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Expanding Protections for Artistic Features of Utilitarian Objects

BY Jason D. Sanders
May 02, 2005

In April 2004, the Second Circuit Court of Appeals reversed a district court's conclusion that the features of Mattel's “CEO Barbie” and “Neptune's Daughter Barbie” were not protected by copyright. With little discussion, the three judge panel unanimously held that while Mattel's “particularized expression” in a “doll visage with upturned nose, bow lips, and widely spaced eyes” does not prevent a competitor from creating dolls with upturned noses, bow lips and widely spaced eyes, it does bar a competitor from copying Mattel's “realization” of the particular Barbie's features. Mattel, Inc. v. Goldberger Doll Manufacturing Co., 365 F.3d 133, 136 (2d Cir. 2004).

Shortly after that decision was published, the Seventh Circuit Court of Appeals in Pivot Point International, Inc. v. Charlene Products, Inc. had a much more difficult time determining the copyright protection afforded to a very similar product. 372 F.3d 913 (7th Cir. 2004). In Pivot Point, the manufacturer of mannequin heads for use in makeup and hairstyling practice sued another manufacturer that had made a virtually exact copy of Pivot Point's “Mara” mannequin head, made to portray a model's “hungry look.” In a lengthy opinion, the Court of Appeals reversed the lower court decision (by Judge Frank H. Easterbrook of the Court of Appeals, who had been sitting by designation) and ruled that the mannequin's facial features were copyrightable.

Why was the Pivot Point facial design a much more difficult case under copyright law? Because, unfortunately for Pivot Point, it was considered useful.

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