Wednesday, 15 August 2018

Copyright’s Conceptual Cabin Fever

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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