Hinging on the Definition of “Orderly”: Copyright Holder Faces Losing Option to Enforce Registered Work

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The 7th Circuit Court of Appeals recently vacated a judgment against a sculptor in which copyright protection for one of her works was denied based on the form of her application. In a decision from Chief Judge Easterbrook, the district court’s ruling was vacated and the case was remanded for further consideration on the issue of whether the copyright registration was “orderly.”

In Neri v. Monroe, artist Quincy Neri designed a 60-piece glass-blown sculpture titled “Mendota Reflection” for Linda Hughes. Hughes had hired several contractors to perform renovations to the foyer of her condominium. The sculpture was hung from the ceiling and a lighting specialist was hired to assist with the installation. A photographer was retained to document the entire renovation project. The architecture firm, lighting designer and photographer all posted pictures of the project on their individual websites, some of which included the sculpture. Images of the sculpture were also used in an application for an architectural award. Neri opposed all of these uses citing her copyright registration.

A copyright automatically issues when a work exists in a fixed medium, but litigation to enforce a copyright cannot be undertaken unless a valid registration exists. Neri filed a received a valid registration from the Copyright Office and thus, claimed the right to enforce it.

U.S. Magistrate Judge Stephen Crocker of the Western District of Wisconsin dismissed Neri’s case stating that she lacked a valid copyright. Neri’s copyright application was filed as a work in a collection of works. In order to qualify as a collection, the submission must be in an “orderly form.” Neri’s copyright application contained a booklet of photos. Some loose photographs, among which was a picture of this particular sculpture, accompanied the booklet but were not inserted into it. The district court’s decision to dismiss Neri’s case turned on the determination that her submission was inadequate as a collection because it was not “orderly.”

In the decision issued on August 12, 2013, Chief Judge Easterbrook pointed out areas of concern in the case. “We have found several discussions of registration under §202.3(b)(4)(i)(B), but none of these tackles the ‘orderly form’ question.” The booklet and additional photos were not entered into evidence, so they were not directly viewed by the district judge nor were they available to the judges considering the case on appeal adding an additional level of complication to the case. Neri asserted in her argument before the appellate panel that a photograph of the sculpture in question was present in the booklet submitted with her copyright application. He also discussed the difficulty in determining whether or not “Mendota Reflection” referred to a specific work or a series of works without adequate visual evidence.

The defendants also claimed that Neri was not the actual author of the sculpture. She decided what colors and shapes would be used, decided the positioning of each piece and provided molten glass as needed to complete the work. But, she hired a glass blower to create around 60 of the glass pieces used in the sculpture. Easterbrook shot down this argument stating that “defendants might as well say that the typesetter owns a book’s copyright or that the members of an orchestra who play a new composition using their own interpretations of the score become the music’s authors.” While Neri’s copyright covered the entire resulting work, the glass blower may have a claim to any features that he added to the work.

The defendants also claimed that they assisted in making decisions concerning the colors used and the placement of the pieces within the sculpture, giving them a joint authorship argument. Neri denied the claim and the appellate panel did not attempt to resolve this issue.

The 3-judge panel discussed on appeal whether the other parties could assert a “fair use” defense as to their own involvement with the installation of the sculpture. Easterbrook pointed out that the architectural firm and the lighting designer would have a difficult, maybe impossible time, of trying to document and display their own participation in the renovation without also displaying the sculpture or other aspects of the area that they were not directly responsible for creating. This argument will likely be revisited by the district court.

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