Readers
of this blog may remember that artist Cady Noland filed a copyright
infringement suit last year, claiming that, by reconstructing one of her wooden
sculptures which had been damaged, a museum had thus infringed her copyright by
reproducing her work and had also violated her moral rights, as provided to her
by the Visual Artists Rights Act and Section 14.03 of
the New York Arts & Cultural Affairs Law.
Cady Noland had created in 1990 her “Log Cabin Blank With Screw Eyes and Cafe
Door” (the Work), made out of wooden logs. It represents the façade of a
log cabin, with one open door and two windows, and “[t]wo U.S. flags are an
integral part of the sculpture,” according to the July 2017 complaint.
The work was created to be displayed outdoors, and after years exposed to the
sun and cold of Berlin, the wood used to create the Work had rotted.
Cady Nolan asserted in the 2017 complaint
that she "has continuously owned the
copyright to the Work. An application
for registration of the copyright to Log Cabin together with the required fee
and deposit material was transmitted to the Copyright Office in proper form and
registration was refused. Plaintiff has complied with the requirements
for registration of Log Cabin as provided in 17 U.S.C. § 411(a), and in accordance with said section will be serving notice and a copy
of this Complaint on the Register of Copyrights” (my emphasis).
Indeed, the artist had filed an application
to register the Work as a sculpture in July 2017, but this was denied the same
month, because the work “lacks the
authorship necessary to support a copyright claims” and because it “is a useful article… that … does not contain
any non-useful design element that could be copyrighted and registered.”
The following month, Noland requested the Review
Board to reconsider this decision and to register her work. This time, the
Copyright Office considered the work to be a sculpture and not a useful article
(indeed, what exactly is the use of a single log wall?), but refused to
register it anyway, as it did “not
contain a sufficient amount of creativity either elementally or as a whole to
warrant registration.”
In December 2017, Noland requested the Review
Board of the United States Copyright Office (the Board) to reconsider the
Registration Program's refusal to register her work a second and final time,
claiming that the work was original enough to be protected by copyright, and arguing
she had made creative choices in order for the work to embody her idea to “construct the front of a house… to showcase
the failed promise of the American dream” and that “the selection, arrangement, and combination of elements present in [the]
work clearly meet the threshold of creativity required for a work to obtain
copyright protection.”
On May 25, 2018, the Board affirmed
the Copyright Registration Program’s denial to register Cady Nolan’s Log Cabin.
Defendant in the copyright infringement
suit filed a motion to dismiss last April and this month Nolan filed an
opposition to the motion. Plaintiff in a copyright infringement suit must prove
ownership of a valid copyright, and thus the Board denial of copyright
registration is likely to influence the outcome of the current lawsuit.
Why
is Log Cabin not original enough to be protected by copyright?
A work needs to be original to be protected
by copyright. The Copyright Act does not define what is “originality,” but the
Supreme Court defined it in Feist as “mean[ing] only that the work was independently created
by the author (as opposed to copied from other works), and that it possesses at
least some minimal degree of creativity.” The Board quoted Feist, and also Section
906.1 of the Compendium on “uncopyrightable
material,” which explains that “[t]he Copyright Act does not protect common
geometric shapes, either in two-dimensional or three-dimensional form.”
Such shapes must be combined “in a
distinct manner indicating ingenuity” (Atari Games Corp at 883). Indeed,
while geometric shapes cannot be protected by copyright, their creative
arrangement, if original, can be protected.
The Board analyzed Noland’s Work and found
that it “does not contain a sufficient
amount of original and creative artistic or graphic authorship to sustain a
claim in copyright. The Work is a simple representation of a standard log cabin
façade with joinery; thus any authorship is de minimis and does not support
registration. “
Nolan had argued that, while some of its
elements are found in architectural work, it is a sculpture. The Board
recognized that argument, and agreed that the work is a sculpture. It added,
however, that the Work “is a simple
expression of rote designs and representations of a log cabin; the fact that it
is not functional or useful is irrelevant to that analysis” and concluded
that “[t]he Work thus is a standard representation of a log cabin façade, which
does not meet the minimum degree of creativity required for copyright
protection.”
Conceptual
art and copyright
Copyright and conceptual art have a somewhat
difficult relationship and rooted in the necessity to prove their originality
and fixation in a tangible medium of expression.
Wildflower
Work is such conceptual work of art which has been
denied copyright protection. It was a flower garden designed by Chapman Kelley
and planted in the eighties in Chicago’s Grant Park In Kelley v. Chicago Park District, the
Seventh Circuit found that Wildflower
Work was original enough to be protected by copyright, but could not be
protected because it “lack[ed] the kind of authorship and stable fixation
normally required to support copyright.”
The Seventh Circuit explained that:
“recognizing copyright in Wildflower Works
presses too hard on these basic principles. We fully accept that the artistic
community might classify Kelley's garden as a work of postmodern conceptual
art. We acknowledge as well that copyright's prerequisites of authorship and
fixation are broadly defined. But the law must have some limits; not all
conceptual art may be copyrighted.”… A
garden's constituent elements are alive and inherently changeable, not fixed.
Most of what we see and experience in a garden — the colors, shapes, textures,
and scents of the plants — originates in nature, not in the mind of the
gardener.”
The district court in Kelley had found the work to be uncopyrightable for lack of
originality because its design used simple elliptical shapes. However, the Seventh
Circuit found this argument to be “misplaced,”
explaining that “an author's expressive
combination or arrangement of otherwise noncopyrightable elements (like
geometric shapes) may satisfy the originality requirement.”
In our case, the Board cited Satava v. Lowry, a Ninth Circuit
case which explained that “a combination of unprotectable elements is
eligible for copyright protection only if those elements are numerous enough
and their selection and arrangement original enough that their combination
constitutes an original work of authorship.”
Cady Nolan is not yet out of the woods
(sorry).
Image is courtesy of Flickr user Thomas Hawk under a CC BY-NC 2.0 license.
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