Tomorrow morning I will appear before the United States Court of Appeals for the Second Circuit, which will hear argument in Ochre LLC v. Deutsche Bank, a copyright case.
As usual, I won’t comment substantively about a pending matter — at least not beyond the very general questions I raised in this post — but will quote from the brief’s preliminary statement:
In Chosun Int’l, Inc. v. Chrisha Creations, Ltd., 413 F.3d 324, 328 (2d Cir. 2005), this Court held that “one may not copyright the general shape of a lamp.” This appeal raises the question of whether the “general shape of a lamp” prohibition has evolved into a per se rule that a lighting fixture, regardless of how it is configured and without regard for its aesthetic properties or value, can never be afforded copyright protection. Plaintiff-appellant Ochre, LLC (“Ochre”) submits that the law has not, and should not, evolve to that point.
A number of recent cases decided by this Court suggest that the rule of Brandir Int’l, Inc. v. Cascade Pac. Lumber Co., 834 F.2d 1142, 1147 (2d Cir. 1987), in which the Court ruled that “a copyrighted work of art does not lose its protected status merely because it subsequently is put to a functional use,” has been eviscerated to the point of having been overruled sub silentio. This case presents an ideal opportunity for this Court to demonstrate that under the right circumstances, a creator of lighting designs can meet the elevated standards of the Copyright Act for protection of useful articles under the minimal standards for stating a cause of action of infringement under Fed. R. Civ. P. 12(b)(6).
There are two reasons this is that case. One is that the “useful article” involved, and for which copyright protection was denied by the district court – plaintiff-appellant Ochre, LLC’s celebrated “Arctic Pear” lighting design – is highly unusual for its widely-acclaimed aesthetic qualities, entirely separate and apart from its ability to provide illumination. The second reason is that the facts describing the respects in which the Arctic Pear fixtures embody protectable, aesthetic components that are clearly separable from the object’s utilitarian ones have been pleaded explicitly, precisely and plausibly, in plaintiff’s Second Amended Complaint (“Complaint”).
The district court nonetheless dismissed the Complaint because it applied an incorrect legal standard, requiring not only that a lighting fixture’s separable aesthetic features be pled explicitly but holding that such allegations are of no legal significance if those features have any role, even a non-exclusive or incidental one, connected or “related to” illumination under any circumstances. This is contrary to the rule of Brandir. Additionally, the district court erred by overlooking allegations in the complaint that, if properly considered, would have met the legal standard it enunciated anyway.
The second ground of dismissal by the district court, at least with respect to all but one defendant in this infringement case, was improper “lumping” of claims against the respective defendants. The district court erred in applying this doctrine, normally reserved for causes of action sounding in fraud or complex transactions in which the respective parties cannot tell from the pleadings what they are being accused of. Here the relationships were straightforward and well defined. The facts concern a narrowly defined scope of time and a series of transactions with which all the defendants are familiar. Moreover, under the pleadings standards for both direct and secondary copyright infringement (both vicarious and contributory), the court’s lumping determination was inappropriate considering the general rule of joint and several liability for copyright infringement and the minimal requirements of Fed. R. Civ. P. 12(b)(6).
Every time I looked at that photo I wondered why there’s a shoe in the background, but now, finally, I realize that it’s actually just a chair that looks like a shoe. Which is probably some sort of copyright infringement itself.
Well, it’s more than passing funny that you should say that, and here’s why.
I cannot say I had the better of it yesterday morning, though I hope I got something across for the judges to ponder on one critical point: Ochre’s complaint should not have been dismissed under Rule 12(b)(6) because the reported cases consistently say that the question of conceptual separability is a fact question.
So I did my thing, tried to get my point across, and then the very able Philippe Zimmerman from Moses & Singer stood up and did the work of arguing for affirmance on behalf of the half dozen guys on his side, all sitting at the table. But one fellow, who I won’t name, gets up and wants to make a new point that I didn’t recall arising below (it didn’t): He says, Your Honors, there is also a constitutional question here on the issue of copyrightability, and that is the question of originality. How so?
This is the part that segues with your comment!: In the main, he continues, Ochre’s originality claim hinges on the pear shape of the lamps in the chandeliers. (Not entirely accurate, but keep reading.) Well, he says, that’s not original! That’s naturally found in nature!
All of a sudden everyone starts. We’re all thinking the same thing… and thank God, one of the Circuit Judges arches her eyebrows, then narrows her eyes and leans down and says — right on the nose: “Glass pears are naturally found in nature?”
He clarified his remark. Though it did make me think of this from my college DJ days:
Note that far be it from me to tease anyone in light of the appalled state I achieved when reading my brief as I prepared for this oral argument. The proofreading was execrable, and while I place some blame on an appellate printer not to be named here, obviously the responsibility for the state of the papers is mine. Ouch.