It may be big and useful, but, I’m sorry, it’s just not very creative
A producer of rubber – er, you know what — can’t rely on copyright law to prevent a competitor from using its designs, says Judge Saundra Brown Armstrong of the U.S. District Court for northern California in her November 17th opinion in ConWest Resources Inc. v. Playtime Novelties Inc.
ConWest, which sells sex toys, holds 12 copyright registrations on the designs for rubber ”sculptures” of a particular male body part. Playtime, a former licensee of the designs, continued to use them to manufacture competitive products after ConWest terminated its license, and ConWest sued.
Playtime argued that the objects — rubber reproductions of actual body parts – are so-called “useful articles” not entitled to copyright protection. Aesthetic aspects of a useful article are entitled to protection under the Copyright Act, but only if they are conceptually separable from utilitarian aspects of the design. Playtime asserted that there were no aesthetic aspects of the designs that could be separated conceptually from the purposes for which the “sculptures” were used.
You’ve got to love ConWest’s response to this challenge. It argued that these particular designs are (in the court’s words) “tributes to certain models, and that collectors purchase them for display.” The “sculptures” (in ConWest’s words) “are intended to stimulate in the mind of the beholder an appreciation of the inherent beauty and power of male sexuality.” They ”are not sold solely for utilitarian purposes. ConWest has priced these erotic fantasy sculptures well above the range for purely utilitarian ’sex toys.’”
The court didn’t buy ConWest’s argument, which I suppose just goes to show you that creativity in these matters depends not on what you’ve got, but — you guessed it — on what you do with it. Then again, who knows what the outcome would have been had ConWest cast each of the sculptures in a multi-colored swirl of rubber?
And, you thought IP law was boring.
December 11th 2006, 11:10am