Nancy Wolff
FURNITURE DESIGNERS LOSE IN COPYRIGHT/TRADE DRESS INFRINGEMENT CASE
Heptagon Creations, Ltd. v. Core Group Marketing LLC et al. Case No. 11cv01794
FACTS
A design company that specializes in high-end furniture failed to establish that virtual furniture displayed on HGTV's Selling New York constitutes copyright infringement, trade dress infringement and unfair competition.
The popular HGTV television show “Selling New York” features real estate brokers selling luxury apartments to wealthy New Yorkers. On January 13, 2011, HGTV aired an episode in which the real estate brokerage firm Core Group tried to sell a condo at 240 Park Ave South for nearly $6 million. In the episode, Core's CEO discusses the fact that the property is less appealing because it is unfurnished.
To increase the appeal, Core contacted Heptagon Creations, a high-end furniture designer, and asked if Heptagon would consider lending Core some items from its popular “Andre Joyau” collection in exchange for the publicity it would receive as a result of being featured on the show. Heptagon initially agreed, and provided some photographs to Core so that Core could select the pieces it wanted to use in the apartment. Ultimately, however, the parties never came to a final agreement because Core refused to purchase an insurance policy for possible use of the real furniture.
Instead, Core took the images of Heptagon's furniture and created a virtual, fully furnished replica of the apartment to show interested buyers. This included some of Joyau’s most popular furniture items such as a virtual Cocoon Chair, a virtual Cross Table, a virtual Form Table, a virtual Shimne Vase, and a virtual Sylvan Floor Lamp. Core did not seek Heptagon’s permission to use the images or the furniture in this way.
ALLEGATIONS
Heptagon sued Core, the interior design firm hired by Core and an individual agent of the design firm, alleging that defendants’ use of virtual furniture in their sales presentation constituted copyright infringement, trade dress infringement and unfair competition. Although Heptagon did submit applications for registration to the US Copyright Office, the copyright office rejected the applications “on the basis of functionality” because “the objects are utilitarian and contain no separable authorship.” Notwithstanding this rejection, the Court made an independent determination as to copyright ability of the items at issue. New York federal judge Laura Swain dismissed Hetpagon’s lawsuit because it failed to plead that the design elements in its furniture are physically or conceptually separable from the furniture’s utilitarian elements. The Court explained the concepts of physical and conceptual separability as follows:
ANALYSIS
Physical Separability: when a component of a useful article can actually be removed from the original item and sold separately without impacting the article’s functionality, that physically separable design element may be copyrighted. For example, if a chair’s back was adorned with a non-structural decorative design, that design would be a physically separable element that could be copyrighted because the chair’s functionality would be unaffected by the removal of the design. If, however, the entire chair was carved from a piece of wood, the pattern of the wood’s grain would not be copyrightable as it would be impossible to separate the design element of the grain without affecting the chair’s functionality.
Conceptual Separability: this exists where design elements can be identified as reflecting the designer’s artistic judgment exercised independently of functional influences. Courts have declined to find conceptual separability in articles whose shape-although designed to be aesthetically pleasing-is dictated to a large extent by practical considerations.
CONCLUSION
To adequately make a copyright case without certificate of registration, a plaintiff must demonstrate that the design elements are physically or conceptually separable from the “functional” object—in this case, furniture—itself. Using these concepts as a guideline, the court analyzed each of the nine items of furniture at issue and determined that the designs elements were neither physically nor conceptually separable. Similarly, Plaintiff’s trade dress claim failed because the furniture wasn't shown to be anything more than functional, and Heptagon could not show that the trade dress had acquired secondary meaning.
WHAT IT MEANS
Be wary as to the use of seemingly innocuous background items in images, television shows and films. A piece of furniture or jewelry that is a focal point contains separately copyrightable elements, you may need to clear use or replace it. This case is important because it highlights how our American copyright laws differ from the European copyright laws. Unlike our American system, some countries in Europe afford copyright protection to what we consider to be functional items such as clothing design, furniture and jewelry, and photographers who license their photographs internationally must be wary of use of images containing those items outside the United States. A photograph featuring background furniture presents no issues when used in the US may not necessarily be immune from a claim if a designer has a foreign certificate of registration in the “functional” item and the image is used abroad.
SOPA and Protect IP
from the Copyright Alliance
Both pieces of legislation have been under attack and have been misrepresented with mischaracterizations and rhetoric that have distorted the facts. This legislation is about promoting and and protecting American jobs and American consumers and about ensuring the Internet as a safe and lawful tool for all. The bills are narrowly targeted at offshore websites that are primarily designed or created to offer complete copies of infringing works for purposes of commercial advantage or private financial gain. These sites are trafficking unlicensed, unregulated and unsafe products to U.S. consumers. Taking action against criminal activity is not stifling free speech, and it will not “break the internet”. People should take a look at what the bill actually does.
Some myth breakers:
SOPA is an extreme bill that would destroy the Internet.
- The new version of SOPA prohibits courts from requiring DNS redirection and forbids the interpretation or application of the law in a way that harms the Internet.
- The technique of DNS filtering is already in use and has not harmed the Internet.
- Only cases brought by the Justice Department can result in domain name filtering.
SOPA would let the Government and right holders shut down websites without any due process.
- Rogue sites legislation requires compliance with Rule 65 of the Federal Rules of Civil Procedure, which includes detailed procedures for issuing all types of injunctions, including notice and opportunities to be heard in court. Any criticism of the due process protections is with existing court processes, not rogue websites legislation.
DNS blocking is censorship like countries like China.
- Rogue sites legislation is a viewpoint-neutral enforcement of international IP standards through a fair judicial process. None of those things can be said about foreign political censorship.
The definition of “rogue sites” is vague.
- The definitions of a rogue site under the Senate and House bills use clearly defined, high standards, which already exist in current law. These bills do not change the definition of what is counterfeit or infringing; they merely provide the tools law enforcement needs to stop foreign criminals.
If a person uploads one infringing copy, a whole website can be taken down.
- A domain name can be filtered by a court only if that website is dedicated to infringing activity as demonstrated by willful actions of the owner or operator of the website. A single infringing copy uploaded by a user would not trigger domain name filtering.
Rogue website legislation could shut down YouTube, Facebook, etc.
- The new version of SOPA explicitly applies only to foreign domain names, not U.S. domain names ending in (for example) .com, .net, or .org. Even foreign versions of American companies’ websites would not be covered because they do not meet the bill’s requirement that the site be “U.S.-directed".
Rogue sites legislation is a trial lawyer’s dream.
- The action authorized in this bill is very limited in that it provides only the ability to prevent ongoing theft, but gives a plaintiff NO opportunity to recover damages or any money from a rogue website at all.
STUDY ON REMEDIES FOR COPYRIGHT SMALL CLAIMS
Nancy Wolff and Cathy Aron have been working closely with an ad hoc committee of visual arts organizations, including American Society of Media Photographers (ASMP), Graphic Artists Guild (GAG), Professional Photographers of America (PPA), and North American Nature Photography Association (NANPA), and American Photographic Artists
(APA) in response to the call for comments from the Copyright Office on the subject of a small claims court for copyright infringements. Although each organization is filing its own comments, we all generally support each other’s efforts and the same overall goal: A system that allows fair, speedy and economically affordable access to legal enforcement of copyrights for all copyright holders, irrespective of the economic impact of any particular infringement. More specifically, we seem to desire a number of specific steps toward achieving that goal.
- The ability to bring a claim without the need of legal representation, in a
forum that is cost effective and that does not require expensive travel or other out-of-pocket costs or expert fees.
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The ability to have a claim adjudicated timely by a tribunal that is knowledgeable about copyright.
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In the event that the process is not binding on a defendant once elected by
a plaintiff, provision for incentives to discourage a defendant from rejecting the
alternative forum and forcing a claim to be brought in a federal court of general
jurisdiction; and
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A resolution of a claim that offers finality and ease of enforcement of any judgment.
You can find a copy of PACA’s Initial Comments here.
Pioneering stock photography agency, Alamy, has recruited Adam Goldberg as vice president of sales for North America. Adam is leaving the post of director of corporate development at Corbis to join the company at the start of January.
Adam Goldberg commented: “Alamy has proven itself a tremendous resource for advertising, marketing and publishing professionals the world over. I'm excited to join the Alamy team and look forward to bringing its combination of amazing photography and client-focused services to the broader North American market."
Rachel Wakefield, Alamy’s head of sales said “Adam has a high calibre 20 year career in the stock photo industry and brings a wealth of experience which will be vital to our ambitious sales plans for the USA."
Alamy first opened its Brooklyn office in 2009 and is achieving 30% annual growth in the US market.
Corbis Images, a leading visual content and services provider for the creative and entertainment communities, recently named Edie Tobias as Senior Vice President of Commercial Products. Based in Los Angeles, Tobias will be responsible for leading the Commercial product group and growing the Corbis and Veer businesses globally.
Edie has both the deep knowledge and strategic vision to lead the next phase of Corbis’ Commercial offering,” said Gary Shenk, CEO of Corbis. “Her proven track record and market success in the visual content business will help evolve and expand our core competencies.”
Prior to her SVP position, Tobias served as Vice President of Media Products at the Company. Previous to this, she served as Vice President of Creative Content at Jupiterimages. She began her career at Sharpshooters Premium Stock Photography and Footage where she was President and joined Corbis as Director of Photography in 2000 after the acquisition of that company.
“I’m thrilled to become part of the senior management team as Corbis moves into this next phase of growth and expansion of services,” said Tobias. The entire Commercial Products team has worked extremely hard to prepare for this launch and I am honored to lead them.”
Design Pics announces the acquisition of First Light Associated Photographers Ltd., a Canadian based photo agency. The agency was originally founded in 1984 by Pierre Guevremont, Ron Watts and Brian Milne.
Founded in 2001, by Rick Carlson, Design Pics originally launched as a Royalty Free agency. The company began its expansion into the Rights Managed marketplace by acquiring the Irish Image Collection in 2007, followed in 2008 by the acquisition of the controlling interest in Axiom Photographic, a UK based RM agency specializing in unique travel imagery. These acquisitions were augmented as well by RM Collections developed by Design Pics in cooperation with its contributing photographers as well as the most recent acquisition of Pacific Stock earlier this month.
Rick Carlson, President of Design Pics states that “I have been very interested in First Light for some time, as they have been well established in Canada, and have a very comprehensive collection of Canadian content from leading Canadian photographers. When combined with Design Pics content, it will encompass one of the most extensive libraries of Canadian subject matter available anywhere.” Pierre Guevremont, President of First Light states “It is a critical time in the industry and it is important to build value and strength while creating efficiencies. We felt that Design Pics was an excellent opportunity going forward, because of the strength of their distribution systems and the technologies they have developed to sustain the network. They are in position to build upon the systems in a way that benefits photographers and ensures they are going to be a player in the new marketplace."
In addition to the acquisition of First Light, Design Pics has also entered into a management agreement with WAVE Royalty Free, which is an affiliated company to First Light. Design Pics will be distributing the WAVE royalty free imagery along with its own RF collections, as well as adding the footage components to its overall offerings.
Sign up for the Stock Photo Expo at the 2012 HOW Design Conference by January 31 to get the BEST rate and a FREE AD on our eNewsletter that is sent to 35,000 designers!
The Stock Photo Expo at the HOW Design Conference is the single best way for you to sell DIRECTLY to 3,500+ design professionals—and it’s the most effective use of your 2012 marketing budget.
Stock Photography EXPO
Boston, MA
Friday, June 22 • 8:30 AM - 6:30 PM
Join us for the 5th annual Stock Photography Expo, presented in conjunction with PACA! HOW Conference attendees PLUS attendees from The Dieline Packaging Design Conference, the InHOWse Managers Conference and The Creative Freelancer Conference will visit your table throughout the day on Friday, June 22, providing ample opportunity for them to interact with you.
EXPO EXHIBITORS RECEIVE
- Table and two chairs on which to display materials from 8:30 am to 6:30 pm in the HOW Conference registration foyer
- Electricity and Internet service are available for an additional fee
SPECIAL OFFER for PACA Members: As a member of PACA, you can participate in the Stock Photography Expo for just $1,750 (regularly $2,000).
No other event brings together this many experienced, influential buyers of stock photography. In fact, for 60% of attendees, this is the only event they attend each year.
There’s no time to wait—space is starting to sell out! Sign up by January 31 and we’ll include your banner ad in our eNewsletter sent to 95,000 designers. Make plans to join us in Boston on June 22 for the 2012 HOW Conference Stock Photo Expo. We’ll start promoting your stock photography today!
For more information on exhibiting at the 2012 HOW Conference Stock Photo Expo in Boston, contact Elayne Recupero at +1 267.247.5874 or elaynerecupero@gmail.com.
Splash’s market-leading offering of candid celebrity photography and extensive collection of exclusive portraiture, red carpet and archival entertainment content will now be made available to buyers in the English speaking market via i-picturemaxx. The i-picturemaxx media network represents the only independent, neutral and professional search engine of its kind. In response to the inefficiency that researchers are confronted with when navigating thousands of disparate websites, users can now search over 500 M digital assets (photos, video, audio, text) in one simple to use interface called my-picturemaxx.
Several new agencies in the UK have also joined i-picturemaxx like Goff Photos, Big Pictures, Barcroft Media, Camera Press, ISO Images, Future Media, Eyevine, Caters, Cavendish, Guardian Syndication, Magnum, National Geographic Stock, Optic Photos, Pacific Coast News, Press Association, Planet Photos, Solarpix, SWNS, Xclusive. Current my-picturemaxx buyers can access the new Splash News material automatically. New buyers/researchers whom are interested in using the my-picturemaxx software can get in touch with picturemaxx directly.
“Since 2007, picturemaxx has provided Splash News with a valuable marketing/sales channel to the German speaking market,” said Tom Tinervin, Managing Director of picturemaxx international. “With broad adoption of the my-picturemaxx research application in the United Kingdom, I am pleased that Splash News will now make their highly sought after content available to UK buyers.”
“We are pleased to expand our relationship with picturemaxx to the UK market,” said Kevin Smith, President of Splash News and Pictures. “The tools of picturemaxx have provided an invaluable extension of our outbound sales opportunities for many years in the German speaking market and we look forward to the same success in the UK. Previously buyers were able to access Splash through IDS but as of January 2012 Splash will no longer participate in IDS.”
In the beginning of 2012 media content of Splash News will be made availabe via the i-picturemaxx network for UK buyers.
The Bridgeman Art Library, the world’s leading source of fine art, cultural and historical images available for reproduction, is delighted to announce its representation of the Father Brown Photographic Collection, a valuable chronicle of life onboard the Titanic before tragedy struck 100 years ago.
In 1985, a collection of 42,000 photographs – among them, remarkable images and mementos of the Titanic – was uncovered in a Dublin basement. They were the work of a Jesuit Priest named Francis (Frank) Browne, who held passage on the first legs of the Titanic’s maiden voyage. While on board, an American millionaire offered to pay his way through to New York, but Browne’s Jesuit superior providentially ordered his disembarkation in Ireland. After the tragedy in April 1912, Browne’s photographs appeared on the front pages of newspapers around the world, as the sole visual chronicle of the Titanic’s passage from Southampton to Ireland before its doomed voyage to New York.
Father Browne's negatives lay forgotten for 25 years after his death in 1960. It was by chance that a fellow priest discovered Browne's amazing collection in a large metal trunk and brought the negatives to the attention of the London Sunday Times, who dubbed them “the photographic equivalent to the discovery of the Dead Sea Scrolls.”
The Father Brown Photographic Collection contains his series that started at Waterloo Station with the departure of the “Titanic Special,” documenting the activities of passengers and crew aboard the ship, concluding with the anchor being raised from the water for the final time and the last known shot of the Titanic as she left port.
© Fr Browne SJ Collection/UIG/Bridgeman Art Library
Kim Tidwell
Marketing Manager, North & South America
Bridgeman Art Library
65 East 93rd Street
New York, NY 10128
T: 212.828.1238
F: 212.828.1255
www.bridgemanart.com
Book now to select from the best exhibit spaces and to receive maximum pre-event publicity.
Venus Stock (www.VenusStock.com) a leader in premium Beauty, Health & Wellness stock imagery, opened the doors of their first U.S. office this week in Los Angeles, CA. Along with the launch of their online image library, the new offices include studio space for production and an expansive, global distribution partnered with other leading agencies.
Founded with today's health-conscious consumer in mind, Venus Stock has gathered a global network of award-winning photographers and creatives to provide high-end image solutions that go far beyond a pretty image, but include custom solutions along with a gamut of support services. In addition to branding and artistic direction, Venus Stock supplies premium, rights-managed imagery to the multi-billion-dollar medical, pharmaceutical and health industries.
"Our specialties are that we live what we offer, and each and every photographer, videographer, and model is deeply entrenched in the aspects of this new, cultural phenomenon that they capture. They live this lifestyle, and exude this consciousness. That is why our imagery is perceived as powerful and different," said Victoria Hulett-Gross, Venus Stock's Creative Director, producer, and former model with 20+ years of experience in the medical aesthetics field.
"We're thrilled to be the first agency that specializes in beauty, health, and wellness content. We've curated only the best images so that buyers in this emerging market can quickly find what they need." Victoria explained, "Not all images are created equal. The exploding aesthetic industries have very specific demands that an average 'good' image can't meet. I am taking what I have learned over the last decade and turned it into an irresistible formula for our sophisticated clientele."
For additional information:
office@VenusStock.com
www.VenusStock.com
323/743-8001
Kick off your 2012 marketing campaign by booking a table or advertising (print or digital) at Visual Connections Chicago on April 26th. Seize this opportunity to meet buyers in the second most important US market after New York.*
Exhibit space is available from $1,125, advertising in the show guide from $315, and on-screen from $120 (after PACA member discount, which is valid until March 16).
Book now to select from the best exhibit spaces and to receive maximum pre-event publicity.
Our event offers:
- One-on-one contact with hundreds of image buyers.
- Great incentives for buyers to attend, including a keynote seminar, prize drawing, and free beer and wine from 4pm.
- No hidden extras: furniture, internet, power, show guide entry, unlimited refreshments and access to the buyer registration list are all included.
- Complimentary gallery listing in our Image Sources directory, the most comprehensive in the industry.
- First time exhibitors: we offer a 100% money back satisfaction guarantee or a 10% discount.
Past Chicago exhibitors range from some of the biggest in the industry to the smaller specialized: Corbis, Bridgeman Art Library, Shutterstock, Blend, Stockfood, National Geographic, Alamy, AP Images, Custom Medical, Everett Collection, Lonely Planet Images, Schumann & Company and many others.
“The overall quality of everything from qualifying the attendees to the exhibitors to the hospitality. It's hard to find and this event has it.” — Sherie Presta, Sherie Presta Creative
* Details for Visual Connections New York 2012, on October 24th, will be announced later this month.
Find out more or contact Deborah Free at +1 585 768-7880 / deborah@visualconnections.com
We would like to announce a call for entries for The EPSON International Pano Awards 2012, dedicated to the art of panoramic photography.
Earlybird entries close 20th April 2012.
This is the third year of the awards, and we are pleased to announce an exhibition of the winners and highest scoring images at the PMA Photo Imaging trade show in Melbourne, May 2012, and more than US$25,000 in cash and prizes.
See the The EPSON International Pano Awards website for more details.
Kind regards,
David Evans
Curator