74 F.3d 488 (4th Cir. 1996), 94-2139, Superior Form Builders, Inc. v. Dan Chase Taxidermy Supply Co., Inc.

Docket Nº:94-2139.
Citation:74 F.3d 488
Party Name:37 U.S.P.Q.2d 1571 SUPERIOR FORM BUILDERS, INC. Plaintiff-Appellee, v. DAN CHASE TAXIDERMY SUPPLY COMPANY, INCORPORATED; Dan Chase, Defendants-Appellants, and Lilly CHASE, Defendant.
Case Date:January 29, 1996
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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74 F.3d 488 (4th Cir. 1996)

37 U.S.P.Q.2d 1571




Chase, Defendants-Appellants,


Lilly CHASE, Defendant.

No. 94-2139.

United States Court of Appeals, Fourth Circuit

January 29, 1996

Argued July 12, 1995.

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[Copyrighted Material Omitted]

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ARGUED: Earle Duncan Getchell, Jr., McGuire, Woods, Battle & Boothe, Richmond, Virginia, for Appellants. Gregory Albert Giordano, Shuttleworth, Ruloff, Giordano & Kahle, P.C., Virginia Beach, Virginia, for Appellee. ON BRIEF: Amy T. Holt, Frank G. LaPrade, III, McGuire, Woods, Battle & Boothe, Richmond, Virginia, for Appellants. Lawrence H. Woodward, Jr., Shuttleworth, Ruloff, Giordano & Kahle, P.C., Virginia Beach, Virginia; F. Prince Butler, Griffin, Butler, Whisenhunt & Kurtossy, Arlington, Virginia, for Appellee.

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge MICHAEL and Judge MOTZ joined.


NIEMEYER, Circuit Judge:

The principal issue presented in this appeal is whether animal mannequins used by taxidermists to mount animal skins are copyrightable. The controversy centers around whether these mannequins are "useful articles" or "sculptural works" within the meaning of the Copyright Act, and if useful, whether their sculptural features are conceptually separable and thus copyrightable. We also must decide evidentiary and damage issues arising from the trial in the district court.

Because these animal mannequins were designed to portray the appearance of animals through artistic features introduced by the author in their creation, we hold that they are not "useful articles" as defined in the Copyright Act and that therefore copyright protection is available for them. Because we also reject the assignments of error attributed to the evidentiary and damage rulings, we affirm.


Superior Form Builders, Inc. ("Superior Form"), through its owner and president, Tommy Knight, creates and markets animal mannequins for mounting animal skins. Employing traditional sculpturing techniques, Knight creates the mannequins, using casts of actual animal carcasses as models. He begins by applying clay to an armature made of wood and actual animal bones and shaping the desired animal in a particular pose and with precise anatomical features. From the clay sculpture, he makes a fiberglass mold and uses it to produce polyurethane forms, i.e. the animal mannequins. The mannequins contain special receptacles for artificial eyes,"ear butts" for the proper placement of animal ears, and pre-molded features for the application of artificial teeth.

Knight considers his mannequins to be a form of artistic expression and has entered several of his unadorned mannequins in art contests. Some have won awards.

Knight registered each of his mannequins with the United States Copyright Office and then assigned the copyrights to his company, Superior Form. Superior Form issued its first catalog with Knight's mannequins in December 1991.

In January 1992, Dan Chase Taxidermy Supply Co., Inc. ("Chase Taxidermy"), a Superior Form competitor, ordered four mannequins from Superior Form's catalog: an otter, two raccoons in different poses, and a deer. Dan Chase, the president and chief executive officer of Chase Taxidermy, used the name of a fictional company in placing the order because he feared that Superior Form would not send the forms otherwise. Chase Taxidermy also used pseudonyms in the past to obtain animal mannequins from other companies.

Chase Taxidermy used the four Superior Form mannequins to develop its own forms, making few or no modifications. After registering the mannequins as its own with the Copyright Office, Chase Taxidermy offered these mannequins for sale in its 1992-93 catalog and in each edition thereafter, with its own copyright notice attached.

Chase Taxidermy advertises that it is the largest taxidermy supply company in the world and offers over 3,000 forms for sale through its catalog. Although Chase Taxidermy developed many of its forms from competitors' mannequins, it represented in its initial catalogs that "each manikin in this catalog is legally copyrighted according to the law of the United States of America and any infringement will be vigorously prosecuted." In later catalogs, it warned, "Beware of looka-likes," and explained:

Practically everyone recognizes the fact that we are being copied by the desperate "copy cats" working overtime in an attempt to deceive the public and violate the rights of others.

In September 1993, Superior Form filed suit against Chase Taxidermy and Dan Chase alleging that the defendants (hereinafter "Chase") had infringed Superior Form's copyrights on the four animal mannequins

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that Chase had purchased from Superior Form. Lilly Chase, Dan Chase's wife, was also named a defendant, but she was subsequently dismissed because the court lacked personal jurisdiction over her. Superior Form's complaint sought equitable relief, statutory damages of $400,000, and attorneys fees and costs. Chase moved for summary judgment on the ground that Superior Form's mannequins are not copyrightable because they are "useful articles" that do not have separable and independent sculptural features. The district court denied the motion, ruling as a matter of law that the taxidermy mannequins are copyrightable since they have no utilitarian function other than portraying the appearance of an animal and that such a portrayal is "unquestionably a permanent artistic object."

The case proceeded to trial before a jury on the issues of whether Chase infringed Superior Form's copyrights and whether the infringement was willful. The jury returned a special verdict, finding in favor of Superior Form on all issues and awarding Superior Form the maximum statutory damages of $100,000 on each of the four works that Chase had copied. The district court denied Chase's motion for a new trial and, following a hearing, awarded Superior Form $74,104.50 in attorneys fees and costs. The court found that Chase had been involved in similar infringement suits for years and that only "substantial awards of damages as well as attorney's fees will deter Mr. Chase from continuing this willful and outrageous conduct." From the judgment entered, Chase appeals.


We turn first to the question of whether the Copyright Act affords Superior Form copyright protection for its animal mannequins.

The Copyright Act provides copyright protection for "original works of authorship fixed in any tangible medium of expression," including "sculptural works." 17 U.S.C. Sec. 102(a)(5). Copyright protection, which gives authors the exclusive right to use, publish, and sell their work, is intended "to promote the Progress of Science and useful Arts." See U.S. Const. art. I, Sec. 8, cl. 8.

The copyright is the author's right to prohibit the copying of the author's intellectual invention, i.e. the originality of an author's expression. Since individual expressions of ideas inevitably vary, the originality inherent in each author's expression is the essence of the proprietary interest protected. See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346, 111 S.Ct. 1282, 1288, 113 L.Ed.2d 358 (1991). Originality requires "independent creation plus a modicum of creativity." Id. Copyright protection is available even if the quantum of originality is minimal. Id. at 348, 111 S.Ct. at 1289.

But the public has a corollary interest against any grant of an undeserving monopoly. Thus, while the Copyright Act affords protection for originality inherent in authorship, it retains in the public domain the right to discover facts and exchange ideas freely. Thus, copyright protection does not extend to ideas or facts, see 17 U.S.C. Sec. 102(b), even if such facts were discovered as the product of long and hard work. A copyright "rewards originality, not effort." Feist, 499 U.S. at 364, 111 S.Ct. at 1297. It follows, therefore, that while authors are free to adopt ideas, narrate facts, and copy an original, they are not free "to copy the copy." Bleistein v. Donaldson Lith. Co., 188 U.S. 239, 249, 23 S.Ct. 298, 299, 47 L.Ed. 460 (1903).

Accordingly, an animal sculpture, even if realistic, is copyrightable as long as the work represents the author's creative effort. See, e.g., Kamar Int'l, Inc. v. Russ Berrie and Co., 657 F.2d 1059 (9th Cir.1981). Several sculptors may copy a deer, even the same deer, in creating a sculpture, and each may obtain copyright protection for his or her own expression of the original. See Rachel v. Banana Republic, Inc., 831 F.2d 1503 (9th Cir.1987). Such individual creative efforts inevitably possess some degree of originality. But when an author copies another author's work, he appropriates that author's propriety interest in the work, the author's individual expression.

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If, however, a person makes a casting rather than a sculpture of the deer, the effort introduces no originality into the product. Indeed, in such a case, the idea in the original and its expression in the casting are identical and inseparable because the mechanical process allowed for no possibility of originality, which is inherent in authorship. In such cases, copyright protection is not available. See Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir.1971) (holding that where idea and expression are indistinguishable, copying the expression would not be barred by copyright registration).

In this case, no one has seriously disputed the fact that Knight individually created sculptural works and thereby introduced originality into them. Even though his works realistically depict animals, they are not mere "castings" of animal carcasses. To the contrary, Knight constructs...

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