May–June, 2017 Vol. 107 No. 3

Unregistered Trademarks in EU Trademark Law Verena von Bomhard and Artur Geier

Nicht Eingetragene Marken Als Relative Eintragungshindernisse Verena von Bomhard and Artur Geier

Strategies to Avoid Risks Related to Trademark Squatting in China Michele Ferrante

The New Trademark Opposition System in Mexico John M. Murphy

Corrective Advertising in Lanham Act Damages: The Use and Misuse of Past Advertising Expenditures D. Scott Bosworth, Russell W. Mangum, and Eric C. Matolo

Commentary: C-O-P-Y-R-I-G-H-T: What Does That Spell? Star Athletica v. Varsity Brands Reimagines Protection for Useful Articles Jonathan E. Moskin

Commentary: Monetary Recovery for “Infringement” of EU Trademarks In Statu Nascendi Martin Viefhues

Book Review: Trade Mark Law in Europe. Alexander von Mühlendahl, Dimitris Botis, Spyros Maniatis, and Imogen Wiseman Jane Collen

Book Review: The Protection of Intellectual Property in International Law. Dr. Henning Grosse Ruse-Khan Claus M. Eckhartt

INTERNATIONAL TRADEMARK ASSOCIATION Powerful Network Powerful Brands

655 Third Avenue, New York, NY 10017-5646 Telephone: +1 (212) 642-1733 email: wknox@inta.org Facsimile: +1 (212) 768-7796 OFFICERS OF THE ASSOCIATION JOSEPH FERRETTI ................................................................................................................... President TISH L. BERARD ..............................................................................................................President Elect DAVID LOSSIGNOL ........................................................................................................... Vice President AYALA DEUTSCH ............................................................................................................. Vice President TIKI DARE ............................................................................................................................... Treasurer ZEEGER VINK .......................................................................................................................... Secretary MAURY M. TEPPER, III ............................................................................................................... Counsel ETIENNE SANZ DE ACEDO ................................................................................... Chief Executive Officer

The Trademark Reporter Committee

EDITORIAL BOARD EDITOR-IN-CHIEF, CHAIR STAFF EDITOR-IN-CHIEF KATHLEEN E. MCCARTHY WILLARD KNOX

Senior Editors NEIL WILKOF

JESSICA ELLIOTT CARDON RUTH CORBIN GLENN MITCHELL ELISABETH KASZNAR FEKETE RAFFI V. ZEROUNIAN FABRIZIO MIAZZETTO PAMELA CHESTEK CHIKAKO MORI

Staff Editor Staff Editor BEVERLY HARRIS JOEL L. BROMBERG

Editors TSAN ABRAHAMSON MARIA BARATTA MARTIN J. BERAN DANIEL R. BERESKIN STEFANIA BERGIA LANNING BRYER SHELDON BURSHTEIN ROBERT CAMERON JANE F. COLLEN THEODORE H. DAVIS JR. ANNE DESMOUSSEAUX MEGHAN DILLON THOMAS F. DUNN SCOT DUVALL CLAUS M. ECKHARTT SHEJA EHTESHAM KAREN L. ELBURG MATTHEW EZELL NEMESIO FERNANDEZ-PACHECO SALVADOR FERRANDIS ALFRED FRAWLEY ALEX GARENS ALEXANDRA GEORGE DANIEL GLAZER ANDREW J. GRAY IV LESLEY MCCALL GROSSBERG

ANN LAMPORT HAMMITTE GUY HEATH ANNE HIARING HOCKING JANET L. HOFFMAN GANG HU DOMINIC HUI AHMAD HUSSEIN BRUCE ISAACSON AGLIKA IVANOVA E. DEBORAH JAY FENGTAO JIANG HE JING MARIA JOSE JIRON BENDANA SIEGRUN D. KANE SUSAN J. KERI MIKE KEYES ROLAND KUNZE JOI MICHELLE LAKES SCOTT LEBSON NELS LIPPERT MARCUS LUEPKE J. THOMAS MCCARTHY NANCY A. MILLER GEORGE W. MOXON JOHN M. MURPHY PAUL MUSSELL SADAF NAKHAEI

SAURABH NANDREKAR AMANDA NYE JENIFER DEWOLF PAINE JEREMY B. PENNANT NEAL PLATT MICHIEL RIJSDIJK RACHEL RUDENSKY JEREMY SCHACHTER MATTHEW R. SCHANTZ MARTIN SCHWIMMER JENNIFER SICKLER AARON SILVERSTEIN GIULIO ENRICO SIRONI WENDI E. SLOANE JERRE B. SWANN, JR. SCOTT THOMPSON CHINASA UWANNA ANJALI VALSANGKAR EDWARD E. VASSALLO MARTIN VIEFHUES CHARLES WEBSTER JORDAN WEINSTEIN JOHN L. WELCH JOSEPH WELCH BRYAN K. WHEELOCK JOSEPH YANG

Advisory Board MILES J. ALEXANDER WILLIAM M. BORCHARD CLIFFORD W. BROWNING LANNING G. BRYER SANDRA EDELMAN ANTHONY L. FLETCHER ARTHUR J. GREENBAUM

ROBERT M. KUNSTADT THEODORE C. MAX JONATHAN MOSKIN VINCENT N. PALLADINO JOHN B. PEGRAM ALLAN S. PILSON

ROBERT L. RASKOPF PASQUALE A. RAZZANO SUSAN REISS PIER LUIGI RONCAGLIA HOWARD J. SHIRE JERRE B. SWANN, SR. STEVEN M. WEINBERG

The views expressed in The Trademark Reporter are those of the individual authors and do not necessarily reflect those of INTA. The Trademark Reporter (ISSN 0041-056X) is published electronically six times a year by the International Trademark Association, 655 Third Avenue, New York, NY 10017-5646 USA. INTA, the INTA logo, INTERNATIONAL TRADEMARK ASSOCIATION, POWERFUL NETWORK POWERFUL BRANDS, THE TRADEMARK REPORTER, and inta.org are trademarks, service marks, and/or registered trademarks of the International Trademark Association in the United States and certain other jurisdictions.

776 Vol. 107 TMR

COMMENTARY

C-O-P-Y-R-I-G-H-T: WHAT DOES THAT SPELL? STAR ATHLETICA v. VARSITY BRANDS

REIMAGINES PROTECTION FOR USEFUL ARTICLES

By Jonathan E. Moskin∗

I. INTRODUCTION Under Section 101 of the U.S. Copyright Act, “the design of a

useful article . . . shall be considered a [protectable] work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”1 On March 22, 2017, in Star Athletica, LLC v. Varsity Brands, Inc., 2 for the first time since the passage of the 1976 Copyright Act and for the first time since its 1954 decision in Mazer v. Stein,3 the United States Supreme Court shined a new light on how to analyze copyrightability of original designs integrated into useful articles—one that may provide new opportunities to protect creative designs that until now had been subject to possible protection only under design patent or trade dress law.

Mazer v. Stein held that a dancing figurine incorporated into a lamp base could be protected under copyright insofar as it was “separable” from the utilitarian aspects of the lamp, and since then courts have struggled with how to separate fanciful form from function in a wide array of industrial designs. Indeed, the lower courts in Star Athletica articulated nine different tests of physical

∗ © Jonathan E. Moskin 2017. Partner, Foley & Lardner LLP, New York, New York, Associate Member, International Trademark Association; former Editor-in-Chief, The Trademark Reporter. 1. The full text reads:

Such works include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic or sculptural work only if, and to the extent that, such design incorporates pictorial, graphic or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.

17 U.S.C. § 101. 2. 580 U.S. __ (2017). Cited herein to the pages of the slip opinion, as “slip op. __.” 3. 347 U.S. 201 (1954).

Vol. 107 TMR 777 or conceptual separability employed by courts (or scholars) that give different weight to different aspects of designs.4

The Supreme Court has now clarified that designs incorporated in useful articles are copyrightable if the feature for which copyright protection is sought would have been eligible for protection if it could be imagined as having originally been fixed independently as something other than the useful article at issue. More specifically, the new test is that: “an artistic feature of the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article.”5 The Supreme Court explained further: “The ultimate separability question, then, is whether the feature for which copyright protection is claimed would have been eligible for copyright protection as a pictorial, graphic, or sculptural work had it originally been fixed in some tangible medium other than a useful article before being applied to a useful article.”6

In adopting this new test, the Court expressly abandoned the distinction between physical and conceptual separability.7 In doing so, the Supreme Court disagreed with Star Athletica’s (and the Government’s) argument that separability requires both (a) that the claimed features stand alone, apart from the useful article, as copyrightable and (b) that the article remain equally useful without those features. Instead, the claimed copyrightable features can share in some part of the function of the overall article and the remaining features need not be fully functional without them.8 Said the Court: “An artistic feature that would be eligible for copyright protection on its own cannot lose that protection simply because it was first created as a feature of the design of a useful article, even if it makes that article more useful.”9

As explained below, the Star Athletica test raises interesting questions and intriguing possibilities for a range of designs, not only for apparel (such as the cheerleading uniforms at issue in Star Athletica), but also (possibly) for fashion more broadly, and for other contemporary designs—such as furniture, houseware, and a range

4. Star Athletica, LLC v. Varsity Brands, Inc., 799 F.3d 468, 484-85 (6th Cir. 2015). 5. Star Athletica, slip op. 17. 6. Star Athletica, slip op. 8. Justice Thomas also noted that this new test is the mirror image of the exclusive right to make copies set out in 17 U.S.C. § 113(a), which “includes the right to reproduce the [copyrighted] work in or on any kind of article, whether useful or otherwise.” Slip op. 8. 7. Star Athletica, slip op. 15. 8. Id. at 12-14. 9. Id. at 14.

778 Vol. 107 TMR of other industrial designs. Historically, it has, of course, been possible to protect some such designs under design patent, which permits protection for the “new, original and ornamental design for an article of manufacture,”10 or the Lanham Act, which affords protection to non-functional designs that have acquired secondary meaning.11 Although the Supreme Court made no mention of trade dress protection under the Lanham Act or the differing burdens of proving infringement under the different statutory regimes,12 it expressly acknowledged that “design patent and copyright are not mutually exclusive.”13 I In so doing, the Court acknowledged that some patentable industrial designs will also satisfy the copyright separability test, and as shown below in regard to Justice Breyer’s dissent, implied there will now be expanded opportunities to protect designs under more than one statutory regime.

From Cheerleading to Fashion To understand Star Athletica’s potential significance, some

background is helpful, beginning with clothing. Clothing designs have been particularly problematic to protect, given that the garment itself (including its cut, shape, style and dimensions) has long been considered to be utilitarian (and hence not protectable) because of the function of a garment itself (“such as warmth, protection and modesty”14). Copyists have been deemed free as well to advertise to the public (truthfully and non-misleadingly) that they have copied.15 Design aspects of apparel, such as shape, cut, fit, and dimensions, typically have come up short of the standard for copyrightability of elements of useful articles.16 For instance, Galiano v. Harrah’s Operating Co. held unprotectable designs of uniforms for casino workers—including buttons, pleats, and collars. 10. 35 U.S.C. § 171(a). This, of course, requires that the design be novel and nonobvious, 35 U.S.C. §§ 102, 103, which is a stricter standard than originality under copyright (which principally requires only that the design not have been copied). Nor is protection available for functional designs. Protection is also statutorily limited to a term of 15 years (or 14 years for patents filed before December 18, 2013). 35 U.S.C. § 173. 11. 15 U.S.C. § 1125(a)(3); Wal-Mart Stores v. Samara Bros., 529 U.S. 205, 214-215 (2000). 12. Broadly speaking, copyright infringement requires proof of actual copying (which can be satisfied upon proof of access and substantial similarity), and the Copyright Act defines infringement under a statutory rubric of protected rights, 17 U.S.C. § 106. By contrast, (again, broadly speaking) design patent infringement requires proof the accused design is substantially the same as the original as viewed by an ordinary observer. Gorham Co. v. White, 81 U.S. 511 (1871). And trade dress infringement turns on proof of likelihood of consumer confusion. 13. Star Athletica, slip op. 17. 14. Compendium of U.S. Copyright Office Practices § 924.3(A) (3d ed. 2014). See also Fashion Originator’s Guild v. FTC, 114 F.2d 80 (2d Cir. 1940), aff’d, 312 U.S. 457 (1941). 15. Societe Comptoir v. Alexander’s Dep’t Stores, Inc., 299 F.2d 33 (2d Cir. 1962). 16. 416 F.3d 411 (5th Cir. 2005).

Vol. 107 TMR 779 So too, Jovani Fashion, Ltd. v. Fiesta Fashions17 found wanting the arrangement of decorative features on a prom dress.18 Consistent with many earlier attempts to legislate protection for clothing designs cited in Star Athletica,19 recent efforts to stitch together limited rights under the Design Piracy Prohibition Act20 ultimately unraveled.

On the other hand, fabric patterns and surface ornamentation on garments often are sufficiently separable from the function itself of the fabric or the garment to warrant copyright protection. Two-dimensional fabric designs and appliques applied to the surface of apparel routinely have been deemed protectable. For instance, Knitwaves, Inc. v. Lollytogs Ltd.21 upheld protection of artwork applied to the surface of sweaters, and Folio Impressions, Inc. v. Byer Cal.22 resolved this thorny issue by finding copyrightable a rose design pattern for fabric.

Three-dimensional features have also won protection. Costumes (which could be seen as analogous to cheerleader uniforms as they entail a certain form of role-playing), have occupied a middle ground. They are a form of apparel but often incorporate original individual design elements that are physically or conceptually separable from the utilitarian purpose of clothing the human body and hence satisfy (or all-but satisfy) prior copyright standards for protection. Masquerade Novelty, Inc. v. Unique Indus., Inc.23 thus found no inherent utility in features of “nose masks” resembling elephant, pig, or parrot proboscises. Chosun Int’l, Inc. v. Chrisha Creations, Ltd.24 similarly held that the sculpted heads on a Halloween costume design were separable from the garment’s functional aspects. Yet, less heady for costume designers was Whimsicality, Inc. v. Rubies Costume Co.,25 where the court noted that “clothes are particularly unlikely” to be separable and copyrightable because the “decorative elements that stand out are intrinsic to the decorative function of clothing.” Indeed, the 17. 500 F. App’x 42 (2d Cir. 2012). 18. By contrast, Kieselstein-Cord v. Associates by Pearl, Inc., 632 F.2d 989 (2d Cir. 1980), reversed a finding of functionality, agreeing that belt buckles as such are not copyrightable but finding sufficient sculptural detail in plaintiff’s designs to warrant protection. And, Poe v. Missing Persons, 745 F.2d 1238, 1238 (9th Cir. 1984), reversed summary judgment, finding factual issues as to whether the item was a useful article in the form of a swimsuit or a work of art, questioning “whether a person wearing this object can move, walk, swim, sit, stand, or lie down without unwelcome or unintended exposure.” 19. Star Athletica, slip op., dissent at 8 (Bryer, J. dissenting). 20. H.R. 2033, also introduced as S. 1957. 21. 71 F.3d 996 (2d Cir. 1995). 22. 937 F.2d 759 (2d Cir. 1991). 23. 912 F.2d 663 (3d Cir. 1990). 24. 413 F.3d 324 (2d Cir. 2005). 25. 891 F.2d 452, 455 (2d Cir. 1989).

780 Vol. 107 TMR registrant’s effort to make an end run around the principle by characterizing a Halloween costume as “soft sculpture” was found fraudulent. The court did note, however, without deciding, that plaintiff “could have acknowledged in its applications that the articles in question were costumes and requested registration for only the features it claimed were separable.” Id.

The parties in Star Athletica could not agree whether the designs of the cheerleader uniforms at issue (familiar elements such as chevrons, lines, curves, stripes, angles, diagonals, inverted Vs, and other shapes common to cheerleader uniforms), were best viewed as part of the garments as such or, more accurately, should be seen simply as two-dimensional designs appearing on the garments. The district court sided with the defendant, Star Athletica, that the designs were so closely interwoven with the utilitarian functions of the uniforms as to be inseparable from the things themselves, explaining that the design elements were so widely used as to be inseparable from the very idea or essence of what it is to be a cheerleading uniform.26 The Sixth Circuit disagreed, noting that it was quite possible to conceive of cheerleader uniforms without stripes, chevrons, inverted Vs, and so forth, and explaining, moreover, that plaintiff Varsity’s claimed designs could be transferred to other media or other apparel (hence cutting the thread and demonstrating separability).27

The Supreme Court avoided this distinction entirely, beginning its analysis by rejecting the appellee/copyright owner’s argument that there was no need to analyze the uniforms themselves because the designs were merely surface ornamentation and thus “inherently separable.”28 Justice Thomas instead found that the literal text of Section 101 of the statute (including the dictionary definition of “design”) required a separability analysis for any features “incorporated into the ‘design of a useful article.’”29 Yet, what the Court actually did in then adopting a more abstract

26. Varsity Brands, Inc. v. Star Athletica, LLC, No. 10-2508, 2014 U.S. Dist. LEXIS 26279 at *24-25 (W.D. Tenn. Mar. 1, 2014). As demonstrated by the district court decision, a further factor evidently influencing the reasoning in Star Athletica is the widespread use of the design elements at issue (chevrons, inverted Vs, diagonals, stripes, and so forth) that the court deemed part of the platonic essence of what it is to be a cheerleading uniform. 2014 U.S. Dist. LEXIS 26279 at *2. Indeed, it appears that the district court (and the defendant, Star Athletica) allowed the scenes a faire doctrine to bleed into the analysis of functionality. Under the scenes a faire doctrine, of course, widely used themes that are necessary for any creative work in any given field of art are granted little or no protection. The Sixth Circuit, by contrast, was less impressed by the commonality of design features to cheerleading in general in assessing copyrightability. On remand from the Supreme Court, the lower courts may yet find that the design in question, while copyright-eligible because it is separable, is not copyrightable for lack of sufficient originality. 27. Star Athletica, 799 F.3d at 493. 28. Star Athletica., slip op. 5. 29. Id.

Vol. 107 TMR 781 analytical process was essentially to facilitate and broaden the appellee/copyright owner’s argument. Precisely because the colors, stripes, chevrons, and other shapes were essentially surface ornamentation, it was a simple matter to imagine them in another format, as the Court did, such as in a two-dimensional painting.30 As shown below (and as amplified by Justice Breyer’s dissent), this may clothe with copyright protection a wider range of designs than previously possible.

Applied narrowly to the goods at hand, namely apparel, the decision is likely to confirm the copyrightability of surface ornamentation applied to clothing in general (removing the uncertainties revealed by the differing opinions of the district and circuit courts on this issue). One can also anticipate that costumes (such those at issue in Masquerade Novelty, Chosun Int’l, and Whimsicality or otherwise having non-functional sculptural or three-dimensional elements that do not correspond to the human form) will be protected. But it is less likely to have a meaningful impact on clothing designs as such (for instance, the cut or shape of the garment itself as contemplated by the proposed Design Piracy Prohibition Act and several similar pieces of failed attempted legislation recited by the Court).31 However, while it may still be difficult to imagine many such features of clothing designs as existing independently of the useful article, as Justice Breyer lamented in dissent, the copyright owner Varsity seemingly was able “to do indirectly what it cannot do directly: bring along the design and cut of the dresses by seeking to protect surface decorations whose ‘treatment and arrangement’ are coextensive with that design and cut.”32 Some such elements of clothing may yet win protection.

Moreover, as noted below, the Star Athletica imagination test may permit other industrial designs (heretofore thought of as potentially protectable primarily by design patent or as trade dress) to enjoy protection under the cloak of copyright.

Beyond Fashion: Further Implications To understand the further implications of the new

“imagination” test, consider the tension between the majority decision and Justice Breyer’s dissent. Justice Breyer insisted that the design must be capable of existing independently of the useful article as a separate artistic work, whereas imagining the stripes, chevrons, and other shapes on the cheerleader uniform at issue still entailed imagining a cheerleader uniform because “the design is not

30. 30 Id. at 10. 31. Id. at 16-17; dissent at 8 (Bryer, J. dissenting). 32. Id., dissent at 11 (Bryer, J. dissenting).

782 Vol. 107 TMR separable from the utilitarian aspects of the object to which it relates.”33 The designs are part of the very shape of the utilitarian object and would retain that shape and format even if imagined separately and “necessarily bring along the underlying useful article.”34

Focusing on the Thomas test of “whether the design can be imagined as a ‘two-or three-dimensional work of art,’” Justice Breyer posited that “virtually any industrial design can be thought of separately as a ‘work of art.’”35 Although the majority did state that something more than bare “replicat[ion]” of utilitarian articles would be needed,36 as Justice Breyer construed the majority holding, any number of useful articles nonetheless could be imagined as independent works of art, a point graphically demonstrated by Marcel Duchamp’s “ready-mades” art series designating as art “functional mass-produced objects” such as a generic snow shovel37 (shown below).

Marchel Duchamp’s In Advance of the Broken Arm

33. Id., dissent at 5 (Bryer, J. dissenting). 34. Id., dissent at 5-6 (Bryer, J. dissenting). 35. Id., dissent at 6-7 (Bryer, J. dissenting). 36. Slip op. at 7. 37. Id., dissent at Appendix (Bryer, J. dissenting).

Vol. 107 TMR 783

One also then thinks of Claes Oldenburg’s pop art depictions of a giant three-way plug (see below),38 clothespin, typewriter eraser, and other familiar objects.

Claes Oldenburg’s Giant Three-Way Plug (Cube Tap)

As Justice Breyer mused: “What design features could not be imaginatively reproduced on a painter’s canvas?”39 So, too, by a sculptor’s hand. To be sure, it is hardly clear that Justice Thomas had in mind extending protection quite so far. Indeed, the majority clarified that simply “replicating” utilitarian articles as art would not qualify: “Of course, to qualify as a pictorial, graphic, or sculptural work on its own, the feature cannot itself be a useful article or ‘[a]n article that is normally a part of a useful article’ (which is itself considered a useful article). §101. Nor could someone claim a copyright in a useful article merely by creating a replica of that article in some other medium—for example, a cardboard model of a car.”40

Nonetheless, the very tension that exists between the majority and minority views suggests there will be new opportunities to claim copyright in subject matter that previously would not have qualified under Mazer v. Stein. Indeed, within days of the decision, a complaint was filed specifically citing Star Athletica in the pleading and seeking copyright protection in footwear designs (one of which

38. Claes Oldenburg’s pop art depiction of a giant three-way plug. Photograph © Mary Ann Sullivan, Lima OH 45805 http://www.bluffton.edu/~sullivanm/. 39. Star Athletica, slip op., dissent at 7 (Bryer, J. dissenting). 40. Id., dissent at 7 (Bryer, J. dissenting).

784 Vol. 107 TMR was already protected under design patent).41 As Justice Breyer cautioned, “great industrial design may well include design that is inseparable from the useful article—where, as Frank Lloyd Wright put it, ‘form and function are one.’”42 No doubt in response to Justice Thomas’s acknowledgment, noted above, that “design patent and copyright are not mutually exclusive,” Justice Breyer further cautioned that “Where they are one, the designer may be able to obtain 15 years of protection through a design patent . . . not . . . a century or more of copyright protection.”43

How freely will courts now be permitted to “imagine” separability? If Justice Breyer is correct, the majority decision will allow considerably more freedom than the courts have exercised to date. Consider modern furniture. Many furniture designs are deemed sufficient aesthetic achievements that they are often themselves admitted to design museums such as MoMA, which in a very literal way would satisfy Justice Thomas’s test of whether the design “would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separate from the useful article.” For instance, even if the following table designs cannot be separated from the tables themselves, because they can be imagined as works of art, can they not support a claim of copyright . . . along with breakfast or dinner?

Coffee Table, 1944, by Isamu Noguchi44

41. Puma SE v. Forever 21, Inc., 2:17-cv-02523 (C.D. Cal. filed Mar. 31, 2017). 42. Star Athletica, slip op., dissent at 7 (Bryer, J. dissenting) (citing F. Wright, An Autobiography 146 (1943) (reprint 2005). 43. Star Athletica, slip op. dissent at 7 (Bryer, J. dissenting). 44. Coffee Table, 1944 (manufactured 1947–1973, 1984–present). Isamu Noguchi. Wood, plate glass. Photograph ©The Isamu Noguchi Foundation and Garden Museum, New York /ARS. Photo by Kevin Noble.

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Rising Table design by Robert van Embricqs45

RD Table by Camiel Weijenberg46

45. Rising Table design and photograph courtesy of Robert van Embricqs. 46. RD Table by Camiel Weijenberg. American walnut, stainless steel. Photograph courtesy of Weijenberg, Singapore.

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RNI table design by Chulan Kwak47

In short, the test of copyrightability for the lamp in Mazer v. Stein has now been recast in a softer light, one in which the line between copyright and industrial design has become less sharp and more susceptible to imaginative reinvention. Without even considering the possible adverse impact the decision might have by expanding potential liability, how far courts will allow fashion or industrial designs to be reimagined as works of art remains to be seen, but the Supreme Court has provided at least some reason for such designers (and imaginative counsel) to cheer.

47. RNI table design and photograph courtesy of Chulan Kwak.