A Short & Happy Guide to Copyright by Michael Murray

Author:Michael Murray
Language: eng
Format: epub
ISBN: 9781683289401
Publisher: West Academic
Published: 2017-04-10T04:00:00+00:00

A similar claim was alleged and litigated in Inhale, Inc. v. Starbuzz Tobacco, Inc. This case, too, predates Varsity Brands, but the outcome is supported by the later Supreme Court opinion. In Inhale, Plaintiff Inhale, Inc. claimed copyright protection for the shape of a hookah water container it registered with the U.S. Copyright Office in 2011. Plaintiff claimed that Defendant Starbuzz sold hookah water containers identical in shape to plaintiff’s container. Both plaintiff and defendant agreed that plaintiff’s hookah water container is a “useful article,” but differed on whether the shape of the bottle is a sculptural feature that can be identified separately from, and is capable of existing independently of, the utilitarian aspects of the container. It is important to note that Inhale’s container had the skull and cross-bones design on it, and Starbuzz’s container did not; thus, the claim was not about the ornamental design on Inhale’s container, but only the shape of the container. 91

The Ninth Circuit relied on (1) Ets-Hokin v Skyy Spirits, Inc. [discussed above in Chapter 4, on scènes à faire and merger], which held that the shape of a vodka bottle was not separable from its utilitarian features, and (2) the Copyright Office’s reasoning that an item’s distinctive shape does not suggest separability as a separate work of 3-D art, when the shape of the bottle and the shape of any sculptural work of art imagined separately from the bottle would be the same. In both the actual form and the imagined form, Inhale would have produced the same useful article, and therefore, the shape of its bottle was not separable and not copyrightable.

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