Sculptor Given Another Shot at Copyright Case

     (CN) – A federal magistrate improperly dismissed a sculptor’s copyright claims after deeming her copyright registration submissions disorderly and, therefore, invalid, the 7th Circuit ruled.
     Quincy Neri designed a glass sculpture, which she calls “Mendota Reflection,” that was installed in the vaulted ceiling of the entrance way at Linda Hughes’ condominium in Madison, Wis., as part of a renovation of the residence by the Architectural Building Arts.
     Eric Ferguson photographed before, during and after of the renovation, ultimately capturing two images of the sculpture. The Architectural Building Arts ran the photos on its website and in an application for an architectural award. Lighting designer Leslie Sager also posted the pictures on her website, and Ferguson posted them on his Flickr page.
     “Architectural Building Arts, Sager, and Ferguson all sought to exemplify the skills they had contributed,” Chief Judge Frank Easterbrook wrote for a three-judge panel of the 7th Circuit.
     “This lawsuit has been their reward. Neri contends that Architectural Buildings Arts (plus Melinda Monroe and Steve Larson, its owners), Sager, and Ferguson violated her copyright in the sculpture.”
     Neri had appealed to the Chicago-based panel after U.S. Magistrate Judge Stephen Crocker dismissed the suit in the Western District of Wisconsin, finding that Neri’s application for a copyright of her unpublished works, including the sculpture at issue, was defective and the certificate of registration invalid.
     Crocker took issue with whether Neri submitted her application for a copyright registration in an “orderly form,” which is one of four requirements to obtain a registration for collections of unpublished works.
     “The magistrate judge described Neri’s submission as a booklet containing photographs of several sculptures, plus some loose photographs,” Easterbrook wrote. “The sculpture installed at the Hughes residence is included among the loose photographs but not the booklet. The magistrate judge thought this disorderly and thus ineligible for registration. We tried to verify this by looking for ourselves but encountered an obstacle: the material Neri submitted for registration is not in the record.”
     Crocker came to this conclusion from questions and answers during depositions. Although Neri did describe her submission in one instance the same way as the judge did, she insisted during oral arguments in the 7th Circuit that a photo of her sculpture was in the booklet.
     “The problem may be terminological; Neri may have used the title ‘Mendota Reflection’ for more than one sculpture,” Easterbrook wrote. “But it is hard to understand how a court could conclude that a given submission is not ‘in an orderly form’ when the submission cannot be examined.”
     Crocker apparently concluded that having a single bound book or booklet was the only orderly way to present photographs. Therefore, if Neri’s assertions that the subject sculpture is in the booklet and is not one of the loose photographs, the registration is valid, the 7th Circuit found.
     “What is more, we do not see why only a single document can be orderly,” Easterbrook wrote (emphasis in original). “The Register did not say so, either in issuing the regulations or in evaluating Neri’s submission. The Register found the submission adequate; a district court should not set aside an agency’s application of its own regulations without strong reason.”
     Crocker did not back up his opinion with any legal authority establishing how much order is required. In fact, no such authority seems to exist, the federal appeals court found.
     Because registration of a copyright serves as a record-keeping function, the key question in determining what constitutes “orderly form” must be “whether the submission is organized well enough to permit users and courts to pin down the ‘information’ on which copyright enforcement depends,” according to the ruling. “The Copyright Office said exactly this in a letter to Neri, concluding that her registration is valid because ‘the works have been presented to us in a format from which they can readily be identified.’ This implies that loose photographs could suffice if numbered or labeled (for example, if each were named, as the Office’s letter said that Neris’ submissions had been).
     “Any organization that enables a court to associate a work underlying the suit with a work covered by a registration ought to do the trick. If a booklet (or PDF file) with page numbers is orderly enough – as the magistrate judge thought – a sequence of loose but numbered or named photographs should be enough too.” (Parentheses in original.)
     If Neri’s sculpture is identifiable in the registration, that should suffice, the court found. If Neri’s submission contains only photos of sculptures similar to the one at issue, but not the actual sculpture, then her registration does not support the suit.
     The 7th Circuit dismissed an alternate claim by the defendants that Neri was not the actual author of Mendota Reflection. They said that honor belongs to the glass-blower who made the approximately 60 glass elements of the sculpture.
     “Defendants might as well say that the typesetter owns a book’s copyright or that the members of an orchestra who play a new composition using their own interpretations of the score become the music’s authors,” Easterbrook wrote.
     The Circuit provides other possible defenses that the District Court might want to look into on remand, including whether Hughes and Architectural Building Arts have potential claims to authorship because they allegedly had some say in the colors and arrangements of the 60 individual glass pieces.
     “Another potential defense is fair use,” Easterbrook added. “Architectural Building Arts and Sager were entitled to document their roles in renovating Hughes’s home. It was not possible to show what they had accomplished without displaying the sculpture along with the furniture and other aspects of the foyer.”

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