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Ninth Circuit:
Moveable Sculptures May Be ‘Fixed’ Enough to Entitle Them to Protection of Copyright Act
Opinion Says Plaintiff’s Art, Made up of 18 Identical, Connected, Tubular, Twistable Segments, Contains Protectable Expression Even Though Objects May Take on Different Shapes
By a MetNews Staff Writer
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In this undated photo, the store front of Aritzia is shown with a window display.
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The Ninth U.S. Circuit Court of Appeals yesterday revived a copyright infringement claim by the maker of kinetic sculptures—consisting of 18 identical, connected, tubular segments that can be twisted into many different poses—against a retailer that displayed figures in its windows that the plaintiff complains are essentially larger reproductions of their copyrighted works.
At issue is whether the manipulable sculptures are “fixed” enough to qualify for protection under Copyright Act, codified at 17 U.S.C. §101 et. seq. Sec. 102 provides that “[c]opyright protection subsists…in original works of authorship fixed in any tangible medium of expression…from which they can be perceived, reproduced, or otherwise communicated.”
In an opinion authored by District Court Judge Michael H. Simon of the District of Oregon, sitting by designation, and joined in by Circuit Judges Lucy H. Koh and Anthony D. Johnstone, the court found that the art qualifies for protection. Likening the moveable sculptures to dance, movies, and music, Simon wrote:
“A motion picture ‘moves’ from frame to frame, as does a symphony, from note to note, yet both can be protected under copyright law. Light and sound, of course, are intangible, so movies and symphonies must be reduced to the print of a film or score to achieve sufficient fixation ‘in a tangible medium.’ But that does not detract from the fact that the core, copyrightable expression of such works involves motion. Also, we are unaware of any appellate case holding that expression involving motion, like a moveable sculpture, per se cannot be afforded copyright protection because it is not ‘fixed.’ ”
Seeking enforcement of the act’s protections is Tangle Inc., a company holding copyright registrations for nine kinetic, chrome sculptures. The company sells replicas of its sculptures at authorized dealers and toy versions, which are typically sold in a pink chrome finish, are also available for purchase.
The company has not registered the toy pieces for copyright protection.
In 2023, Tangle filed a complaint against Aritzia Inc., Aritzia LP, and United States of Aritzia Inc., the owner and operator of approximately 121 upscale retail stores in the U.S. and Canada that sell lifestyle apparel.
Earlier that year, Aritzia decorated its store windows with large, pink metallic sculptures made up of 18 identical, connected, tubular segments that can be twisted and turned where any two pieces connect.
In its operative complaint, Tangible asserts a copyright infringement claim under 17 U.S.C. §501 and a trade dress claim under 15 U.S.C. § 1125(a).
District Court’s View
Senior District Court Judge Jeffrey S. White of the Northern District of California dismissed, with leave to amend, the plaintiff’s original complaint and two subsequent amended pleadings for failure to state a claim. In the order dismissing the second amended complaint, White wrote:
“Tangle attached copyright registrations for nine works to its [operative complaint] and alleged that all of Aritzia’s displays infringed all nine works. At oral argument, Tangle stated, ‘if you have the 17 or 18 interlocking segments of the same size, then any configuration of them, provided that…the embodiment can be manipulated along the same axes, yes,…it will be infringing.’ Tangle…argued the ‘core expression’ was the original three-dimensional sculpture and that the other registered sculptures were derivative works.
“Tangle’s theory is as pliable as its product….
“The Court…rejects Tangle’s sweeping argument that any configuration of 17 or 18 interlocking segments of the same size and manipulable along the same axes would infringe Tangle’s copyrights. Only works that are ‘fixed’ are subject to copyright protection.”
All claims were subsequently dismissed with prejudice after Tangle filed a Notice of Intent Not to Amend.
Yesterday’s opinion reverses the dismissal as to the copyright infringement claim but not as to the trade dress cause of action.
Limitations to Protection
Simon noted that, in addition to the language requiring a “fixed…expression,” §102 concludes with the limitation that “[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”
Aritzia argues, based on §102’s two limitations, that Tangle’s registered copyrights for its sculptures are only valid to the extent that they seek protection for specific poses and do not govern the works’ full range of motion.
Unpersuaded, the jurist wrote:
“Contrary to Aritzia’s assertions, the fact that Tangle’s works move into various poses does not, by itself, support the conclusion that they are not ‘fixed’ for copyright purposes….
“Like dance, movies, and music, a moveable sculpture like Tangle’s is sufficiently ‘fixed’ to be entitled to copyright protection, even when its pose changes.”
He cited the definitions section of the Copyright Act, found at §101, which provides that “[a] work is ‘fixed’ in a tangible medium of expression when its embodiment in a copy…is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” The term “copies” is, in turn, defined as “material objects…in which a work is fixed.”
Applying these definitions, he opined:
“Here, Tangle’s sculptures are material objects, so they qualify as ‘copies.’ In addition, those material objects can be ‘perceived’ and ‘reproduced’ for more than a ‘transitory’ period….As embodied in the sculptures, Tangle’s expression therefore is ‘ “fixed” in a tangible medium,’ even though the sculpture may take different poses. Tangle’s registered copyrights are thus valid and protect its works across their full range of motion.”
Alleged Infringement
Turning to whether Aritzia is in violation of the Copyright Act, Simon pointed out that infringement has two requirements—”copying” and “unlawful appropriation.” He said that “Aritzia does not dispute that Tangle has adequately alleged copying of its copyrighted sculptures.”
As to unlawful appropriation, he said that, at the pleading stage, courts apply only an “extrinsic test” to determine whether the allegedly infringing work and the copyrighted expression share substantial similarities, focusing on the protectable aspects of the expression.
Saying that the court must first determine what constitutes “protectable elements,” he remarked:
“Here, the individual elements of Tangle’s sculptures—the number of segments, the uniformity of those segments, their exact shape and proportions, the end-to-end connection of the segments in a closed loop, and their connection via joints that allow the segments to be turned 360 degrees—may be unprotected ‘when viewed in isolation.’….That original ‘combination’ of the number, uniformity, shape, proportion, and mode of connection of the segments is what ‘receives protection, not any of the individual elements standing alone.’
He added:
“Further, Tangle’s particular arrangement of those elements enjoys ‘broad’ copyright protection because a ‘wide range of possible expression’ can result from different choices about the number, shape, and proportions of segments used in a sculptural work, whether to make the segments uniform, and how to connect them…..Thus, to establish that Aritzia unlawfully appropriated Tangle’s protected expression, Tangle need only show that Aritzia’s allegedly infringing sculptures are ‘substantially similar’ to Tangle’s copyrighted works.”
Plausible Allegations
Applying this framework, he declared:
“We hold that Tangle ‘has plausibly alleged that the creative choices [it] made in selecting and arranging elements of [the protected works]…are substantially similar to the choices [Aritzia] made in creating’ its sculptures….Tangle has alleged that Aritzia’s sculptures, just like Tangle’s, are made from 18 identical, connected, 90-degree curved tubular segments…that can be twisted or turned 360 degrees where any two segments connect, allowing the sculpture to be manipulated to create many different poses. That is enough to allow Tangle’s copyright claim to proceed past the pleading stage.”
He agreed with White that the operative complaint failed to adequately plead the trade dress infringement claim with the required specificity.
The case is Tangle Inc. v. Aritzia Inc., 23-3707.
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