Circuit Extinguishes Hookah Copyright Suit

     (CN) - The shape of a hookah pipe's water container is not copyrightable, the 9th Circuit ruled Thursday.
     Often ornately designed and decorated, a hookah is a kind of water pipe made up of a glass base filled with water, a bowl with coals and tobacco, and one or more hoses for inhaling.
     Believed to have originated in Persia some 500 years ago, hookahs have become increasingly popular in the United States over the last decade or so.
     California-based Inhale Inc. registered a copyright for a hookah decorated with a skull and crossbones in 2008, and within a few weeks sued Starbuzz Tobacco Inc. and Wael Salim Elhalawani for infringement, alleging that Starbuzz had copied not the hookah's distinctive graphics, but its shape.
     U.S. District Judge Otis Wright ruled for Starbuzz in Los Angeles, finding that the shape of the water container, a "useful article" in copyright parlance, was not protectable.
     A three-judge appellate panel affirmed Thursday from Pasadena.
     Under the U.S. Copyright Office's standards, such a useful article is only copyrightable if it "incorporates ... sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the' container," the unanimous decision states.
     "The shape of a container is not independent of the container's utilitarian function-to hold the contents within its shape-because the shape accomplishes the function," Judge Diarmuid O'Scannlain wrote for the panel. "The district court correctly concluded that the shape of Inhale's hookah water container is not copyrightable."
     The panel also awarded Starbuzz attorneys' fees and left it to the lower court to determine the amount.
     Starbuzz's attorney, Natu Patel, noted in an email that the lawsuit was "frivolous" to start with.
     "I am happy that the Ninth Circuit recognized this issue and affirmed the district court's award for attorneys' fees, and additionally granted attorneys' fees for the frivolous appeal," Patel added. "I believe that this opinion sends a strong message to plaintiffs who decide to pursue frivolous copyright claims and appeals."