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

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).