In the US, copyright protects “original works of authorship fixed in any tangible medium of expression,” but is a work that moves “fixed” for purposes of the copyright law?
Earlier this year, the US Court of Appeals for the Ninth Circuit held that these types of sculptures can be considered to be “fixed” under the Copyright Act.
The plaintiff in the case, Tangle, Inc. (Tangle), has copyright registrations for several kinetic and manipulable sculptures. Each sculpture is made from a number of connected, 90-degree curved tubular segments that can be twisted to create many different poses.
Tangle sells replicas of its sculptures at authorized dealers, including the Museum of Modern Art’s Design Store.
The defendants, Aritzia, Inc., Aritzia, L.P., and United States of Aritzia, Inc. (Aritzia) own and operate retail stores in the US and Canada. In 2023, Aritzia decorated its retail-store windows with sculptures similar to those copyrighted by Tangle.
Aritzia’s sculptures were, however, substantially larger and taller, and were of a different color and finish than Tangle’s copyrighted works.
Tangle sued Aritzia for copyright infringement, arguing that, because its sculptures can be manipulated into different positions, its copyright extends to any configuration its sculptures can be manipulated into.
Aritzia argued that moveable sculptures, no matter how original, can be the subject of a valid copyright only in specific poses because they’re otherwise not “fixed in any tangible medium of expression.”
The lower court agreed with Aritzia, holding that Tangle was trying to copyright an “amorphous idea” rather than the concrete expression of that idea, and dismissed the case. Tangle appealed.
The Ninth Circuit disagreed with Aritzia and the lower court, pointing out that dance, movies, and music can be entitled to copyright protection despite involving motion.
The Court explained that, under the Copyright Act, a work is fixed in a tangible medium of expression when its embodiment in a copy “is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”
Here, said the Court, Tangle’s sculptures are material objects that can be “perceived” and “reproduced” for more than a “transitory” period, so Tangle’s registered copyrights are valid and protect its works across their full range of motion.
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Photos from decision of the US District Court for the Northern District of California
