For today’s Invoking IP segment,
we are going to talk about two carpet companies that had a fight over what can
be copied in a sample book. Why is
this important? Because today
we’ll finally start taking some steps into considering the differences in function
and design in a copyright. The
case in question is Fabrica
Inc. v. El Dorado Corp.[1] In Fabrica,
Fabrica expanded from residential carpet market and made boo-koos of money by
transitioning to the commercial carpet market. Like any rational competitor, what was El Dorado Corp. to do
but follow suit? This case brings
up questions about the where the lines are for copyrighting a function. It also raises some trademark fair use
questions.[2] Since the opinion severs the two so
nicely, I’ll cover copyright today and trademark in tomorrow’s post.
Aside, just for shits and
giggles, here are some fun NPC or PC names derived from the attorneys
representing the parties: Golant; Disner Ashen; Peregrinsen
When Fabrica made the jump into
commercial carpet, it commissioned new display folders. These are books containing carpet
samples and descriptions of their technical specifications. While it’s true that “[m]ost mills
develop a distinctive layout and design for their folders,” Fabrica went above
and beyond.[3] Fabrica’s display folders were “high
quality…with simulated white suede, with saddle stitching along the borders and
brass tips at the corners…[and] a unique fold-out book format featuring a
full-page carpet sample on the inside left panel and small carpet samples on
the inside right panel.”[4]
Not the display books of the time, but still something to get you in the mood. |
Even El Dorado agreed that
Fabrica struck gold with their new design. So, “El Dorado’s vice-president took a Fabrica display
folder to a folder manufacturer and instructed him to copy it.”[5] Full stop, cowboy. That’s blatant copying. Surely
this is going to end up being considered copyright infringement, right? In fact, “[v]irtually every feature of
the Fabrica folder was incorporated into the design of the El Dorado folder;
the only difference was in the color of the simulated suede and stitching. El Dorado even copied the placement on
the folders of the brand name, company name and address, and showroom
locations.”[6]
So, if El Dorado knew it was
copying, why wasn’t it worried about getting in trouble? Well, the question is whether a display
folder is a “useful article” or a “pictorial, graphic, [or] sculptural
work.” If it’s a useful article,
it’s not entitled to copyright protection. If it’s a pictorial work, it is. What if, as you’ve likely surmised, it could incorporate
features of either? Read on!
Photos of the original and copied display books preserved in state of the art technology from 1983. (697 F.2d 896-97) |
“A ‘useful article’ is an article
having an intrinsic utilitarian function that is not merely to portray the
appearance of the article or to convey information. An article that is normally
a part of a useful article is considered a ‘useful article’.”[7] And useful articles aren’t subject to
copyright protection. On the other
hand, a “pictorial, graphic, [or] sculptural work” is accorded copyright
protection.[8] These include things like “two-dimensional and three-dimensional
works of fine, graphic, and applied art,
photographs, prints and art
reproductions, maps, globes, charts, technical drawings, diagrams,
and models.”[9] We’ve had a lot of debate over this in
the courts, and we’ve come down to the position that copyright laws protect
form, but they do not protect function.[10] With things like charts, technical
drawings, diagrams, and models, there’s a huge overlap in form (which is
protected) and function (which isn’t).
Formerly, courts had to decide if something’s function was solely its
utility or if it had expressive value.
(Mazer
v. Stein)[11].
Today, “if any article has any intrinsic utilitarian function, it
can be denied copyright protection to the
extent that its artistic features can be identified separately and are capable
of existing independently as a work of art.”[12] “Unless the shape of an [object]
contains some element that, physically or conceptually, can be indentified as
separable from the utilitarian aspects of that article, the design would not be
copyrighted.”[13]
In this case, the court found
that because “[t]here is no aspect of the folders that can be separated out and
exist independently of their utilitarian aspects,” they could not be
copyrighted.[14]
Jumping ahead to application to
RPGs, that standard makes a lot of sense.
Take something like an RPG rulebook. It is pretty clear that things like paintings and maps could
be taken out of the rulebook and still have an artistic and expressive element
to them. Therefore, these items
enjoy copyright protection even if other portions of the work do not.
It’s a little less clear for
things like tables, rules, charts, etc.
Does Pathfinder’s table showing how attack damages change by size enjoy
copyright protection? Is it
expressive? Probably not. Is it an idea? Possibly, but ideas themselves aren’t
subject to copyright. It might be minimally creative as an
expression of a system/fact under the Feist
Publications standard.[15] It’s certainly not a minimally creative
arrangement though. Size values
and variables based on those size variables are presented. Probably no copyright protection here.
This table likely doesn't enjoy copyright protection. That's why d20pfsrd.com was able to copy it verbatim. |
Tomorrow we’ll look at a related
question. Fabrica didn’t have a
copyright in their folder design.
But, they might have held trademark protection in the form of trade
dress. Did El Dorado’s
appropriation of Fabrica’s design constitute trademark infringement even if it
didn’t constitute copyright infringement?
[1] 697 F.2d 890
(9th Cir. 1983).
[2] Which, if we
are being honest, I’m just working my way through myself these days.
[3] 697 F.2d at
892.
[4] Id.
[5] Id.
[6] Id.
[7] 17 U.S.C. §
101 (2012).
[8] 17 U.S.C. §
102 (2012).
[9] 17 U.S.C. §
101 (2012) (terms relevant to RPGs bolded).
[10] 697 F.2d at
892-93.
[11] 347 U.S.
201 (1954)
[12] Id. at 893.
[13] Id.
[14] Id.
[15] 499 U.S.
340 (1991).
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