Carol Barnhart Inc. v. Economy Cover Corporation

773 F.2d 411, 228 U.S.P.Q. (BNA) 385, 1985 U.S. App. LEXIS 23198

• Court: Court of Appeals for the Second Circuit
• Decided: September 12, 1985
• Docket: 1295, Docket 84-7867
• Status: Published

Opinions

MANSFIELD, Circuit Judge:

Carol Barnhart Inc. (“Barnhart”), which sells display forms to department stores, distributors, and small retail stores, appeals from a judgment of the Eastern District. of New York, Leonard D. Wexler, Judge, granting a motion for summary judgment made by defendant Economy Cover Corporation (“Economy”), which sells a wide variety of display products primarily to jobbers and distributors. Barnhart’s complaint alleges that Economy has infringed its copyright and engaged in unfair competition by offering for sale display forms copied from four original “sculptural forms” to which Barnhart holds the copyright. Judge Wexler granted Economy’s motion for summary judgment on the ground that plaintiff’s mannequins of partial human torsos used to display articles of clothing are utilitarian articles not containing separable works of art, and thus are not copyrightable. We affirm.

The bones of contention are four human torso forms designed by Barnhart, each of which is life-size, without neck, arms, or a back, and made of expandable white styrene. Plaintiff’s president created the forms in 1982 by using clay, buttons, and fabric to develop an initial mold, which she then used to build an aluminum mold into which the poly-styrene is poured to manufacture the sculptural display form. There are two male and two female upper torsos. One each of the male and female torsos is unclad for the purpose of displaying shirts and sweaters, while the other two are sculpted with shirts for displaying sweaters and'jackets. All the forms, which are otherwise life-like and anatomically accurate, have hollow backs designed to hold excess fabric when the garment is fitted onto the form. Barnhart’s advertising stresses the forms’ uses to display items such as sweaters, blouses, and dress shirts, and states that they come “[pjackaged in UPS-size boxes for easy shipping and [are] sold in multiples of twelve.”

Plaintiff created the first of the forms, Men’s Shirt, shortly after its founding in March, 1982, and by the end of July it had attracted $18,000 worth of orders. By December 1982, plaintiff had designed all four forms, and during the first morning of the twice-yearly trade show sponsored by the National Association of the Display Industry (“NADI”), customers had placed $35,-000 in orders for the forms. Plaintiff’s president maintains that the favorable response from visual merchandisers, Barn-hart’s primary customers, “convinced me that my forms were being purchased not only for their function but for their artistically sculptured features.”

Economy, which sells its wide range of products primarily to jobbers, distributors, and national chain stores, not to retail stores, first learned in early 1983 that Barnhart was selling its display forms directly to retailers. After observing that no copyright notice appeared either on Barn-hart’s forms or in its promotional literature, Economy contracted to have produced for it four forms which it has conceded, for purposes of its summary judgment motion, were “copied from Barnhart’s display forms” and are “substantially similar to Barnhart’s display forms.” Economy began marketing its product, “Easy Pin Shell Forms,” in September 1983. Later in the same month, Barnhart wrote to NADI to complain that Economy was selling exact duplicates of Barnhart’s sculptural forms at a lower price and asked it to stop the duplication and underselling. Economy responded with a letter from its counsel dated October 17, 1983 to the Chairman of NADI’s Ethics Committee stating that Economy was not guilty of any “underhanded” business practices since Barn-hart’s forms were not protected by “patent, copyright, trademark, or otherwise.”

On the same date (October 17, 1983) Barnhart applied for copyright registration for a number of products, including the four forms at issue here. It identified each of the forms as “sculpture” and sought expedited examination of its applications because of the possibility of litigation over copyright infringement. Copyright registration was granted the same day. Then, on October 18, Barnhart informed Economy that its Easy Pin Shell Forms violated Barnhart’s rights and demanded that it discontinue its advertising and sale of the forms. In November 1983, more than 18 months after selling its first form, Barn-hart advised its customers that copyright notice had “inadvertently [been] omitted” from the display forms previously distributed and enclosed adhesive stickers bearing a copyright notice, which it asked the customers to affix to unmarked products in inventory.

Barnhart filed this suit in December 1983. Count I charges Economy with violating Barnhart’s rights under, the Copyright Act, 17 U.S.C. §§ 101-810 (1982), by copying and selling Barnhart’s four display forms. Count II alleges that Economy has engaged in unfair competition under the common law of the State of New York. The complaint seeks an adjudication that Economy has infringed Barnhart’s copyrights, a preliminary and permanent injunction against Economy’s producing, advertising, or selling its forms, damages (consequential, statutory, and punitive), and attorney’s fees. Economy moved for summary judgment on the issue of the copyright-ability of Barnhart’s display forms (and the issue of statutory damages and attorney’s fees).

After a hearing on February 3, 1984, Judge Wexler issued an order and opinion on September 12, 1984 granting defendant’s motion for summary judgment on the issue of copyrightability. 594 F.Supp. 364 (E.D.N.Y.1984). The district court rejected plaintiff’s arguments that the issue of copyrightability was an improper subject for summary judgment and that the Copyright Office’s issuance of certificates of registration for Barnhart’s four forms created an insurmountable presumption of the validity of the copyrights. On the central issue of copyrightability, it reviewed the statutory language, legislative history, and recent case authority, concluding that they all speak with “a single voice,” i.e., that a useful article may be copyrighted only to the extent that “there is a physically or conceptually separable work of art embellishing it....” Id. at 370. Applying this test, the district court determined that since the Barnhart forms possessed no aesthetic features that could exist, either physically or conceptually, separate from the forms as utilitarian articles, they were not copyrightable.

On March 6, 1985, 603 F.Supp. 432, Judge Wexler denied Barnhart’s motion for reargument. The present appeal followed.

Discussion

Appellant’s threshold argument, that the district court erred in ignoring the statutory presumption of validity accorded to a certificate of copyright registration and to the line-drawing expertise of the Copyright Office, can be disposed of briefly. With respect to the prima facie validity of Copyright Office determinations, 17 U.S.C. § 410(c) states:

“In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court.”

However, “a certificate of registration creates no irrebuttable presumption of copyright validity.” Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905, 908 (2d Cir.1980). Extending a presumption of validity to a certificate of copyright registration

“merely orders the burdens of proof. The plaintiff should not ordinarily be forced in the first instance to prove all of the multitude of facts that underline the validity of the copyright unless the defendant, by effectively challenging them, shifts the burden of doing so to the plaintiff.”

H.Rep. No. 1476, 94th Cong., 2d Sess. 157, reprinted in 1976 U.S.Code Cong. & Ad. News 5659, 5773. See also Oboler v. Gol-din, 714 F.2d 211, 212 (2d Cir.1983); 3 M. Nimmer, Nimmer on Copyright § 12.11[B], at 12-79 to 12-80 (1985).

Judge Wexler properly exercised the discretion conferred on him by 17 U.S.C. § 410(c). Once defendant’s response to plaintiff’s claim put in issue whether the four Barnhart forms were copyrightable, he correctly reasoned that the “mute testimony” of the forms put him in as good a position as the Copyright Office to decide the issue. While the expertise of the Copyright Office is in “interpretation of the law and its application to the facts presented by the copyright application,” Norris Industries, Inc. v. I.T. & T., 696 F.2d 918, 922 (11th Cir.), cert. denied, — U.S. -, 104 S.Ct. 78, 78 L.Ed.2d 89 (1983), it is permissible for the district court itsélf to consider how the copyright law applies to the articles under consideration.¹

Since the four Barnhart forms are con-cededly useful articles, the crucial issue in determining their copyrightability is whether they possess artistic or aesthetic features that are physically or conceptually separable from their utilitarian dimension. A “useful article” is defined in 17 U.S.C. § 101 as “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” Although 17 U.S.C. § 102(a)(5) extends copyright protection to “pictorial, graphic, and sculptural works,” the definition of “pictorial, graphic, and sculptural works,” at 17 U.S.C. § 101, provides that the design of a useful article

“shall be considered a pictorial, graphic, or sculptural work only if, and only, to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”

To interpret the scope and applicability of this language, and the extent to which it may protect useful articles such as the four Barnhart forms, we must turn to the legislative history of the 1976 Copyright Act, which is informative.

Congress, acting under the authority of Art. I, § 8, cl. 8 of the Constitution, extended copyright protection to three-dimensional works of art in the Copyright Act of 1870, which defined copyrightable subject .matter as:

“any book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts____” Act. of July 8, 1870, ch. 230,

§ 86, 16 Stat. 198, 212 (repealed 1916). The Supreme Court upheld an expansive reading of “authors” and “writings” in Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 60, 4 S.Ct. 279, 282, 28 L.Ed. 349 (1884), rejecting the claim that Congress lacked the constitutional authority to extend copyright protection to photographs and negatives thereof. The Court further contributed to the liberalization of copyright law in Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 23 S.Ct. 298, 47 L.Ed. 460 (1903) (Holmes, J.), in which it held that chromo-lithographs used on a circus poster were not barred from protection under the copyright laws. In Bleistein, Justice Holmes stated his famous “anti-discrimination” principle:

“It would be a dangerous undertaking for persons trained only to the law to constitute themselves final, judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge.” Id. at 251-52, 23 S.Ct. at 300-01.

The Copyright Act of 1909 expanded the scope of the copyright statute to protect not only traditional fine arts, but also “[wjorks of art; models or designs for works of art.” Copyright Act of 1909, ch. 320, § 5(g), 35 Stat. 1075, 1077 (codified at 17 U.S.C. §§ 1-216 (1976)), reprinted in 4 M. Nimmer, supra, App. 6, at 6-5. However, this language was narrowly interpreted by Copyright Office regulations issued in 1910, which stated in part:

“Works of art. —This term includes all works belonging fairly to the so-called fine arts. (Paintings, drawings, and sculpture).

“Productions of the industrial arts utilitarian in purpose and character are not subject to copyright registration, even if artistically made or ornamented." Copyright Office, Rules and Regulations for the Registration of Claims to Copyright, Bulletin No. 15 (1910), 8; reprinted in Mazer v. Stein, 347 U.S. 201, 212 n. 23, 74 S.Ct. 460, 467 n. 23, 98 L.Ed. 630 (1954).

The prospects for a work of applied art obtaining a copyright were enhanced in December 1948, when the Copyright Office changed the definition of a “work of art” in its Regulation § 202.8:

“Works of art (Class G) — (a) In General This class includes works of artistic craftsmanship, in so far as their form but not their mechanical or utilitarian aspects are concerned, such as artistic jewelry, enamels, glassware, and tapestries, as well as all works belonging to the fine arts, such as paintings, drawings and sculpture.” 37 C.F.R. § 202.8 (1949), reprinted in Mazer v. Stein, supra, 347 U.S. at 212-13, 74 S.Ct. at 467-68.

While this regulation seemed to expand coverage for works of applied art, it did not explicitly extend copyright protection to industrial design objects.

The next significant historical step was taken not by Congress but by the Supreme Court in its 1954 decision in Mazer v. Stein, supra, where it upheld § 202.8 as a proper standard for determining when a work of applied art is entitled to copyright protection, in the context of deciding whether lamps which used statuettes of male and female dancing figures made of semivitreous china as bases were copyrightable. The narrow question faced was whether the addition of the lamp attachments deprived the statuettes of the copyright protection to which they were separately entitled. The Court answered that question in the negative, holding that an ornamental design does not necessarily cease to be artistic when embodied in a useful article and may therefore be entitled to copyright protection. Id. at 214, 74 S.Ct. at 468.

The Copyright Office implemented Mazer v. Stein by promulgating new regulations interpreting § 5(g) of the 1909 Act, which stated in part:

“(c) If the sole intrinsic function of an article is its utility, the fact that the article is unique and attractively shaped will not qualify it as a work of art. However, if the shape of a utilitarian article incorporates features, such as artistic sculpture, carving, or pictorial representation, which can be Mentified separately and are capable m. existing independently as a work of art, such features will be eligible for registration.” 37 C.F.R. § 202.10(c) ((1959), as amended June 18, 1959) (revoked 1978), reprinted in 4 M. Nimmer, supra, App. 11, at 11-13, to 11-14 (1985).

In an effort to provide some form of protection to “three-dimensional designs of utilitarian articles as such,” a number of separate design bills were introduced into Congress. See, e.g., H.R. 8873 (Willis Bill), 85th Cong., 1st Sess. July 23, 1957, and S. 2075 (O’Mahoney-Wiley-Hart Bill), 86th Cong., 1st Sess. May 28, 1959. Finally, Title II of a bill passed by the Senate in 1975, S.22 (The Design Protection Act of 1975), proposed to offer legal protection to the creators of ornamental designs of useful articles.² It defined “pictorial, graphic, and sculptural works” to “include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, plans, diagrams, and models.”

The House, however, responded by passing a strikingly different version. To.the text passed by the Senate it added the following:

“Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”

Both of the added clauses were from work of the Copyright Office: the first from its 1948 Regulation § 202.8, approved by the Supreme Court in Mazer v. Stein; the second from its post-Mazer § 202.10(c).³ The bill as finally enacted omitted entirely the proposed Title II.⁴

The legislative history thus confirms that, while copyright protection has increasingly been extended to cover articles having a utilitarian dimension, Congress has explicitly refused copyright protection for works of applied art or industrial design which have aesthetic or artistic features that cannot be identified separately from the useful article. Such works are not copyrightable regardless of the fact that they may be “aesthetically satisfying and valuable.” H.R.Rep. No. 1476, supra, at 55, 1976 U.S.Code Cong. & Ad.News at 5668.

Applying these principles, we are persuaded that since the aesthetic and artistic features of the Barnhart forms are inseparable from the forms’ use as utilitarian articles the forms are not copyrightable. Appellant emphasizes that clay sculpting, often used in traditional sculpture, was used in making the molds for the forms. It also stresses that the forms have been responded to as sculptural forms, and have been used for purposes other than modeling clothes, e.g., as decorating props and signs without any clothing or accessories. While this may indicate that the forms are “aesthetically satisfying and valuable,” it is insufficient to show that the forms possess aesthetic or artistic features that are physically or conceptually separable from the forms’ use as utilitarian objects to display clothes. On the contrary, to the extent the forms possess aesthetically pleasing features, even when these features are considered in the aggregate, they cannot be conceptualized as existing independently of their utilitarian function.

Appellant seeks to rebut this conclusion by arguing that the four forms represent a concrete expression of a particular idea, e.g., the idea of a woman’s blouse, and that the form involved, a human torso, is traditionally copyrightable. Appellant suggests that since the Barnhart forms fall within the traditional category of sculpture of the human body, they should be subjected to a lower level of scrutiny in determining its copyrightability. We disagree. We find no support in the statutory language or legislative history for the claim that merely because a utilitarian article falls within a traditional art form it is entitled to a lower level of scrutiny in determining its copy-rightability. Recognition of such a claim would in any event conflict with the anti-discrimination principle Justice Holmes enunciated in Bleistein v. Donaldson Lithographing Co., supra, 188 U.S. at 251-52, 23 S.Ct. at 300.

Nor do we agree that copyrightability here is dictated by our decision in Kiesel-stein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989 (2d Cir.1980), a case we described as ■ being “on a razor’s edge of copyright law.” There we were called on to determine whether two belt buckles bearing sculptured designs cast in precious metals and principally used for decoration were copyrightable. Various versions of these buckles in silver and gold sold wholesale at prices ranging from $147.50 to $6,000 and were offered by high fashion and jewelry stores. Some had also been accepted by the Metropolitan Museum of Art for its permanent collection.

In concluding that the two buckles were copyrightable' we relied on the fact that “[t]he primary ornamental aspect of the Vaquero and Winchester buckles is conceptually separable from their subsidiary utilitarian function.” Id. at 993. A glance at the pictures of the two buckles, reproduced^ at id. 995, coupled with the description in the text, confirms their highly ornamental dimensions and separability. What distinguishes those buckles from the Barnhart forms is that the ornamented surfaces of the buckles were not in any respect required by their utilitarian functions; the artistic and aesthetic features could thus be conceived of as having been added to, or superimposed upon, an otherwise utilitarian article. The unique artistic design was wholly unnecessary to performance of the utilitarian function. In the case of the Barnhart forms, on the other hand, the features claimed to be aesthetic or artistic, e.g., the life-size configuration of the breasts and the width of the shoulders, are inextricably intertwined with the utilitarian feature, the display of clothes. Whereas a model of a human torso, in order to serve its utilitarian function, must have some configuration of the chest and some width of shoulders, a belt buckle can serve its function satisfactorily without any ornamentation of the type that renders the Kieselstein-Cord buckles distinctive.⁵

The judgment of the district court is affirmed.

1 . Appellant's failure to provide copyright notice until 18 months after initial distribution of its forms is not fatal to its claim. 17 U.S.C. § 405(a)(2) provides:

"The omission of the copyright notice prescribed by sections 401 through 403 from copies of phonorecords publicly distributed by authority of the copyright owner does not invalidate the copyright in a work if— ******

"(2) registration for the work has been made before or is made within five years after the publication without notice, and a reasonable effort is made to add notice to all copies or phonorecords that are distributed to the public in the United States after the omission has been discovered; or ...."

At oral argument counsel for appellant maintained that Barnhart's president had made no affirmative decision not to copyright her forms from the very beginning; rather, she later discovered this omission and took steps to remedy it by corresponding with previous purchasers of the forms.

2 .,- The Senate Report offered this description of Title II’s purpose:

"The purpose of the proposed legislation, as amended, is to encourage the creation of original ornamental designs of useful articles by protecting the authors of such designs for a limited time against unauthorized copying. The title is intended to offer the creator of ornamental designs of useful articles a new form of protection directed toward the special problems arising in the design field, and is intended to avoid the defects of the existing copyright and design patent statutes by providing simple, easily secured, and effective design protection for the period of 5 years, or, if renewed, a period of 10 years, under appropriate safeguards and conditions.

."Such designs are presently protected by design patents issued under title 35, United States Code, if they meet the requirements of title 35. A design patent may not be issued until a search has been made to determine that such design possesses novelty. The design patent law, while affording protection to some designs, has proved adequate to protect those whose designs have only a short life expectancy.

"The present copyright statute is equally inappropriate for the protection of such designs. The term of copyright protection is too long for the majority of designs. The scope of copyright protection is too broad, while the notice and registration requirements do not fit the needs of design protection. Also, the copyright law protects only those designs which can be separately identified as 'works of art.’

"Because of the limitations of both the design patent and copyright laws, this legislation proposes to establish a new form of protection for ‘original ornamental designs of useful articles.' The subject matter of the bill is limited to designs of useful articles, the term ‘design’ referring to those features of the useful article intended to give it an ornamental appearance. The protection provided by this legislation would begin when a useful article, bearing the design, is made public, and would last for 5 or, if renewed, 10 years.” S.Rep. No. 473, 94th Cong., 1st Sess. 161-62 (1975).

3 . The House Report offered this explanation for the change in definition:

"In adopting this amendatory language, the Committee is seeking to draw as clear a line as possible between copyrightable works of applied art and uncopyrighted works of industrial design. A two-dimensional painting, drawing, or graphic work is still capable of being identified as such when it is printed on or applied to utilitarian articles such as textile fabrics, wallpaper, containers, and the like. The same is true when a statute or carving is used to embellish an industrial product or, as in the Mazer case, is incorporated into a product without losing its ability to exist independently as a work of art. On the other hand, although the shape of an industrial product may be aesthetically satisfying and valuable, the Committee’s intention is not to offer it copyright protection under the bill. Unless the shape of an automobile, airplane, ladies’ dress, food processor, television set, or any other industrial product contains some element that, physically or conceptually, can be identified as separable from the utilitarian aspects of that article, the design would not be copyrighted under the bill. The test of separability and independence from 'the utilitarian aspects of the article’ does not depend upon the nature of the design — that is, even if the appearance of an article is determined by esthetic (as opposed to functional) considerations, only elements, if any, which can be identified separately from the useful article as such are copyrightable. And, even if the three-dimensional design contains some such element (for example, a carving on the back of a chair or a floral relief design on silver flatware), copyright protection would extend only to that element, and would not cover the over-all configuration of the utilitarian article as such.” H.R.Rep. No. 1476, supra, at 55, 1976 U.S.Code Cong. & Ad.News at 5668. One commentator has stated:

“The amended text thus subjected virtually all industrial art seeking copyright protection under Title I to the separability criterion of sections 101 and 102(a)(5).. ■.. This doctrine of separability could then authorize the denial of copyrightability to modern, functional de-signs____” Reichman, Design Protection in Domestic and Foreign Copyright Law: From the Berne Revision of 1948 to the Copyright Act of 1976, 1983 Duke L.J. 1143, 1261.

4 . The House Report explained this deletion as follows:

“In reporting S. 22, the House Judiciary Committee has deleted Title II. Until 1954, designs for useful articles were not generally subject to copyright protection. The primary protection available was the design patent, which requires that the design be not only ‘original’, the standard applied in copyright law, but also ‘novel’, meaning that it has never before existed anywhere.

“However, in 1954 the Supreme Court decided the case of Mazer v. Stein, 347 U.S. 201 [74 S.Ct. 460, 98 L.Ed. 630], in which it held that works of art which are incorporated into the design of useful articles, but which are capable of standing by themselves as art works separate from the useful article, are copyrightable. The example used in the Mazer case was an ornamental lamp base.

"Title II of S. 22 as passed by the Senate would create a new limited form of copyright protection for ‘original’ designs which are clearly a part of a useful article, regardless of whether such designs could stand by them: selves, separate from the article itself. Thus designs of useful articles which do not meet the design patent standard of ‘novelty’ would for the first time be protected.

“S. 22 is a copyright revision bill. The Committee chose to delete Title II in part because the new form of design protection provided by Title II could not truly be considered copyright protection and therefore appropriately within the scope of copyright revision.

"In addition, Title II left unanswered at least two fundamental issues which will require further study by the Congress. These are: first, what agency should administer this new design protection system and, second, should typeface designs be given the protections of the title?

"Finally, the Committee will have to examine further the assertion of the Department of Justice, which testified in opposition to the Title, that Title II would create a new monopoly which has not been justified by a showing that its benefits will outweigh the disadvantage of removing such designs from free public use.

“The issues raised by Title II have not been resolved by its deletion from the Copyright Revision Bill. Therefore, the Committee believes that it will be necessary to reconsider the question of design protection in new legislation during the first session 95th Congress. At that time more complete hearings on the subject may be held and, without the encumbrance of a general copyright revision bill, the issues raised in Title II of S. 22 may be resolved.” H.R.Rep. No. 1476, supra, at 50, 1976 U.S.Code Cong. & Ad.News at 5663.

5 . Our learned colleague, Judge Newman, would have copyrightability of a utilitarian article turn on "whether visual inspection of the article and consideration of all pertinent evidence would engender in the [ordinary] observer’s mind a separate non-utilitarian concept that can displace, at least temporarily, the utilitarian aspect.” (Dissenting Op. p. 423). The difficulty with this proposal is that it uses as its yardstick a standard so ethereal as to amount to a "non-test” that would be extremely difficult, if not impossible, to administer or apply. Whether a utilitarian object could temporarily be conceived of as a work of art would require a judicial investigation into the ways in which it might on occasion have been displayed and the extent of the displays. It might involve expert testimony and some kind of survey evidence, as distinguished from reliance upon the judge as an ordinary observer.

Almost any utilitarian article may be viewed by some separately as art, depending on how it is displayed (e.g., a can of Campbell Soup or a pair of- ornate scissors affixed to the wall of a museum of modern art). But it is the object, not the form of display, for which copyright protection is sought. Congress has made it reasonably clear that copyrightability of the object should turn on its ordinary use as viewed by the average observer, not by a temporary flight of fancy that could attach to any utilitarian object, including an automobile engine, depending on how it is displayed.

The illusory nature of the standard suggested by Judge Newman is confirmed by his suggestion that under it some mannequins might qualify as copyrightable sculptures whereas others might not, depending on numerous factors, including the material used, the angular configuration of the limbs, the facial figures and the hair. Indeed, his uncertainty as to whether the styrene mannequin chests clothed with a shirt or blouse could be viewed by the ordinary observer as art only serves to underscore the bottomless pit that would be created by such a vague test. However, regardless of which standard is applied we disagree with the proposition that the mannequins here, when viewed as hollowed-Out three dimensional forms (as presented for copyright) as distinguished from two-dimensional photographs, could be viewed by the ordinary observer as anything other than objects' having a utilitarian function as mannequins. It would only be by concealing the open, hollowed-out rear half of the object, which is obviously designed to facilitate pinning or tucking in of garments, that an illusion of a sculpture can be created. In that case (as with the photos relied on by the dissent) the subject would not be the same as that presented for copyright.