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

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