products, the U.S. Court of Appeals for the Seventh Circuit
granted copyright protection to a line of mannequins that channeled the
chic look of runway models of the 1980s 24 without adequately
considering the merger doctrine. In its decision, the court primarily
relied on the doctrine of conceptual separability, which states that the
aesthetically pleasing elements of a utilitarian item are only
copyrightable to the extent that they do not serve a utilitarian function. 25
Essentially, the Seventh Circuit reasoned that, because Pivot Point’s
mannequin heads did not require their specific facial features to serve
their utilitarian function within the cosmetology industry, those features
were copyrightable. 26 The court further held that the specific
configuration of facial features on Pivot Point’s mannequin heads were
the result of an artist’s own independent artistic judgment, and were
copyrightable for that reason as well. 27
The court’s holding is somewhat ironic. In granting copyright
protection to the mannequin’s facial features, the Seventh Circuit
protected this particular plaintiff’s artistic design from a defendant who
had clearly stolen it. 28 The mannequin’s facial features, however, were
not based on the artist’s independent idea of what is beautiful, but rather
23. See, e.g., Veeck v. S. Bldg. Code Cong. Int’l, 241 F.3d 398, 408 (5th Cir.
2001); Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir. 1971).
24. 372 F.3d 913, 915, 931-32 (7th Cir. 2004).
25. See id. at 931. As explained later in this Note, if an aspect of a design has a
utilitarian function, then that aspect no longer falls under the Act’s definition of
“pictorial, graphic or sculptural work.” 17 U.S.C. § 101 (2000). This is one of eight
categories that Congress has determined fall within the scope of copyright protection.
See 17 U.S.C. § 102 (2000) (listing the eight categories of copyrightable items). Because
the other categories cover items such as written works, motion pictures, and
choreography, if a three-dimensional article does not fall into the “pictorial, graphic and
sculptural work” category, it probably will not qualify for copyright protection. The
process of determining whether an article has a utilitarian function is relatively
straightforward. Congress defined a “useful article” as an article that has an intrinsic
utilitarian function “that is not merely to portray the appearance of the article or convey
information.” 17 U.S.C. § 101 (2000) (emphasis added). It follows, then, that an article
that has any other type of intrinsic utilitarian function would be a useful article.
26. See 372 F.3d at 931.
27. Id. at 931-32.
28. See id. at 916.

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on a prevailing idea of beauty established in the 1980s. 29 Granting
copyright protection to the artist’s appropriation of this idea, then, allows
the plaintiff to own a standard of beauty that it had no hand in creating.
On the surface, the court only seems to be protecting artistic designs,
however, it is simultaneously stifling other legitimate designs, at least to
the extent that they are reliant on the same standard of beauty.
This Note argues that, while the Seventh Circuit aptly consolidated
several conflicting tests for determining conceptual separability, it has
failed to recognize the potential conflict between conceptual separability
and the merger doctrine, which may allow future mannequin designers to
copyright traditional standards of beauty that they had no role in creating.
Part I presents the facts and holding of Pivot Point. Part II then describes
the development of conceptual separability and argues that the Seventh
Circuit’s new test for determining whether conceptual separability exists
is both a good test and a considerable accomplishment given the relative
murkiness of the doctrine. Part III asserts that, despite the fact that the
artistic components of the mannequins at issue in Pivot Point were
conceptually separable from the mannequins’ functional purpose, the
merger doctrine should have prevented the mannequins from being
copyrighted because the underlying inspiration for the mannequins—the
look of 1980s runway models—is an idea that must necessarily be
expressed in substantially similar ways. 30 This Note concludes by
asserting that, although policy reasons make the decision in Pivot Point
reasonable, the final decision fails to reconcile these two important
copyright doctrines—to the detriment of future artists.
I. HUNGRY FOR THE LOOK:
THE FACTS AND HOLDING OF PIVOT POINT
Pivot Point was a company that developed and marketed
educational techniques and tools for the hair design industry. 31 In the
mid-1980s, it wanted to develop a mannequin that would emulate the
“hungry look” of high-fashion runway models of the time. 32 To achieve
29. See id. at 915.
30. Part III also addresses the Seventh Circuit’s application of Mattel v.
Goldberger to Pivot Point, which influenced the Seventh Circuit to bypass the merger
doctrine in its decision.
31. Pivot Point, 372 F.3d at 915.
32. Id. The court stated that the mannequin heads possess the “hungry look” of
runway models of the 1980s. Id. However, the court never elaborated upon what this
terminology actually means. For the purposes of this Note, it suffices to say that the
“hungry look” was a uniform standard of beauty found among runway models of the
1980s. More specifically, however, the term seems to reference a gaunt and emaciated

2006:1067 Stealing Beauty 1073
this goal, Pivot Point hired a German artist to create an original sculpture
of a female human head. 33 Although it discussed what it wanted with the
artist, Pivot Point did not give the artist any specific dimensional
requirements for the sculpture. 34 With this freedom, the artist designed a
plaster sculpture called “Mara.” 35
Pivot Point sent the Mara sculpture to its manufacturer in Hong
Kong, which created exact reproductions of the sculpture. 36 After it
received the reproductions, Pivot Point discovered that the mannequin’s
hairline had been etched too high on the forehead, and that it had been
covered with implanted hair, creating a sort of double hairline on the
original Mara sculptures. 37 Despite this mistake, Pivot Point obtained a
copyright registration for the design of Mara, specifically the bareheaded
female human head with no makeup or hair. 38 The company enjoyed
great success with the copyrighted Mara, and developed a variety of
mannequins with different skin tones and makeup, without altering the
mannequin’s facial features. 39
At a trade show in 1989, however, the defendant Charlene Products,
a competing mannequin manufacturer, presented its own mannequin
named “Liza,” which was strikingly similar in design to Mara. 40 In
addition to the similar facial features, Liza also exhibited the same
double hairline that the early versions of Mara possessed. 41 Pivot Point
served notice upon Charlene for copyright infringement on September
24, 1989, and filed suit when Charlene refused to stop selling Liza. 42
look that is considered vintage in the modeling industry. See Chris Bynum, Role Models:
Muscular . . . Mature . . . Thin . . . Young? Those Who Show Each Season’s New
Fashions Influence American Women’s Perceptions of Themselves, TIMES-PICAYUNE
(New Orleans), May 12, 1993, at E1 (explaining that the healthy look of models like Elle
MacPherson and Cindy Crawford is gradually being replaced by the “hungry look”
possessed by older models like Twiggy, one of the world’s first supermodels).
33. Pivot Point, 372 F.3d at 915.
34. Id. This is relevant because it shows that the artist’s representations were
not based on utilitarian concerns, but were completely implemented for their artistic
value. See id. at 931-32. The defendant explained away this showing, however. See
infra note 54 and accompanying text.
35. Pivot Point, 372 F.3d at 915.
36. Id.
37. Id. The entire first shipment of reproductions contained this flaw. Id.
38. Id. In other words, the plaintiff only copyrighted Mara’s facial shape and
features.
39. Id. at 915-16.
40. Id. at 916.
41. Id. This is particularly illustrative that the defendant copied the plaintiff’s
design, as is the fact that the defendant’s founder, Mr. Yau, worked for the plaintiff
before starting Charlene Products. Id. at 916 n.2.
42. Id. at 916.

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The district court found that Mara was not copyrightable. 43 In its
estimation, the “principal dispute [was] whether a human mannequin
head is copyrightable subject matter.” 44 After a close reading of 17
U.S.C. § 101’s definition of “pictorial, graphic and sculptural works,” the
district court concluded that Mara could not be a protected sculptural
work because she served utilitarian ends, because “[s]tudents in beauty
schools practice styling hair on Mara’s head and may practice other skills
by applying makeup to Mara’s eyes, lips, and cheeks.” 45 The district
court then implemented a prevailing test for conceptual separability
developed by Professor Paul Goldstein, which states that an artistic
feature is “conceptually separable if it can stand on its own as a work of
art traditionally conceived, and if the useful article in which it is
embodied would be equally useful without it.” 46 Applying this test to
Mara, the court held that, because Mara would not be equally useful if its
facial features were removed, 47 the artistic features were not
conceptually separable, and therefore, Mara could not be copyrighted. 48
The Seventh Circuit began its review of Pivot Point by questioning
whether or not Mara was a useful article. 49 After presenting the
definition of a useful article, the court considered the opposing
arguments of both Pivot Point and Charlene. 50 Pivot Point argued that
Mara’s “inherent nature [was] to portray the appearance of runway
models,” and therefore, its “intrinsic utilitarian function” was solely to
portray the appearance of an article, which takes it outside the scope of
43. Id. at 917.
44. Id. at 916.
45. Id.
46. Id. at 917 (quoting 1 PAUL GOLDSTEIN, COPYRIGHT: PRINCIPLES, LAW &
PRACTICE § 2.5.3 (1989)).
47. See id. In this determination, the court held that as long as makeup tutoring
and practice was a potential use of Mara, it did not matter whether or not the use was the
primary one, or even an intended use. Id. This holding goes against the official holding
of Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989, 993-94 (2d Cir. 1980).
See infra notes 101-106 and accompanying text.
48. Pivot Point, 372 F.3d at 917. In its decision, the court distinguished two
cases that extended copyrightability to animal mannequins. Id. (citing Hart v. Dan Chase
Taxidermy Supply Co., 86 F.3d 320 (2d Cir. 1996) (holding that fish mannequins are
copyrightable) and Superior Form Builders, Inc. v. Dan Chase Taxidermy Supply Co., 74
F.3d 488 (4th Cir. 1996) (holding that animal mannequins may be copyrightable despite
the fact that they are used to display animal skins and faux furs)). The district court
found these cases distinguishable because the animal mannequins were valued for their
appearances whereas Mara was valued for what it “enable[d] students to do and learn.”
Pivot Point, 372 F.3d at 917.
49. 372 F.3d at 919.
50. Id. at 919-20.

2006:1067 Stealing Beauty 1075
the statute’s definition of a useful article. 51 Charlene argued that Mara
served another useful purpose: to train cosmetology students how to
apply makeup. 52 The Seventh Circuit upheld the district court’s
conclusion that Mara was a useful article. 53
The court found it more difficult, however, to determine whether
Mara’s artistic elements were separable from her utilitarian function. In
its discussion, the Seventh Circuit analyzed the various tests for
determining conceptual separability. 54 Instead of adopting the tests
proposed by either the plaintiff or the defendant, 55 the court synthesized
two preexisting tests for determining conceptual separability. 56 The
court looked first at the Barnhart test, which provides that a design
element is conceptually separable from the item’s utilitarian function if it
can exist independently of the item’s overall utilitarian function. 57 The
second test, the Brandir test, states that the same design element is
conceptually separable to the extent that it reflects the artist’s own
expression uninhibited by functional concerns. 58
51. Id. at 919. A “useful article” is an article that has an intrinsic utilitarian
function that is not merely to portray the appearance of itself or to convey information.
17 U.S.C. § 101 (2000).
52. 372 F.3d at 920.
53. Id.
54. Id. at 921-30.
55. The plaintiff argued that the central inquiry for determining conceptual
separability is whether the article can be considered a work of art, which the plaintiff
claimed satisfied “most, if not all, of the current definitions of conceptual separability.”
Id. at 923. On the other hand, the defense again proposed implementation of the
Goldstein test, which determines whether the useful article would be equally useful
without the artistic features. Id. at 923-24. The court refused to apply either test,
although it deemed both approaches “thoughtful.” Id. at 924.
56. Id. at 931.
57. Id. (citing Carol Barnhart, Inc. v. Econ. Cover Corp., 773 F.2d 411, 418 (2d
Cir. 1985)).
58. Id. at 931 (citing Brandir Int’l v. Cascade Pac. Co., 834 F.2d 1142, 1145 (2d
Cir. 1987)). The Brandir court adopted a test created by Professor Robert Denicola. Id.
Denicola’s test applies to both works of applied art and works of industrial design. See
Robert C. Denicola, Applied Art and Industrial Design: A Suggested Approach to
Copyright in Useful Articles, 67 MINN. L. REV. 707, 708-709 (1983). His test directly
responds to Congress’ decision to protect works of applied art but not industrial design.
Id. at 708. Congress seemed to believe that, if industrial designs were copyrightable,
designers would have an unfair monopoly in designs for items that practically only had
one design. Id. at 741-42. Denicola disagrees with this argument because it
oversimplifies the process of industrial design:
In an effort to avoid monopolization of functional attributes, the law has long
denied protection in instances in which utilitarian requirements dictated a
particular form. The relationship between form and function, however, is
seldom so direct. Typically, a variety of forms will be compatible with
functional objectives. The choice is thus constrained rather than dictated.

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The court clearly outlined its rationale for combining these two
tests. It stated that the Barnhart test “moved closer to a process-oriented
approach” by focusing on what factors—utilitarian or artistic—drove the
creator to implement the aesthetic features. 59 It also noted that the
Brandir approach, spawned from a case involving the specific
dimensions and shapes of a mannequin torso, further articulated this
concept by acknowledging that “though the torsos bore artistic features,
it was evident the designer incorporated those features to further the
usefulness of the torsos as mannequins,” rather than to further the
designer’s own artistic vision. 60 Although the court quoted language
from the test set forth in Barnhart, 61 the test is actually a hybrid between
Barnhart and Brandir. 62
Applying its new test to Mara, the Seventh Circuit found that Mara
was indeed copyrightable. 63 The court found that Mara’s facial features
could be conceptualized independent from her use in hair display or
makeup training because they were the result of an artist’s independent
aesthetic judgment. 64 The court’s rationale for this decision was based
on the fact that Pivot Point did not prescribe any specific dimensions or
measurements to which the artist had to adhere, so the artist had “carte
blanche to implement [Pivot Point’s] vision as he saw fit.” 65 Further, the
court argued that Mara’s facial features were “meant to be seen and
admired,” and therefore were distinguishable from the mannequin torsos
in Barnhart, which “were little more than glorified coat-racks used to
display clothing in stores.” 66 For these reasons, the court contended that
Mara met the requirements of conceptual separability. 67
In its determination that Mara’s facial features were copyrightable,
the Seventh Circuit also relied on Mattel, Inc. v. Goldberger Doll
Manufacturing Co. 68 In Goldberger, the Second Circuit rejected the idea
Id. (footnotes omitted).
59. Pivot Point, 372 F.3d at 930.
60. Id. at 931 (quoting Brandir, 834 F.2d at 1145).
61. Id.
62. This is demonstrated by the court’s assertion that the independence of
artistic aspects and utilitarian function “is necessarily informed by whether the ‘design
elements can be identified as reflecting the designer’s artistic judgments exercised
independently of functional influences.’” Id. (quoting Brandir, 834 F.3d at 1145).
63. Id.
64. Id.
65. Id. at 932.
66. Id. (quoting Hart v. Dan Chase Taxidermy Supply Co., 86 F.3d 320, 323
(2d Cir. 1996)).
67. Id.
68. See id. at 929 (citing Mattel, Inc. v. Goldberger Doll Mfg. Co., 365 F.3d
133 (2d Cir. 2004)).

2006:1067 Stealing Beauty 1077
that a particular expression of features on a doll’s face was not subject to
copyright protection. 69 In its holding, the Goldberger court claimed that
for a work to be copyrighted, it only has to have been “independently
created” by the author and possess “some minimal degree of
creativity.” 70 The court claimed that there are “innumerable ways of
making upturned noses, bow lips, and widely spaced eyes,” all of which
could be protected because each would be a particularized expression of
the same idea, not a copy of the idea itself. 71 The Seventh Circuit
applied the Goldberger case to Pivot Point, stating that Mara was merely
the artist’s particularized expression of the “hungry look” of runway
models, and was therefore copyrightable. 72
II. THE CLARIFICATION OF CONCEPTUAL SEPARABILITY
Because of the Seventh Circuit’s decision in Pivot Point, it is
significantly easier to determine whether an aesthetic element of a useful
article is copyrightable or not. This section will describe the doctrine of
conceptual separability in more depth and present several different
proposed tests for conceptual separability, from both the Second Circuit
and various legal thinkers. This section will then analyze the Seventh
Circuit’s choice in combining the Brandir and Barnhart tests, and
conclude that its synthesis of the tests adequately considers all of the
rationales behind these competing tests while providing future courts
with a workable test for determining whether conceptual separability
exists.
The doctrine of conceptual separability limits the copyrightability of
useful items. 73 Generally, copyright protection is available to “original
works of authorship fixed in any tangible medium of expression,”
including “pictorial, graphic, and sculptural works.” 74 It is possible,
however, for primarily useful articles to also have aesthetic elements that
would otherwise place the entire item within this protected category. 75
The doctrine of separability ensures that useful items 76 are only included
69. Id. (discussing Goldberger, 365 F.3d 133).
70. Id.
71. Id.
72. Id. at 931.
73. See, e.g., id. at 931.
74. 17 U.S.C. § 102(a) (2000).
75. See Pivot Point, 372 F.3d at 931.
76. “Useful article” is defined as “an article having an intrinsic utilitarian
function that is not merely to portray the appearance of the article or to convey
information.” 17 U.S.C. § 101 (2000). For a judicial interpretation of this definition, see
Langman Fabrics v. Graff Californiawear, 160 F.3d 106, 114 (2d Cir. 1998) (stating that,

1078 WISCONSIN LAW REVIEW
in this category to the extent that their pictorial, graphic, or sculptural
features can be identified separately from, and are capable of existing
independently of, their utilitarian functions. 77 The fundamental purpose
of the doctrine is to prohibit people from seeking copyright protection for
products that Congress intended to be protected by patents or
trademarks. 78
Essentially, the aesthetic elements of a useful article can be
physically or conceptually separable. 79 Physical separability requires
that the aesthetic function or aspects of an article be literally separable
from the utilitarian aspects of the work. For example, the artistic
statuette on the hood of a Jaguar is physically separable from the
utilitarian function of the car itself. Conceptual separability, on the other
hand, only requires that the aesthetic elements be theoretically separable
from the useful item. The painted design on a vase, for example, would
be conceptually separable from the vase itself because its artistic value is
conceptually distinct from the useful aspects of the vase. Unlike physical
separability, which is fairly obvious, courts have historically found it
difficult to determine whether conceptual separability exists (despite how
straightforward the doctrine may seem). 80
while fabric that was made merely to display a design would not be a useful article, the
same fabric would be a useful article if it was intended to serve as a dress or a couch
cover).
77. See 17 U.S.C. § 102(b) (2000).
78. See Raymond Polakovic, Should the Bauhaus Be in the Copyright
Doghouse?: Rethinking Conceptual Separability, 64 U. COLO. L. REV. 871, 873 (1993)
(“The . . . distinction between an ordinary sculptural work and a useful article is intended
to foreclose protection of sculptural works designed for a non-artistic application, which
is more appropriately within the province of patent protection.”); see also ADA v. Delta
Dental Plans Ass’n, 126 F.3d 977, 980 (7th Cir. 1997) (“Congress . . . does not extend the
copyright to [useful articles], which in the main fall[] into the province of patent,
trademark, or trade dress law.”). Indeed, because copyright protection generally provides
a longer duration of protection than patents—up to 90 years after the death of an author,
as opposed to 14 years of protection from a design patent—people and companies often
prefer copyright protection to patent protection, and will subsequently attempt to fit
products with primarily utilitarian functions within the constraints of 17 U.S.C. § 101.
See TRADEMARK PROTECTION AND PRACTICE § 2.14(2) (2004); see also Mark I. Koffsky,
Patent Preemption of Computer Software Contracts Restricting Reverse Engineering:
The Last Stand?, 95 COLUM. L. REV. 1160, 1164 (1995) (“Copyright is generally
preferable to patent protection because the vendor need not reveal the contents of the
software to the public. In addition, copyright protection is much quicker and cheaper to
obtain, and exists for a significantly longer period than a patent’s lifetime.”).
79. See H.R. REP. NO. 94-1476, at 54 (1976), reprinted in 1976, U.S.C.C.A.N
5659-5801 (stating that separability can be determined either physically or conceptually).
80. See, e.g., Pivot Point, 372 F.3d at 922-23 (“The difficulty lies not in the
acceptance of [the statutory language], but in its application.”).

2006:1067 Stealing Beauty 1079
Although it dealt primarily with physical separability, Mazer v.
Stein laid the groundwork for the doctrine of conceptual separability. 81
The plaintiff in that case manufactured statues emulating the human
form, and copyrighted them as works of art. 82 After it received the
copyright, the plaintiff then used the statues as bases for lamps. 83 The
defendant lamp manufacturer then copied the lamp bases and sold the
copies. 84 The defendant argued that the lamps were not copyrightable
because they were a useful item, and patents, not copyrights, should
protect useful items. 85 The court disagreed with the defendant’s
arguments, and granted copyright protection to the statues because the
lamp did not require a base shaped like a human being to serve its
function as a lamp. 86
Ultimately, Mazer v. Stein was a very narrow holding; while it held
that commercially designed items were not automatically ineligible for
81. 347 U.S. 201 (1954). Mazer was decided in 1954. Id. In 1959, Congress
enacted a regulation that provided:
If the sole intrinsic function of an article is its utility, the fact that the article
is unique and attractively shaped will not qualify it as a work of art.
However, if the shape of a utilitarian article incorporates features, such as
artistic sculpture, carving, or pictorial representation, which can be identified
separately and are capable of existing independently as a work of art, such
features will be eligible for registration.
37 C.F.R. § 202.10(c) (1959) (repealed 1978). For all intents and purposes, Mazer was
the congressional impetus for this regulation. See Denicola, supra note 58, at 715
(“Determined to close the door that Mazer left ajar, the Copyright Office sought a
formulation that would accommodate Mazer, yet exclude the general realm of industrial
design. After one aborted attempt, it settled on the ‘separability’ standard that has come
to dominate current analysis . . . .”). The current codification of conceptual separability,
however, is the result of the 1976 Copyright Act. See Polakovic, supra note 78, at 872-
73. Interestingly, while the Act significantly changed the landscape of copyright law in
the United States, the new statutes do not include the term “conceptual separability.” As
Polakovic suggests, however, the notion does appear in the House Report addressing their
revisions. See H.R. REP. NO. 94-1476, at 55, reprinted in 1976 U.S.C.C.A.N. 5668, 5670
(“Unless the shape of an . . . industrial product contains some element that, physically or
conceptually, can be identified as separable from the utilitarian aspects of that article, the
design would not be copyrighted under the bill.”).
82. Mazer, 347 U.S. at 202-03.
83. Id. at 202.
84. Id. at 203.
85. See id. at 215. At the time the case was tried, patent law required a design
to be new or novel to qualify for patent protection. Id. at 216. The defendant argued that
if the lamps were protected by patents, then the plaintiff would have to establish this
novelty—otherwise, the defendant could copy the design. Id. This differs from
copyright protection, which, unlike patent protection, protects the creator’s specific
expression of an idea, not the idea itself. See supra note 17 and accompanying text.
86. See id. at 218.

1080 WISCONSIN LAW REVIEW
copyright protection, 87 it made no efforts to describe what the
qualifications for copyright eligibility were. 88 In response to this
ambiguity, Congress passed copyright regulations requiring that artistic
elements of an item be separable from its utilitarian aspects to receive
copyright protection. 89 Under these regulations, if the sole function of an
item was its utility, then it could not be copyrighted. 90 However, if the
shape of a utilitarian article incorporated features such as artistic
sculpture, carving, or pictorial representation, which could be identified
separately and were capable of existing independently as a work of art,
such features would classify the object as a “work of art,” a category
eligible for copyright protection. 91 This legislation attempted to
accommodate the general rule presented by Mazer while excluding the
realm of industrial design (which is arguably protected better by
patents). 92
These regulations, however, were very difficult to apply for two
reasons. First of all, it was unclear whether Congress intended the
regulations to require physical separability or merely conceptual
separability. 93 More importantly, courts had a difficult time determining
whether an item’s sole function was utilitarian. 94 Because of these
87. See id. (“We find nothing in the copyright statute to support the argument
that the intended use or use in industry of an article eligible for copyright bars or
invalidates its registration. We do not read such a limitation into the copyright law.”).
88. See Denicola, supra note 58, at 713. Denicola aptly describes the
incompleteness of the Mazer decision:
Mazer answered one question, yet wisely eschewed another. The use to
which “works of art” are put is irrelevant, the Court declared, but the bounds
of that statutory classification remained uncertain. A dancing figure
qualified, but the Court had said nothing of the forms displayed by toasters or
automobiles, or the designs of wedding gowns or belt buckles.
Id. at 712.
89. See Polakovic, supra note 78, at 874.
90. 37 C.F.R. § 202.10(c) (1959) (repealed 1978).
91. Id.
92. See Denicola, supra note 58, at 715. Opponents of granting copyright
protection to industrial design claim that, because industrial designs are motivated
primarily by functional concerns and efficiency, it is more likely that there are fewer
practical ways to design an item. See id. at 723-26. As a result, copyright holders would
have unfair monopolies if their industrial designs were copyrightable. Id.
93. See, e.g., Esquire, Inc. v. Ringer, 591 F.2d 796 (D.C. Cir. 1978) (denying
copyright protection under the former legislation to lighting fixtures, even though their
design was conceptually separable from the fixture’s function).
94. See, e.g., Fabrica, Inc. v. El Dorado Corp., 697 F.2d 890, 893 (9th Cir.
1983). The sole function clause was highly problematic. Since the regulations did not
consider whether an artistic aspect of a useful article could exist independently of the
larger item, a wholly utilitarian item with artistic attributes capable of existing
independently of the item could not be copyrighted, whereas an item with only a partially

2006:1067 Stealing Beauty 1081
difficulties, Congress codified the current doctrine of conceptual
separability in 1976, 95 which provides protection for both physically and
conceptually separable components, 96 and no longer requires that an item
be solely utilitarian to be protected. 97
Despite this clarification, courts have struggled in developing a
uniform test for determining whether the aesthetic parts of an item are
separable from the utilitarian parts. Generally, courts have been willing
to extend copyright protection to works of applied art, 98 which
incorporate the independent artistic vision of the designer, but have often
refused to extend copyright protection to works of industrial design,
utilitarian function could be copyrighted despite the fact that the artistic attributes of the
item could not be separated from the item as a whole. Id. Case law is filled with cases
just like this. For example, in Royalty Designs, Inc. v. Thrifticheck Service Corp., the
plaintiff held copyrights for children’s coin banks molded in the shape of dogs. 204 F.
Supp. 702, 703 (S.D.N.Y. 1962). The court upheld the copyright issued to the plaintiff
because the coin banks were simultaneously useful articles and works of art, and thus not
solely utilitarian in their function. See id. at 704; see also Goldman-Morgen, Inc. v. Dan
Brechner & Co., 411 F. Supp. 382, 388 (S.D.N.Y. 1976) (holding that the plug on a
novelty coin bank was copyrightable despite the plug’s utilitarian use). Thus, while the
doctrine was readily applicable to situations like Mazer, where there is no ambiguity
concerning the purpose of an item, courts have faltered when they could not immediately
determine whether or not the item’s function was solely utilitarian.
95. See 17 U.S.C. § 101 (2000).
96. Although the statute codifies what is known as the doctrine of conceptual
separability, it incorporates physical separability as well, if only because physical
separability is so much easier to determine than conceptual separability. See Polakovic,
supra note 78, at 874 (“In instances when one can actually remove—or, in the vernacular
of copyright analysis, physically separate—an artistic element from a useful article
without also removing the article’s intrinsic utilitarian function, this is a relatively simple
process.”). If the attributes are physically separable, a court does not need to determine
whether the attributes are also conceptually separable. Id. Understandably, then,
physical separability cases are therefore much easier resolved than conceptual
separability cases.
97. Fabrica, 697 F.2d at 893.
98. What constitutes applied art can be a tricky question. There is no dispute
that any item of fine art (paintings, sculptures, etc.) counts as applied art. However,
courts are usually reluctant to put themselves in the position of art connoisseurs. See,
e.g., Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903) (“It would be a
dangerous undertaking for persons trained only in the law to constitute themselves final
judges of the worth of pictorial illustrations . . . .”); Martin v. City of Indianapolis, 192
F.3d 608, 610 (7th Cir. 1999) (“We are not art critics, [and we] do not pretend to
be . . . .”). In spite of this fact (or perhaps because of it), courts have since categorized a
wide array of objects as art. See, e.g., Masquerade Novelty v. Unique Indus., 912 F.2d
663 (3rd Cir. 1990) (classifying animal nose masks as works of art); Celebration Int’l v.
Chosun Int’l, 234 F. Supp. 2d 905 (S.D. Ind. 2002) (classifying the mask of a tiger
costume as a work of art).

1082 WISCONSIN LAW REVIEW
whose artistic functions are often the result of utilitarian concerns. 99 As
a result, courts have established several different tests to determine
whether conceptual separability exists.
The Second Circuit created its first test for determining conceptual
separability in Kieselstein-Cord v. Accessories by Pearl, Inc. 100 The
plaintiff in the case was a manufacturer of fashion accessories who had
developed two original belt buckle designs. 101 The defendant produced
and marketed belt buckles that were similar in design (although made of
different metals), 102 and argued that the plaintiff’s buckles were not
copyrightable because they were useful articles with no sculptural
features that were separable from the utilitarian aspects of the buckle. 103
The Second Circuit found that the buckles were copyrightable because
“[t]he primary ornamental aspect of the . . . buckles is conceptually
separable from their subsidiary utilitarian function.” 104 The case
99. In Esquire, Inc. v. Ringer, a designer of lighting fixtures attempted to
copyright one of his designs by classifying it as a work of art. 591 F.2d 796, 798 (D.C.
Cir. 1978). The copyright office refused to issue such a copyright. Id. at 798. The
designer argued that the fixture was copyrightable because it served both utilitarian
purposes and artistic purposes. See id. at 800. After accusing the office of being biased
against “modern abstract sculpture” in its considerations of what is art, the designer
proposed that the overall shape of a utilitarian article be copyrightable as a work of art if
it is original and creative, and it exhibits a “sufficient quantity of intellectual labor” to
distinguish it from everyday designs. Id. at 805. The court declined to apply this test.
Id. Despite the holding in Esquire, courts have become less willing to categorically reject
works of industrial design for copyright protection. See, e.g., Carol Barnhart, Inc. v.
Econ. Cover Corp., 773 F.2d 411, 418 (2d Cir. 1985) (“Congress has explicitly refused
copyright protection for works of applied art or industrial design which have aesthetic or
artistic features that cannot be identified separately from the useful article.” (emphasis
added)). Even so, obtaining copyrights for works of industrial design is generally more
difficult. For a description of the difficulties in obtaining copyrights for works of
industrial design, and arguments for creating a federal statute specifically protecting
industrial designs, see Ralph S. Brown, Design Protection: An Overview, 34 UCLA L.
REV. 1341 (1987).
100. 632 F.2d 989 (2d Cir. 1980).
101. Id. at 990. The two designs, named “Vaquero” and “Winchester,” were
made of precious metals such as gold and silver, and though difficult to describe, were
based on the plaintiff’s unique take on Spanish architecture (“Vaquero”) and the butt of
an antique Winchester rifle (“Winchester”). Id. at 990-91.
102. Id. at 991.
103. Id. at 991-92. The defendant did not assert that the plaintiff’s belt buckles
lacked creativity or originality. Id. at 991.
104. Id. at 993-94. The court acknowledged that no precedent provided any
“ready answer to the line-drawing problem inherent in delineating the extent of copyright
protection available for works of applied art.” Id. at 992-93. The court justified its newly
constructed test by stating that it was not at variance with the legislative intent to
distinguish copyrightable applied art and industrial design, which is not copyrightable.
Id. at 993.

2006:1067 Stealing Beauty 1083
ultimately stands for the proposition that conceptual separability exists
when the functionality of a useful article does not require the article’s
specific ornamental or aesthetic design. 105
Five years later, this proposition was officially adopted by the
Second Circuit when it created the Barnhart test. 106 The central issue in
Barnhart was whether the design of four human torso forms, used as
mannequins, was copyrightable. 107 The Second Circuit held that the
mannequins were not copyrightable because they did not possess any
aesthetic features that could exist independently from the mannequins’
utilitarian function. 108 The court acknowledged Kieselstein and the basic
test that it had used in that case. 109 However, the court refused to come
to the same conclusion it did in Kieselstein because the cases were easily
105. See Brandir Int’l v. Cascade Pac. Lumber Co., 834 F.2d 1142, 1144 (2d Cir.
1987) (stating that later cases have distinguished the Kieselstein decision because the
design of the buckles was not dictated by their function (citing Carol Barnhart, Inc. v.
Econ. Cover Corp., 773 F.2d 411, 419 (2d Cir. 1985))).
It should be noted that this case spawned a very vehement dissent from Judge
Weinstein. The dissent in the case questioned the decision on two grounds. First, the
dissent argued that Congress did not intend to extend copyright protection to an industrial
product, even if it is aesthetically satisfying and valuable, unless the shape of the product
contains some element that, physically or conceptually, can be identified as separable
from the utilitarian aspects of the article. Id. at 997 (Weinstein, J., dissenting). The
dissent argued that the buckles’ “innovations of form are inseparable from the important
function they serve—helping to keep the tops of trousers at waist level.” Id. at 994.
Second, the dissent contended that even if the aesthetic aspects of the buckle could be
conceptually separated from the utilitarian function of the buckles, the designs were
arguably not copyrightable because they fit under 17 U.S.C. § 202(e), which bars
copyright extension to items of apparel. Id. at 998-99. Despite such a strong dissent,
several courts implemented the Kieselstein test in the early 1980s. See, e.g., Norris Indus.
v. Int’l Tel. & Tel. Corp., 696 F.2d 918 (11th Cir. 1983); Williams Elec., Inc. v. Bally
Mfg. Corp., 568 F. Supp. 1274 (N.D. Ill. 1983); Trans-World Mfg. Corp. v. Al Nyman &
Sons, 95 F.R.D. 95 (D. Del. 1982).
106. 773 F.2d 411 (2d Cir. 1985).
107. Id. at 412.
108. Id. at 419. The opinion makes it clear that just because an item is
aesthetically valuable does not guarantee it copyright protection:
While [the mannequins’ use for purposes other than modeling clothes] may
indicate that the forms are “aesthetically satisfying and valuable,” it is
insufficient to show that the forms possess aesthetic or artistic features that
are physically or conceptually separable from the forms’ use as utilitarian
objects to display clothes. On the contrary, to the extent the forms possess
aesthetically pleasing features, even when these features are considered in the
aggregate, they cannot be conceptualized as existing independently of their
utilitarian function.
Id. at 418.
109. Id. at 418-19 (“Nor do we agree that copyrightability here is dictated by
[Kieselstein], a case we described as being ‘on a razor’s edge of copyright law.’”).

1084 WISCONSIN LAW REVIEW
distinguishable. 110 Nevertheless, the test in Barnhart was whether or not
the artistic parts of the item were required for the item to serve its
utilitarian function, and is essentially an added layer on the basic test set
forth in Kieselstein. 111
A third test emerged from Barnhart based on Judge Newman’s
dissenting opinion. After establishing that the mannequins were indeed
useful items, 112 Judge Newman disagreed with the court’s conclusion
that the mannequins were not copyrightable. 113 He then asserted that
conceptual separability should depend on whether “the article
stimulate[s] in the mind of a beholder a concept that is separate from
[the] concept evoked by the utilitarian function.” 114 Applying his test,
110. See id. at 419. The belt buckles in Kieselstein were legitimate works of art
(the court mentions that they had been displayed at the Metropolitan Museum of Art in
New York), and their artistic function was absolutely unnecessary for the buckles to
function as belt buckles. Id. at 418-19. On the other hand, the “artistic” mannequin
features in Carol Barnhart (the configuration of the mannequin’s breasts, width of
shoulders, etc.) were inextricably intertwined with the utilitarian function of the
mannequin. Id. at 419. The difference revolved around the fact that, while mannequins
need a configuration of body parts to achieve their utilitarian function, the belt buckles in
Kieselstein did not require their artistic elements to achieve their utilitarian function. Id.
The court thus found that, while the belt buckle designs were separable from the
utilitarian function of the buckle, the mannequin configurations were not. See id.
111. See id.
112. Id. at 420 (Newman, J., dissenting). Judge Newman reached this
conclusion because each mannequin had “the ‘intrinsic utilitarian function’ of serving as
a means of displaying clothing and accessories to customers of [clothing] stores.” Id.
113. Id. at 421. In so doing, Judge Newman rejected several tests that had been
introduced by other courts dealing with conceptual separability, including the Kieselstein
test. Id. at 421-22. Two of these tests bear mentioning. First, Judge Newman rejected a
test that an article primarily used for utilitarian purposes does not have conceptually
separable artistic elements even if a secondary use for the item is artistic, because it
would deny copyright protection to an article that is valued for its appearance, albeit by a
minority of the population. Id at 421. A second test, related to the first, argues that
“conceptual separability exists where there is any substantial likelihood that even if the
article had no utilitarian use it would still be marketable to some significant
segment . . . simply because of its aesthetic qualities.” Id. (quoting 1 MELVILLE B.
NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 2.08[B] (1985)). Judge Newman
rejected this test as well, claiming that even though buyers may not represent a
substantial segment of the market, they may still buy the item expressly as a work of art,
which should still make copyright law applicable. Id. at 422.
114. Id. at 422. Judge Newman reasoned that his test revolved around two
concepts: the identity of the beholder and when a concept can be considered separate.
Id. He argued that a reasonable person standard should be used to determine the identity
of the beholder. Id. He also argued that a concept can be considered separate when the
design of a form engenders a concept in the mind of a beholder that is distinct from the
concept of the form’s utilitarian function. See id. He vouched for these standards despite
the fact that it would require a court and jury to consider the question of what constitutes
art, which could be well outside their knowledge or expertise. See id. at 423.

2006:1067 Stealing Beauty 1085
Newman disagreed with the majority’s decision that a rational trier of
fact could not determine that the mannequins created a concept separable
from the utilitarian function of the mannequin. 115 Although Judge
Newman’s test has been praised by legal scholars, courts have opted to
apply the majority’s test instead of the dissent. 116
Professor Paul Goldstein devised a fourth test for conceptual
separability that directly stemmed from Barnhart. 117 Under Goldstein’s
test, conceptual separability exists if a work can stand on its own as a
work of art traditionally conceived and if the useful article in which it is
embodied would be equally useful without the artistic part. 118
Goldstein’s test is almost identical to the Barnhart test, the difference
being that it substitutes the court’s requirement that the artistic part be
unnecessary with the requirement that the item be “equally useful”
without the artistic part. 119 Despite language suggesting that the test only
applies to works of art worthy of display in museums, 120 courts have
applied Goldstein’s test to more modest artistic expressions. 121
Finally, in Brandir, the Second Circuit implemented the work of
another law professor, Robert Denicola. 122 Denicola’s test would extend
115. Id. at 426.
116. See, e.g., Collezione Europa U.S.A., Inc. v. Hillsdale House Ltd., 243 F.
Supp. 2d 444 (M.D.N.C. 2003); Celebration Int’l v. Chosun Int’l, 234 F. Supp. 2d 905
(S.D. Ind. 2002). However, Judge Newman’s dissent is just as highly regarded as the
majority opinion, if not more so. See Bonazoli v. R.S.V.P. Int’l, 353 F. Supp. 2d 218,
223 (D.R.I. 2005) (criticizing the Carol Barnhart majority while applying Judge
Newman’s dissent).
117. 1 PAUL GOLDSTEIN, GOLDSTEIN ON COPYRIGHT § 2.5.3, at 2:76 (3d ed.
2005).
118. Celebration, 234 F. Supp. 2d at 914 (citing GOLDSTEIN, supra note 114, §
2.5.3, at 2:76).
119. See id. The main difference seems to be that some courts have construed
the Barnhart test as a test that determines physical separability, whereas the Goldstein
test determines conceptual separability. See, e.g., id. (“Professor Goldstein’s conceptual
separability test is very similar, if not the same as, the Barnhart physical separability
test.”). This distinction is questionable, however. Physical separability essentially asks
whether an artistic part of a useful article could be sliced off for separate display. See
Pivot Point Int’l v. Charlene Prods., Inc., 170 F. Supp. 2d 828, 833 (N.D. Ill. 2001).
However, as stated above, the Barnhart court said that the belt buckles in Kieselstein
were separable because they were not necessary to the belt’s function, not because the
design could be sliced away for a separate display. Barnhart, 773 F.2d at 419.
120. See 234 F. Supp. 2d at 914 (“[The “work of art” at issue] is obviously not
the type of art that would be accepted by a museum for its permanent collection, in
contrast to some of the belt buckles at issue in Kieselstein-Cord.”).
121. See, e.g., id. (applying Goldstein’s test to a costume mask in the shape of a
tiger).
122. Brandir Int’l v. Cascade Pac. Lumber Co., 834 F.2d 1142, 1145 (2d Cir.
1987).

1086 WISCONSIN LAW REVIEW
copyright protection based on the extent to which the work reflects an
artist’s expression uninhibited by functional concerns. 123 This test was
very well suited for the fact situation in Brandir. In Brandir, an artist
manufactured a bicycle rack based on a prior wire sculpture he had
created, and sought a copyright for the design. 124 The central issue of the
case was whether the bicycle rack was designed primarily with artistic or
utilitarian considerations in mind. 125 In deciding that the rack was not
copyrightable, the court held that Denicola’s test was the best overall test
for conceptual separability. 126 The court explains the test as follows:
[I]f design elements reflect a merger of aesthetic and functional
considerations, the artistic aspects of a work cannot be said to
be conceptually separable from the utilitarian elements.
Conversely, where design elements can be identified as
reflecting the designer’s artistic judgment exercised
independently of functional influences, conceptual separability
exists. 127
Because the designer of the rack was significantly influenced by
making the rack useful, the court could not conceptually separate the
aesthetic elements from the useful elements of the rack, and therefore
found that the rack was not copyrightable. 128 Despite the Second
123. Denicola, supra note 58, at 741; see also supra note 58.
124. 834 F.2d at 1146.
125. See id. at 1146-47.
126. Id. at 1145. The court held that Denicola’s test was the best because it was
consistent with most of the other tests that the Second Circuit had considered up until that
point. Id. The court held that the Denicola approach was applicable to both Kieselstien
and Barnhart because the belt buckle designs in Kieselstein were “purely aesthetic
choices, independent of the buckles’ [utilitarian] function[s],” while the artistic elements
of the Barnhart mannequin torsos were implemented to further the utilitarian function of
the torsos. Id. It also agreed with Denicola’s argument that the test would minimize de
facto discrimination against purely artistic choices made in industrial designs. Id.
Finally, it deemed Denicola’s test the easiest to administer. Id. The final conclusion is
interesting because Denicola himself acknowledged that his seemingly straightforward
test would be difficult for courts to evenly apply. See Denicola, supra note 58, at 747
(“A model requiring assessments of artistic independence and utilitarian influence cannot
offer the neat divisions promised by many of the alternative formulations.”). Denicola
defended his test, however, by saying that conceptual separability will always be
difficult, and using artificial or categorical distinctions to more easily answer the question
will often lead to unfair results. See id.
127. Brandir, 834 F.2d at 1145.
128. Id. at 1146-47. The designer had apparently altered the bicycle rack
significantly in order to make it more functional. Id. at 1146. The court acknowledged
this alteration and stated that “[h]ad Brandir merely adopted one of the existing
sculptures as a bicycle rack, neither the application to a utilitarian end nor

2006:1067 Stealing Beauty 1087
Circuit’s assertion that Denicola’s test was the best, the Brandir decision
proved to be quite unpopular, as shown by both the dissenting opinion 129
and the response of subsequent courts and legal scholars. 130 However,
no court has explicitly rejected the holding in Brandir, which means that
it is yet another test available to courts for determining conceptual
separability.
Given these five different and potentially conflicting tests, the
doctrine of conceptual separability was in dire need of clarification. In
Pivot Point, the Seventh Circuit efficiently combined all of these tests
and created a workable definition of conceptual separability, despite the
dissent’s attempt to determine conceptual separability outside the context
of these tests. 131 Consistent with Kieselstein and Barnhart, the court
commercialization of that use would have caused the object to forfeit its copyrighted
status.” Id. at 1147.
129. Judge Winter’s dissent found two flaws with the majority’s decision. First,
Winter argued that the majority’s adaptation of Denicola’s test diminished the statutory
doctrine of conceptual separability to the vanishing point. Brandir, 834 F.2d at 1151
(Winter, J., concurring in part and dissenting in part). Winter noted the differences
between Kieselstein and Barnhart and claimed that the two cases were not reconcilable,
despite the majority’s valiant efforts. Id. In this determination, Judge Winter sided with
the dissent in Barnhart, claiming that conceptual separability exists whenever an ordinary
reasonable observer could conceive an artistic concept not related to the utilitarian value
of the article. See id. He thus contended that conceptual separability existed in the
bicycle rack because “[i]f one were to place [the rack] on an island without access, or in a
park and surround the work with a barrier, . . . its status as a work of art would be beyond
dispute.” Id. at 1152. Finally, Judge Winter contended that the majority’s decision
revolved around the designer’s fortuitous decision to alter the original design to
accommodate a new-found utilitarian purpose for his design. Id. Winter disagreed with
this decision because, in his opinion, it flew directly in the face of the Copyright Act,
which states that the legal test for conceptual separability is “how the final article is
perceived, not how it was developed in various stages.” Id.
130. See, e.g., Nat’l Theme Prods., Inc. v. Jerry B. Beck, Inc., 646 F. Supp.
1348, 1353 (S.D. Cal. 1988) (determining that the sequence and chronology of a
designer’s choices in assembling an article are not only beyond the scope of Denicola’s
test, but will rely largely on fortuitous circumstances occurring during the creative
process); Polakovic, supra note 78, at 877 (criticizing Denicola’s approach because its
determinations are not within the scope of a court’s power and because of the likelihood
that true artists would not be able to accurately document the chronology of their artistic
impulses).
131. The dissent disagreed with the majority’s interpretation of the conceptual
separability statute. Pivot Point Int’l v. Charlene Prods., 372 F.3d 913, 934 (7th Cir.
2004) (Kanne, J., dissenting). Judge Kanne argued that the statute “asked two
questions”: (1) “Does the useful article incorporate ‘sculptural features that can be
identified separately from the utilitarian aspects’ of the article”; and (2) “[A]re these
features ‘capable of existing independently’ from the utilitarian aspects?” Id. Judge
Kanne asserted that Pivot Point’s mannequin faces would be significantly less functional
without the facial features, and therefore the artistic portion of the facial features could
not exist separately from the utilitarian aspects. Id. This analysis, however, ignores the

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properly determined that conceptual separability relies on the degree to
which an artistic element is necessary for the item’s functionality. 132 The
court also properly recognized that Barnhart was consistent with the
Denicola test applied in Brandir, because if the artistic elements of an
item are not necessary for the item’s utilitarian function, it can rightly be
said that these artistic elements reflect artistic choices that are
independent of any functional concern. 133 Further, these requirements
are consistent with Goldstein’s test because, as implied by the Barnhart
opinion, 134 if the artistic aspects of an item are not necessary to the
item’s usefulness, then the exclusion of such aspects certainly would not
make the item any less useful. 135 Finally, the test proposed by Judge
Newman in his dissent fits nicely within this framework as an added
qualification. If the artistic elements of an item are superfluous to the
item’s utilitarian function, then the artistic elements would surely
stimulate a function that is separate and distinct from any utilitarian
function of the item. 136 In short, the Seventh Circuit’s hybrid test for
determining conceptual separability accurately states the intention behind
several prior tests, and clarifies the seeming contradictions among them.
III. THE MERGER DOCTRINE AND HOW IT LOST OUT TO THE DOCTRINE
OF CONCEPTUAL SEPARABILITY IN PIVOT POINT
Despite the Seventh Circuit’s commendable clarification of
conceptual separability, Pivot Point is a flawed decision because it
granted copyright protection to an idea, rather than an expression of an
Kieselstein decision and therefore misses the point. These particular features are capable
of existing separately from the utilitarian aspects of the mask even though the mannequin
head would require some facial features to serve its purpose within the cosmetology
industry.
132. See id. at 925 (majority opinion).
133. See id. at 931.
134. See Carol Barnhart, Inc. v. Econ. Cover Corp., 773 F.2d 411, 418 (2d Cir.
1985)).
135. See Pivot Point, 372 F.3d at 931. Interestingly, though, the defendant in
Pivot Point argued that applying the Goldstein test would favor it, because taking away
Mara’s facial features would make the mannequin less useful for applying makeup. See
id. at 920, 923-24. The argument does not work, however, because the defendant would
be hard-pressed to explain how these specific facial features—that is, features that
elicited the “hungry look” of runway models—could not have been replaced with any
number of facial features and still not serve the utilitarian function of a surface on which
makeup could be applied. In other words, the plaintiff should have been able to defeat
the defendant’s argument by saying that any facial features could have been given to
Mara to serve her utilitarian function, but it chose these facial features that resulted from
their own unique vision and that were not necessary to Mara’s usefulness.
136. See Barnhart, 773 F.3d at 422-23 (Newman, J., dissenting).

2006:1067 Stealing Beauty 1089
idea, which flies in the face of the merger doctrine. This section briefly
describes the merger doctrine and how it has been applied in other cases.
It then asserts that a universal standard of beauty exists in our society.
Because this standard is so uniform, this section argues that any artistic
expression of the standard cannot adequately be differentiated from the
standard of beauty itself. Applying this idea to Pivot Point, this section
concludes that Pivot Point’s use of the particularized features of 1980s
runway models should not be copyrightable because its expression
cannot be adequately separated from the prevailing standard of beauty in
the 1980s.
As stated in the introduction to this Note, the merger doctrine relies
on the fundamental copyright principle that copyrights only protect the
expressions of ideas, not the ideas themselves. 137 The merger doctrine
states that when there is only one way to express an idea, the expression
of the idea “merges” with the idea itself. 138 If the idea and expression are
inseparable, the expression is not entitled to copyright protection because
to grant copyright protection would be tantamount to granting protection
to the idea. 139 If, however, the idea can be divorced from and exist
wholly outside the expression, the expression is deserving of copyright
protection. 140
Courts have found that, at least for animal mannequins, the merger
doctrine does not apply—that is, the artists’ expression of the underlying
idea is sufficiently different from the idea that it constitutes a unique
expression deserving copyright protection. 141 Similarly, courts have
137. See, e.g., Mattel, Inc. v. Goldberger Doll Mfg. Co., 365 F.3d 133, 135-36
(2d Cir. 2004); Wildlife Express Corp. v. Carol Wright Sales, Inc., 18 F.3d 502, 507 (7th
Cir. 1994); Mattel, Inc. v. Azrak-Hamway Int’l, 724 F.2d 357, 360 (2d Cir. 1983);
Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930).
138. See, e.g., Sharon Appel, Copyright, Digitization of Images, and Art
Museums: Cyberspace and Other New Frontiers, 6 UCLA ENT. L. REV. 149, 162 n.48.
139. See, e.g., Eugene R. Quinn, Jr., Web Surfing 101: The Evolving Law of
Hyperlinking, 2 BARRY L. REV. 37, 53 (2001).
140. Id.
141. See, e.g., Hart v. Dan Chase Taxidermy Supply Co., 86 F.3d 320, 323 (2d
Cir. 1996) (holding that fish mannequins are copyrightable); Rushton Co. v. F.W.
Woolworth Co., 135 F. Supp. 317, 325 (S.D.N.Y. 1955) (holding that the facial features
of a chimpanzee toy are copyrightable); Satava v. Lowry, 323 F.3d 805, 810-11 (9th Cir.
2003) (holding that the elements that are natural to jellyfish physiology could not be
protected). The Satava holding is consistent with the notion that copyrights only protect
the expression of ideas, not the ideas themselves. See id.; 17 U.S.C. § 102(b) (2000).
Nonetheless, the Ninth Circuit stated that “a combination of unprotectable elements is
eligible for copyright protection . . . if those elements are numerous enough and their
selection and arrangement original enough that their combination constitutes an original
work of authorship.” Satava, 323 F.3d at 811.

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been willing to grant copyright protection to dolls. 142 For example, in
Mattel, Inc. v. Goldberger Doll Manufacturing Co., the Second Circuit
held that the facial features of the famous Barbie doll were
copyrightable, despite the defendant’s assertions that standard features
like upturned noses, widely spaced eyes, and thin figures were not
copyrightable. 143 The court contended that there are “innumerable ways
of making upturned noses, bow lips, and widely spaced eyes,” 144 despite
the fact that these are standard features on dolls. 145 The court said that,
while the defendant was not prohibited from using a similar idea for its
doll’s characteristics, it was prohibited from exactly copying Mattel’s
configuration because Barbie’s facial features were Mattel’s
“particularized expression” of an idea. 146 Although the court did not
explicitly say it was analyzing the case according to the merger doctrine,
the court presumably believed that there were enough ways to construct a
doll face that the merger doctrine did not apply. At first glance, the
holding in Mattel seems to apply to any sculpture based on the human
form, since dolls are, to some extent, based on actual human beings.
However, when mannequins are based on actual human beings, the
analysis is quite a bit trickier. These mannequins are not based on
whimsical notions of otherworldly beauty, but are instead based on
naturally occurring specimens that society as a whole evaluates as
beautiful, average, or ugly. As human beings, we all have ideas about
what is and is not beautiful. But how much of this is based on our own
unique perception of what is beautiful? Determining whether our society
has created a universal standard of beauty is crucial to answering this
question. If such a standard exists, then any expression of this standard
in mannequins will necessarily be similar to every other expression of
this standard. These inevitable similarities would, despite the holdings in
Hart and Goldberger, make the features uncopyrightable because the
idea behind the mannequins—a universal standard of beauty within our
society—cannot be separated from the mannequins adhering to that
standard.
142. See, e.g., Goldberger, 365 F.3d at 135 (holding that a Barbie doll’s facial
features are copyrightable).
143. Id. The court stated that “[t]he proposition that standard or common
features are not protected is inconsistent with copyright law.” Id. In making this
determination, the court relied on the notion that only a modicum of creativity is required
to make a work copyrightable, and such little creativity may very well implement
common features. See id.
144. Id.
145. See id. at 136 & n.3.
146. Id. at 136. The court stated that this would be true even if Mattel showed
that the defendant only got the idea from looking at Barbie dolls. Id.

2006:1067 Stealing Beauty 1091
A. Symmetrical Features and Hour-Glass Figures:
Is There a Universal Standard of Beauty?
Generally, our society is reluctant to admit that there is a universal
standard of beauty, 147 probably because we have such a difficult time
pinpointing the specific components of beauty. 148 Philosophers such as
Aristotle and Thomas Aquinas determined that beauty is only dependent
upon symmetry and proportion of parts 149 —an idea that, if accepted,
would destroy the idea that beauty is a subjective ideal. Other
philosophers, like Emmanuel Kant, contended that “questions of beauty
cannot any more be settled by vote than questions of politics,” and that
“only a man hopelessly submissive to authority will undertake to mould
his aesthetic opinions upon those of the multitude or any smaller group
whom he may regard as particularly distinguished.” 150 Thus, the debate
over whether beauty is subjective or objective has been going on for
quite some time.
Still, it is generally accepted that different cultures and societies
value different physical characteristics more than others. In The Descent
of Man and Selection in Relation to Sex, Charles Darwin mentions how
different cultures determine beauty based on skin color, presence and
length of beard, and facial shape before coming to the ultimate
conclusion that “the different races of man differ in their taste for the
beautiful.” 151 This idea is mirrored by the fact that, even within
147. People cling to adages such as “beauty is in the eye of the beholder” when
addressing notions of beauty, even in the most academic (and presumptively objective)
forums. See, e.g., Mitchell David Greggs, Note, Shakin’ It to the Back of the Bus: How
Parks v. LaFace Uses the Artistic Relevance Test to Adjudicate Artistic Content, 61
WASH & LEE L. REV. 1287, 1288 (2004) (“Beauty is truly in the eye of the
beholder . . . .”).
148. See, e.g., Rosemary Righter, The Changing Face of Beauty, THE TIMES
(London), Nov. 19, 2003, § T2, at 4 (“The definition of human beauty is elusive.”); Pat
Kennedy, Miss America Shows Real Beauty Comes From Within, PITTSBURGH POST-
GAZETTE, Feb. 21, 2001, at S2 (“What is that ever-elusive combination of features [that
makes someone beautiful]?”).
149. ROBIN TOLMACH LAKOFF & RAQUEL L. SCHERR, FACE VALUE: THE POLITICS
OF BEAUTY 46 (1984).
150. Id. at 35-36. Kant also contended that “a judgment of others which is
unfavorable to ours may indeed make us scrutinize our own with care, but it can never
convince us of its incorrectness.” Id.
151. CHARLES DARWIN, THE DESCENT OF MAN AND SELECTION IN RELATION TO
SEX 573-76 (rev. ed. 1874). Darwin argues, for example, that in some African tribes,
people with the darkest skin are valued as being the most physically attractive, while in
China a person with a more yellow complexion is deemed as being beautiful. Id. at 574.
Regardless of the validity (or lack thereof) of these specific claims in contemporary
society, the conclusion that groups set their own ideals of beauty is consistent with the

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European cultures, the size and shape of the physically ideal female has
altered itself several times within the past few centuries. 152 Notions of
what is beautiful vary to such a degree that some cultures have gone to
extremes to implement their perceptions of beauty. 153 In light of such
disparate notions of beauty, it seems indisputable that every culture and
time period has a set of physical characteristics that it deems beautiful.
But is it truly indisputable? Two recent studies have suggested that
there are certain features that are universally considered attractive by all
cultures. The first study, conducted by Professors Judith Langlois and
Lori Roggman, took “mug shots” of a random sampling of ninety-six
college students, and divided the samples into three groups of thirty-two
each. 154 Within each subgroup, Langlois and Roggman used computer
technology to create a composite of all thirty-two faces. 155 Using the
composite face as their thirty-third sample, Langlois and Roggman then
asked the subjects to rate which face was the most attractive. 156 Without
fail, each subject responded that the most beautiful face was the
idea that cultures value traits that occur more frequently, an argument which will be
presented later in this section.
152. Because past societies lacked the magazines and other media that our
society holds so dear, Lakoff and Scherr looked to art to determine what the physical
ideals for the female body were in past centuries. See Lakoff & Scherr, supra note 4, at
54. To make sure that these representations actually embodied physical ideals (and not
subjects who were not necessarily deemed beautiful), they focused their study on
representations of Venus and Aphrodite in those cultures. Id. at 55. Almost all of the
representations they presented depicted the ideal female figure as thicker than media
representations today, often with pot bellies seemingly designed to elicit ideas of
motherhood. See id. at 55 figs. 3.1-3.18. This idea seems consistent with popular ideas
of the 1920s that denounced the “horrendous” effects that corsets, intended to compress
the woman’s waist, have had on “civilized races.” See, e.g., M.O. STANTON, THE
ENCYCLOPEDIA OF FACE AND FORM READING: A COMPLETE SUMMARY OF CHARACTER
ANALYSIS 1090 (6th rev. ed. 1920) (“Many women entertain the notion that moderate
compression of the waist is not at all hurtful. Now, moderate compression is what
produced all these deformities, for, according to accounts, no woman ever laced tightly;
and thin, weak, ugly figures and faces were quite numerous in every civilized
community.”). After looking at contemporary media representations of beauty, however,
one would infer that these past ideals no longer exist. See, e.g., Righter, supra note 149
(hypothesizing that, by today’s standards, the Venus De Milo would be in dire need of a
personal trainer, despite the fact that her figure was adored by Parisians in past centuries).
153. Perhaps the most cruel example of this is the binding of young women’s
feet in ancient China. For a brief description of this practice, see NANCY C. BAKER, THE
BEAUTY TRAP: EXPLORING WOMAN’S GREATEST OBSESSION 15 (1984).
154. Bruce Bower, Average Attractions: Psychologists Break Down the Essence
of Physical Beauty, 137 SCI. NEWS 298, 298 (1990) [hereinafter Bower, Average
Attractions].
155. Id.
156. Id.

2006:1067 Stealing Beauty 1093
composite face. 157 Langlois and Roggman concluded, therefore, that the
most attractive people were “not blessed with rare physical qualities,”
but features that “approximate the mathematical average of all faces in a
particular population.” 158 This conclusion suggests that people tend to
find the most average, or commonly occurring, features in human beings
attractive.
Langlois also argues that our ideas of beauty have their foundation
in infancy. In a separate study, she asked several hundred adults to rate
each face in a collection of sixteen as moderately attractive or
moderately unattractive. 159 She then presented the same faces to infants,
and measured how long the babies gazed at each category of faces. 160
Langlois found that the babies gazed longer at the faces that the adults
deemed attractive, 161 regardless of the race of the child or adult viewing
the face. 162 These findings suggest that there is some combination of
facial features that appeal to us despite cultural influences. 163
Studies have also shown that there are specific physical traits that
are physically desirable among men and women regardless of the cultural
background of the beholder. Michael Cunningham, the prolific scientist
from the University of Louisville, has reached scientific conclusions that
157. Id.
158. Id. A valid critique of this study, however, is that it primarily focused on
Caucasian samples and did not sufficiently include faces from other races. Langlois
predicted that a composite of a different racial group would also be judged more
attractive than the individual faces making up the composite, regardless of the racial
background of the beholder. Id. at 299. Even so, this argument is consistent with the
idea that different cultures have different beauty standards for its members, and one
universal standard of beauty cannot be applied cross-culturally.
159. Bruce Bower, Baby Face-Off: The Roots of Attraction, 131 SCI. NEWS 310
(1987) [hereinafter Bower, Face-Off].
160. Id.
161. Id. These results have been repeated in other studies. See, e.g., Susie
Weldon, Why It’s a Perk to Be Pretty; Even Newborn Babies Love a Pretty Face, W.
DAILY PRESS (Bristol, U.K.), Feb. 21, 2000, at 6 (presenting a study similar to Langlois’
in which babies spent approximately twice as much time gazing at faces adults deemed
physically attractive).
162. See Bower, Average Attractions, supra note 155, at 299.
163. Langlois’ study does not posit that infants understand the societal construct
of beauty. Rather, she hypothesizes that “attractive faces may be more curved, less
angular and more vertically symmetrical than unattractive faces,” features are known to
be preferred by infants. See Bower, Face-Off, supra note 160. Langlois is also not
necessarily mitigating the argument that cultural differences affect a certain culture’s
perception of what is beautiful. Instead, she argues that a “‘universal standard of
attractiveness’ may interact with cultural factors and changing conceptions of beauty over
time.” Id.

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lips are what determine whether a face is attractive, 164 that bald men are
universally deemed less attractive than men with hair, 165 and that there
are certain combinations of facial features in men and women that are
preferred by society at large. 166 Another scientist, Devendra Singh, has
noted that women who have waists that are significantly smaller than
their hips are deemed more attractive, regardless of whether the woman
is voluptuous or waifish. 167
Despite the researchers’ assertions to the contrary, however, it is
unlikely that these “universal” notions of beauty emerged independent of
social and cultural notions of beauty. 168 Many of Cunningham’s
supposed “universal” standards of beauty are not innate, but are imposed
on people by societal concerns. 169 It is also difficult, if not impossible, to
164. According to a ten-year study conducted by Cunningham, a large set of lips
on women is universally considered more attractive than smaller lips. See Sue Blackhall,
The Lips Have It . . . ; Scientists Explain Why We Fall for Each Other, EVENING
STANDARD (London), Mar. 3, 2003, at 9. On men, medium-sized lips, simultaneously
appearing rugged and sensual, are more attractive. See id.
165. See Mark Coomes, Maybe Bald Is Not Beautiful, COURIER J. (Louisville,
Ky.), Oct. 14, 2002, at IF.
166. Cunningham’s results were summarized in a 1991 Science News article:
Cross-cultural studies of Asians, Hispanics, blacks and whites in the United
States . . . reveal that men and women prefer female faces with the childlike
features of large eyes, small nose and small chin, the sexually mature features
of high cheekbones and narrow cheeks, and the expressive features of a large
smile and eyebrows set clearly above the eyes. The ideal male face looks
much like an ideal female face, with the addition of a larger chin and nose,
and thicker eyebrows.
Bruce Bower, Darwin’s Minds; Psychologists Probe the Descent of the Human Psyche,
140 SCI. NEWS 232, 234 (1991) [hereinafter Bower, Darwin’s Minds]. Unlike Langlois,
however, Cunningham also argues that to be truly beautiful, a person must have truly
outstanding features, not just the features that are most immediately familiar to a given
culture. See id. (“Although average faces appear relatively good looking, truly stunning
faces contain some not-so-typical features . . . .”); see also Bruce Bower, Facial Beauty
May Lie More Than Skin Deep, 145 SCI. NEWS 182, 182 (1994) (“An average face shape
is attractive but may not be optimally attractive . . . .”). In other words, having the most
normal features will make you attractive, but having primarily normal features plus some
outstanding features will make you stunning.
167. See Anna Maxted, The Belle Curve; Why All Men Love a Waistline
(Allegedly): Psychologists Have Defined the Shape of Beauty, INDEPENDENT (London),
Apr. 30, 1995, at 23.
168. This notion is best summed up by C. Loring Brace, an anthropologist at the
University of Michigan: “Our hardwiredness can be altered by all sorts of expectations—
predominantly cultural. . . . The idea that there is a standard desirable female type tells
you more about the libidinous fantasies of aging male anthropologists than anything
else.” Cathy Newman & Judi Cobb, The Enigma of Beauty, 197 NAT’L GEOGRAPHIC 94,
107 (2000).
169. In his Darwinian approach to determining what is attractive, Cunningham
argues that the ideal female face is “friendly, but of high social status,” while the ideal

2006:1067 Stealing Beauty 1095
separate the perceptions of the adult assessors of beauty in Langlois’
study from the media representations to which they had been exposed.
And Singh’s conclusion that we universally believe that women who
have smaller waists than hips are more beautiful would not have been
true five-hundred, or even one-hundred, years ago. 170
Even so, these studies do suggest a uniformity among different
cultures that contradicts the idea that different societies and cultures
value different physical traits. These conflicting ideas can be reconciled.
With the advent of mass media, our culture is becoming more and more
global—for better or for worse. 171 Given Hollywood and American
media’s global audience, it could be said that the media has imposed a
standard of beauty upon the entire world. 172 American movies and
magazines are frequently accused of being “awash in interchangeable
blonds with hungry mouths and empty eyes.” 173 Meanwhile, fashion
models—the media’s prime specimen of beauty—routinely wear
temporary, washable UPC codes on their skin so that fashion designers
can differentiate between them enough to know which model wears
which ensemble. 174 In short, because American media is so omnipresent
on a global scale, many cultures that once had their own independent
notions of beauty have adopted—or at the very least acknowledged—the
global media’s homogenous standard of beauty. As a result, it seems that
male face appears “more mature and socially dominant.” See Bower, Darwin’s Minds,
supra note 167. These characteristics are clearly not innate, but imposed by society and
culture.
170. See Maxted, supra note 168.
171. For an in-depth analysis of this concept, see Scott R. Olson, The
Globalization of Hollywood; Global Aesthetic Is a Reality, INT’L J. WORLD PEACE, Dec.
2000, at 3 (asserting that Hollywood has become a global aesthetic to which all members
of society can relate). A perfect example of this global change occurred in a Kenyan
beauty contest held in the early 1990s. See Keith Richburg, In the Eye of the Beholder,
WASH. POST, Dec. 2, 1991, at A12. Some questioned Kenya’s annual beauty contest
because of public belief that the contest winner did not adequately embody its country’s
standard of beauty. See id. Had the Kenyan people had a say in determining which
woman won the title of Miss Kenya, it is highly likely that the woman would have more
resembled the majority of women in Kenyan society, rather than the winner, who
possessed more Western, Hollywood-like characteristics. Id.
172. See Righter, supra note 149 (asserting that Western culture is creating a
homogenized global beauty standard).
173. Manohla Dargis, Glamour’s New Orientation, N.Y. TIMES, Dec. 5, 2004, §
2, at 1; see also Joanna Briscoe, Haven’t I Seen You Somewhere Before?, GUARDIAN
(London), Jan. 17, 2004, at 24 (asserting that a combination of cosmetics, plastic surgery,
and Hollywood aspiration has created a uniform look—usually blond and improbably
slender—that women strive to obtain for themselves).
174. Tricia Bishop, At 30, The UPC Scans More Than Just Cans, BALTIMORE
SUN, Jun. 29, 2004, at 1A.

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America’s standard of beauty has unduly become a global standard of
beauty.
Indeed, vehement critiques of this American standard reinforce the
notion that such a universally imposed standard exists. Opponents of this
universal standard blame mass media for attempting to import its ideals
of beauty upon all members of society without considering the disparate
cultural vantage points of what is beautiful. 175 Others argue that people,
particularly women, may infer that it is imperative for them to emulate
the images of the media, and therefore use their own emulation of these
characteristics as a barometer of their own success in other avenues of
life. 176 While people have different theories as to how to best combat
these standards of beauty, they definitely acknowledge that there is a
standard to combat.
Ironically, the assertion that this standard exists is not weakened by
the media’s recent attempts to display a wider variety of models—this
trend actually reinforces the universal standard. While an in-depth
analysis of the media’s diversification trends is beyond the scope of this
section, the trend has been interpreted as alternatively empowering, 177
exploitative, 178 and even passé. 179
175. See Nancy Ehrenreich, Confessions of a White Salsa Dancer:
Appropriation, Identity and the “Latin Music Craze,” 78 DENV. U. L. REV. 795, 805
(2001) (stating that the media only values physical attractiveness, while Latino culture
takes into account, among other things, dancing ability and overall sexiness in
determining beauty). The assumption here, of course, is that the face of beauty, at least
according to the media, is white and heterosexual. See, e.g., Susan Jane Gilman, Klaus
Barbie, and Other Dolls I’d Like to See, in ADIOS BARBIE: YOUNG WOMEN WRITE ABOUT
BODY IMAGE AND IDENTITY 8, 16-20 (Ophira Edut ed., 1998).
176. See, e.g., NAOMI WOLF, THE BEAUTY MYTH: HOW IMAGES OF BEAUTY ARE
USED AGAINST WOMEN (1991). Wolf contends that beauty is a system of currency
determined by politics, and that American culture, in response to women striving for
equality, has essentially placed this insurmountable hurdle upon women in attempts to
keep women from fully achieving equality. Id. at 12. Wolf supports this argument by
mentioning the caricature of the “ugly feminist” that was resurrected to shun the
women’s movement of the 1960s. Id. at 18. Interestingly, however, Wolf does not state
that this is a conspiracy initiated by men to keep women in their place, but instead a
“necessary fiction” implemented by both sexes essentially to preserve the status quo. Id.
at 17. Nonetheless, Wolf thus argues that women should reject the notion of a universal
standard of beauty because it is a myth designed to keep women’s position in society
static. See id. at 19.
177. See, e.g., Catherine Fitzpatrick, Face Value: Minority Models Continue to
Make Inroads on the Runways, MILWAUKEE J. SENTINEL, Aug. 26, 2001, at 5L
(describing the broader array of opportunities that models of color have compared to the
opportunities models of color have had in years past).
178. One of the most successful nonwhite models of the past five years is Alek
Wek, a Sudanese woman. However, while she is frequently featured on magazine covers
and runways, audiences invariably respond to her in different ways than they do white
models. In describing Wek (as well as other African models, such as Iman), the word

2006:1067 Stealing Beauty 1097
To some people, this trend may imply that there is no universal
standard of beauty, because the representations of beauty have recently
been altered to accommodate different cultural variations. On the
surface, this analysis may be correct, but a closer look reveals that, on the
whole, the nonwhite models that become the most successful in society
are those that possess more European features—that is, the features
already prevalent in mass media. 180 Because the media often chooses to
showcase nonwhite models who possess white features, the media
arguably makes the standard of beauty even more uniform.
In sum, this uniformity shows that the media’s conceptualization of
beauty is quite narrow. Given the media’s central location within
modern society, the uniformity suggests that there is a universal idea of
beauty, regardless of whether individual members of society personally
buy into the standard, or are capable of adhering to it. It follows that any
attempts to express this standard of beauty would necessarily be the
same, because the expression of this standard cannot be disconnected
from the idea itself.
“beautiful” is rarely mentioned, replaced instead with the adjective “exotic,” or worse.
See, e.g., Jeryl Brunner et al., Model Homes, IN STYLE, Sept. 2003, at 518 (“Alek Wek
defies convention”) (emphasis added); Michael Astor, Behind the Lens: In a Rio Slum, a
Photographer Beholds Beauty, SAN DIEGO UNION TRIB., June 27, 2003, at E12
(“Modeling agencies are keen for exotic looks from the Third World. . . . Alek
Wek . . . was spotted at a London street fair.”). As a result, while some view Alek Wek
as a refreshing change in complexion of omnipresent runway models, some people
respond to models like Wek with contempt, as though the media is exploiting the beauty
of these women and writing it off as something other than beauty. See, e.g., Black
Beauty’s Many Shades, WASH. POST, May 4, 2001, at C2 (stating that many black
Americans do not find Wek beautiful because she possesses too many “stereotypical”
features that black Americans have been taught to dislike).
179. See Meera Selva, Falling Out of Fashion: Why African Models Are So Last
Year, INDEPENDENT (London), July 14, 2004, at 26-27 (explaining Elite Modeling
Agency’s decision to open an office in Nairobi, Kenya in hopes of finding new talent and
selling it to bigger agencies, only to find that bigger agencies are no longer interested in
such talent because they think they will sell more products with white models, even if
that assumption is false and outdated).
180. Although recent trends have exposed black models with traditionally
African features, three of the most successful nonwhite models in America (Naomi
Campbell, Tyra Banks, and Iman) are known for having traditionally European features.
See Marshall Hood, More Than Skin-Deep, COLUMBUS DISPATCH (Ohio), Feb. 27, 2001,
at 1D; Allison Samuels, Black Beauty’s New Face, NEWSWEEK, Nov. 24, 1997, at 68.
While these articles champion the few models like Alek Wek who go against this trend,
models like Wek are still very much considered the exception rather than the rule.

1098 WISCONSIN LAW REVIEW
B. Stealing Beauty: How the Seventh Circuit’s
Inadequate Consideration of the Merger Doctrine Unfairly Granted
Copyright Protection
Because there is a universal standard of beauty, the standard
constitutes an idea that falls under the ambit of the merger doctrine. By
granting copyright protection to Pivot Point’s mannequins, the Seventh
Circuit granted protection to a naturally occurring idea within society
instead of the expression of an idea. This is exactly the scenario that the
merger doctrine seeks to prevent. However, in this situation, the Seventh
Circuit also needed to clarify the murky doctrine of conceptual
separability, which it deftly accomplished. Despite the validity of the
court’s conceptual separability analysis, the Seventh Circuit improperly
granted copyright protection according to the merger doctrine.
The Seventh Circuit did not expressly apply the merger doctrine.
However, it did determine that the mannequin’s facial features were not
an idea, but were instead a “particularized expression” of that idea. 181 In
making this determination, the Court relied on the Goldberger
decision, 182 which stated that, while an “upturned nose, bow lips, and
wide eyes are the ‘idea’ of a certain type of doll face,” the particularized
expression of that idea is still protected. 183
The Seventh Circuit’s reliance on Goldberger, however, is
misguided for several reasons. Goldberger focuses on doll features, not
features based on naturally occurring human features. 184 On its surface,
this may not seem like a valid distinction, given that both mannequins
and Barbies are essentially just dolls. However, the Pivot Point
mannequins are different from Barbie dolls because, unlike the dolls, the
mannequins are intended to possess the same standard of beauty as 1980s
runway models. 185 On the other hand, the Barbie dolls in Goldberger are
caricatures of the human form 186 that are not intended to accurately
represent any naturally occurring human traits. 187
181. Pivot Point v. Charlene Prods. Inc., 372 F.3d 913, 931 (7th Cir. 2004).
182. Id.
183. Mattel, Inc. v. Goldberger Doll Mfg. Co., 365 F.3d 133, 136 (2d Cir. 2004).
184. See id. at 135.
185. 372 F.3d at 915.
186. The inspiration behind Barbie was not beautiful actresses or models of the
time, but was instead a German sex doll named Lilli (which no doubt explains Barbie’s
unrealistic physical attributes). See Harold Evans, What Drives America’s Great
Innovators, FORTUNE, Oct. 18, 2004, at 83, 84.
187. Indeed, hordes of critics are quick to point out that Barbie’s features are
completely unrealistic, and that, if her size was increased to that of an actual human
being, she would barely be able to walk due to the disproportionate size of her breasts
and her comparatively miniscule feet. See, e.g., Mary Duenwald, One Size Definitely

2006:1067 Stealing Beauty 1099
Because of this distinction, the Seventh Circuit’s assertion that there
are numerous ways to express the “hungry look” of 1980s runway
models is erroneous—to the contrary, because there is a universal idea of
what is beautiful, the best ways to express this beauty are extremely
limited. As a result, accurate expressions of beauty will inevitably be
similar, if not identical. This uniformity leaves no meaningful distinction
between the expression of an idea and the idea itself, and therefore places
Pivot Point’s mannequins under the merger doctrine—not under the
holding of Goldberger.
The counter to this argument, of course, is that, despite the existence
of a universal standard of beauty, even runway models have sufficiently
unique faces to avoid being utter clones of one another—indeed, this is
precisely the argument that the Seventh Circuit embraced by including
Goldberger in its analysis. 188 While the general appearance of runway
models may be the same, one model’s nose may be bigger than
another’s, or one model’s eyes further apart than another’s. 189 Because
of these differences, one may argue that a mannequin implementing
these disparate features is distinct enough to be copyrightable. 190
In the context of the merger doctrine, however, the potential
expressions of an idea need only be substantially similar for courts to
deny copyright protection. 191 It follows that a mannequin with slight
variations of physical features will still be substantially similar.
Alternatively, if the mannequin’s features deviated too much from the
general look of runway models, the mannequin would no longer possess
the requisite beauty needed to successfully sell. It follows, then, that
only a slight number of expressions would accurately emulate the
standard of beauty found in runway models, which would still place such
mannequins under the merger doctrine.
CONCLUSION
Pivot Point illustrates how two seemingly consistent copyright
doctrines—the doctrine of conceptual separability and the merger
doctrine—seriously conflict in the context of copyrighting the facial
features of mannequins based on a universal standard of beauty. The
Does Not Fit All, N.Y. TIMES, June 22, 2003, § 15, at 1; Susan Thomson, Class Project
Determines That Real-Life Barbie Would Be a Freak, ST. LOUIS POST-DISPATCH, Apr. 16,
2001, at D1. This suggests that Barbie was never intended to possess the same standard
of beauty as the mannequins in Pivot Point.
188. See Pivot Point, 372 F.3d at 931-32.
189. See id. at 931.
190. See id.
191. See Sativa v. Lowry, 323 F.3d 805, 812 & n.5 (9th Cir. 2003).

1100 WISCONSIN LAW REVIEW
Seventh Circuit granted Pivot Point copyright protection based almost
exclusively upon its interpretation of the doctrine of conceptual
separability. 192 Because the mannequins did not require their specific
facial features to serve their functional purpose, the court reasoned that
the facial features were the product of the independent creative vision of
Pivot Point’s artist, independent of functional concerns. 193
Because the features Pivot Point used were characteristics that
society as a whole deems beautiful, the court should have also applied
the merger doctrine. Had it done so, the Court would have determined
that, despite the fact that the facial features were conceptually separable
from the mannequin as a useful article, the features were nonetheless
incapable of being copyrighted because their expression and the idea
behind that expression are indistinguishable. By failing to make this
distinction, Pivot Point could have seriously negative ramifications, as it
could allow a plaintiff to copyright a universal standard of beauty merely
by getting to it first.
Despite this potentially negative consequence, the Seventh Circuit
did not necessarily reach the wrong decision. The facts clearly showed
that Charlene stole Pivot Point’s design. 194 Had there been evidence that
the defendant attempted but failed to create a mannequin that emulated a
similar “hungry look” because the design so closely resembled the
plaintiff’s design, then the Seventh Circuit’s decision would be erroneous
because the court would have needed to analyze the case by applying the
merger doctrine. 195 But plaintiffs failed to produce such evidence. 196
Because the defendant’s mannequin undoubtedly copied Pivot Point’s
design, policy reasons suggest that the Seventh Circuit decision was
indeed the correct one. 197 Indeed, it would be very hard to justify
192. See 372 F.3d at 931.
193. Id. at 931-32.
194. In addition to possessing identical facial features, Charlene’s mannequin
also exhibited the double hairline that the earliest versions of Pivot Point’s mannequins
had. Id. at 916. This fact is particularly illustrative that Charlene copied Pivot Point’s
design because Charlene’s founder, Mr. Yau, had previously worked for Pivot Point. Id.
at 916 n.2.
195. This conclusion is based on the assumption that the merger doctrine, which
declines the protection of expressions of ideas whenever the idea and the expression are
essentially the same, would have applied.
196. In fact, it is probably safe to assume that the only reason Charlene was
interested in Pivot Point’s design was that it had proved very successful on the
cosmetology market. See id. at 915.
197. The bulk of intellectual property law is designed to encourage creativity and
industry. See, e.g., White v. Samsung Elecs. Am., Inc., 989 F.2d 1512, 1516 (Kozinski,
J., dissenting) (“[Intellectual property laws] are necessary to maintain a free environment
in which creative genius can flourish.”). Not granting copyright protection in Pivot Point
would have created a situation in which Pivot Point’s creativity was penalized, because

2006:1067 Stealing Beauty 1101
rewarding Charlene for selfishly stealing the design that Pivot Point
worked so hard to produce. 198 Moreover, the Seventh Circuit’s
clarification of the muddy doctrine of conceptual separability is both
welcome and necessary.
But while the facts of Pivot Point may have necessitated the
Seventh Circuit’s decision to grant copyright protection, it is what the
Seventh Circuit did not consider that makes the case so dangerous.
Whether or not we put stock into what the media says is beautiful, the
media implies that there is a universal standard of beauty that is uniform
and finite. The standard is something that we as a society own and have
a right to use to express ourselves. By not recognizing that this standard
is uniform, the Seventh Circuit gave Pivot Point too much credit for
being “original,” and essentially allowed Pivot Point to copyright
society’s idea of beauty. Ironically, then, it might just be that it was
Pivot Point, and not the defendant copyright infringer, that attempted—
and got away with—stealing beauty.
Charlene would have been able to take Pivot Point’s design without exerting an ounce of
effort.
198. That said, some judges contend that it is not their place to end flagrant
copying if existing copyright law does not grant sufficient copyright protection. See, e.g.,
Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989, 994 (2d Cir. 1980).
(Weinstein, J., dissenting) (“All of us are offended by the flagrant copying of another’s
work. This is regrettable, but it is not for this court to twist the law in order to achieve a
result Congress has denied.”). So if the Mara mannequin is outside of the scope of
copyright protection because it embodies an idea rather than the expression of an idea,
this statement suggests that it is not within the province of the Seventh Circuit to
ameliorate the problem.