Gregory Poe v. Missing Persons, Dale Bozzio, Steven Brooks, Capitol Records, Inc., Capitol Industries-Emi Inc.

745 F.2d 1238, 223 U.S.P.Q. (BNA) 1297, 1984 U.S. App. LEXIS 17461
CourtCourt of Appeals for the Ninth Circuit
DecidedOctober 23, 1984
Docket83-6132
StatusPublished
Cited by21 cases

This text of 745 F.2d 1238 (Gregory Poe v. Missing Persons, Dale Bozzio, Steven Brooks, Capitol Records, Inc., Capitol Industries-Emi Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gregory Poe v. Missing Persons, Dale Bozzio, Steven Brooks, Capitol Records, Inc., Capitol Industries-Emi Inc., 745 F.2d 1238, 223 U.S.P.Q. (BNA) 1297, 1984 U.S. App. LEXIS 17461 (9th Cir. 1984).

Opinion

ALARCON, Circuit Judge:

Gregory Poe appeals from the order of the district court granting the appellees’ motion for a summary judgment on Poe’s claim of copyright infringement and violation of section 43(a) of the Lanham Act. Poe also seeks reversal of the dismissal of all pendent state claims.

I.

We must decide whether the evidence submitted by the parties on the motion for a summary judgment raised a genuine issue of material fact. We have concluded that the evidence presented to the district court reveals that there is a disputed issue of material fact as to whether “Aquatint No. 5” is a utilitarian article of clothing or a work of art.

II.

Poe filed a claim seeking damages for the copying of an article he created which he described “as an artwork in the medium of soft sculpture entitled ‘Aquatint No. 5’.”

Appellees moved for a summary judgment claiming that “the critical facts in this case are not in dispute. There is no dispute that plaintiff designed the swimsuit." (emphasis added).

Appellees presented no evidence in support of their contention that Poe’s article was a “swimsuit” or an article of clothing. The only evidence offered by the appellees in support of the motion for a summary judgment was the declaration of one of their lawyers. This declaration merely states that the quotations from Poe’s deposition are accurate. Copies of portions of Poe’s deposition are attached to the declaration.

In his deposition, Poe referred to Aquatint No. 5 as “visual art.” Poe stated that he had asked Carla Weber to photograph fashion designs or articles of clothing that he was selling. Carla Weber in turn asked *1240 him if she could photograph Aquatint No. 5.

Poe filed a declaration in opposition to the motion for a summary judgment to give factual support to his claim that there were triable issues of fact as to whether Aquatint No. 5 was a work of art or an article of clothing. The following pertinent facts were set forth in Poe’s declaration. Poe is an artist and fashion designer whose clothing styles are recognized in the fashion world. He was a student at California Institute of the Arts in 1978. That same year he created Aquatint No. 5.

Poe described Aquatint No. 5 as an eccentric and controversial piece of “... an artwork, not clothing. It is an artists impression or rendering of an article of clothing and in this context, I developed, created and originated this work as an artist. It stands by itself as a work of conceptual art.”

Poe stated that Aquatint No. 5 appeared in an art show sponsored by the Los Ange-les Institute for Contemporary Art. Carla Weber requested that “she be able to use the artwork so that she could photograph it and place the photograph in her professional portfolio.” 1 Poe did not consent to the use of Aquatint No. 5 on an album cover. Aquatint No. 5 was marked “Gregory Poe©” at the time it was photographed by Carla Weber.

In Poe’s application for a copyright, to which Poe alludes in his declaration, the article is described as a “three dimensional work of art in primarily flexible clear-vinyl and covered rock media.”

At the hearing on the motion for summary judgment, the original article, Aquatint No. 5, was introduced as an exhibit. We *1241 also have examined this exhibit. It is in two parts.

One part consists of two pieces of clear plastic material cut in a figure 8 shape. The figure 8 portion is 18 inches in length. The smaller loop of the figure 8 is 6V2 inches across. The larger loop is llk inches across. Within each loop is a sealed area in the shape of a triangle filled with what appears to be crushed rock in a distinct color. A 70-inch clear plastic tube has been inserted through the end of the smaller loop of the figure 8.

The other section connects two pieces of clear plastic which have been cut into an angular shape with eight sides, wider at the ends and tapering towards the center. It is 1572 inches long and 7V2 inches wide at each end. Within this eight-sided piece of plastic are two sealed areas which also contain crushed rock in the same colors present in the figure 8 shaped portion. The center has a width of three inches. Looped into one end of this part is a 75-inch long clear plastic tube. Looped through the other end is a 72-inch clear plastic tube.

The district court made the following findings:

1. ) In 1979, plaintiff designed a swimsuit/piece of conceptual artwork entitled ‘Aquatint No. 5’.
2. ) During 1979, plaintiff furnished one such swimsuit/piece of art to Carla Weber, a photographer.
3. ) Weber photographed Dale Bozzio, one member of the rock group Missing Persons, while Bozzio was wearing plaintiffs “Aquatint No. 5.”
4. ) Weber’s photograph of Bozzio wearing plaintiff’s “Aquatint No. 5” was reproduced on an album cover of an album by the Missing Persons entitled “Missing Persons.”
5. ) Copy on the album cover credits Weber with being the photographer of the Bozzio picture and credits plaintiff with being the designer of the swimsuit/artwork worn by Bozzio in the photograph. 6. ) In 1982, plaintiff applied for copyright registration for his swimsuit/artwork; the copyright office refused to register the work.
7. ) The present action was instituted in October 1982.
8. ) Any Conclusion of Law which is also a Finding of Fact is herein incorporated by reference.

Based on these findings, the district court concluded that “plaintiff’s ‘Aquatint No. 5’ is not copyrightable because the functional aspects of the swimsuit are not independent of the alleged sculptural/artistic aspects of the suit. 17 U.S.C. § 101; 1 M. Nimmer, Nimmer on Copyright, § 2.08[H] (1982).” (Conclusion number 5).

III.

In reviewing a grant of summary judgment, we must consider the evidence in the light most favorable to the party against whom summary judgment is granted. “[W]e must determine de novo whether there was no genuine issue of material fact and that the moving party was entitled to judgment as a matter of law.” M/V American Queen v. San Diego Marine Construction, 708 F.2d 1483, 1487 (9th Cir. 1983).

To prove his claim of copyright infringement, Poe was required to show that the copied article was an original sculptural work. 17 U.S.C. § 102(5). He was also required to show that the article was not useful, or that the “sculptural features ... can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” Id. § 101.

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745 F.2d 1238, 223 U.S.P.Q. (BNA) 1297, 1984 U.S. App. LEXIS 17461, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gregory-poe-v-missing-persons-dale-bozzio-steven-brooks-capitol-ca9-1984.