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

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,