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

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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.
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