From: Bruce Bertram <bmb@netcom.com>
Sender: cni-copyright@cni.org
To: Multiple recipients of list <cni-copyright@cni.org>
Subject: Copyright Furniture?
Date: Wed, 14 Jun 1995 20:40:05 -0400
For some time, pressure has been building in the furniture industry
regarding knock-off artists. The issues raised encompass trademark,
copyright, design patent, and possibly unfair competition. There are a
variety of factual situations, but one which is currently getting a lot
of attention is where a designer, say for a hotel, makes photocopies
of, for example, a page from a catalog showing a Baldacci sofa, and
sends the photocopy, or part of it, out with the invitation to bid to
various contract furniture manufacturers. The photocopy of the
Baldacci sofa is actually referred to as the spec for the sofa being
purchased. The hotel's designer may add instructions modifying certain
parameters such as length. The bidders are asked to bid on providing
copies of the Baldacci sofa as spec'd. (Cheaper of course.)
(The Baldaccis of the world claim they provide better quality for the
high price. But that is not necessarily so.)
Now, assuming no design patent on the sofa, it would appear that
initially there's a copyright violation in photocopying the catalog
picture and sending the copies out as part of the invitation to bid.
I don't think fair use could be argued here.
At first blush there does not appear to be a trademark or trade dress
issue since the buyer, i.e. the hotel's designer, knows s/he is not
buying the real Baldacci sofa. No confusion of source. I don't think
the eventual hotel guest would be relevant here.
Consider Section 113(b) of the Copyright Act (thanks Terry): "This title
does not afford, to the owner of copyright in a work that portrays a
useful article as such, any greater or lesser rights with respect to the
making, distribution, or display of the useful article so portrayed than
those afforded to such works under the law ....."
In Section 101: " 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..."
My questions are: Separate from any drawings, photos, renderings, etc.,
can the design of a piece of furniture, or a part thereof (e.g. an arm)
be copyrighted? (Clearly a design patent is available.)
If the answer to the first question is no, then if one can draw a sketch
of an uncopyrightable piece of furniture, could one draw the same sketch
from a catalog photo?
Any comments on my one-line trade mark/trade dress analysis above?
--
Bruce M. Bertram <URL:mailto:bmb@netcom.com> (finger for public key)
<URL:usps:646 Hyde Park Drive, Sunnyvale, CA 94087>
<URL:voice:408-739-9062>
<URL:fax\data:408-739-9413>
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