As folks who read this blog have doubtless heard, the Supreme Court recently decided the “Cheerleader Case” of Star Athletica v. Varsity Brands, which is the first case to seriously examine the Useful Articles doctrine in copyright since the Mazer v. Stein decision from 1954. I blogged about Mazer v. Stein around the time of the oral argument in Star Athletica, sharing the transcript of argument from both the Supreme Court and District Court. However, Sy Damle tweeted this, and it inspired me to double-check (and share) the actual statutes whose copyrightability was at issue in Mazer v. Stein:
Star Athletica dissent refers to Mazer lamp base as a "ballet" dancer… it is usually described as a "Balinese" dancer. Here's the deposit: pic.twitter.com/a2OxYRHIB8
— Sy Damle (@SyDamle) March 22, 2017
And Sy is right…people were talking about the figure at issue in Mazer v. Stein as a “Balinese” dancer as early as the 1950s. Stein maintained a fairly extensive catalog of statuettes that also functioned as lamp bases (PDF, 7 MB, my scan), and was involved in a number of seperate cases, one of which led to the Supreme Court decision in Mazer v. Stein. However, looking at the original complaint in Mazer, none of the six at issue is a Balinese dancer; as Sy and I realized, the Balinese dancer was actually at issue in Stein v. Expert Lamp, where the District Court and 7th Circuit held that the lamp base was not eligible for copyright prior to being de facto overruled by the Mazer decision. A Petition for Write of Certiorari of certiorari had been filed in by Stein in the Expert Lamp case in 1951 (so two years before the Mazer cert petiton was filed) but denied – the circuit split likely was not ripe yet.
There’s an interesting story here about how mistakes propagate in the literature. The first mention of a statutette of a Balinese dancer being at issue in Mazer was in a note in the Cornell Law Quarterly, 39 Cornell L. Q. 725 (1953-1954), which asserted that all the cases involved by Stein involved essentially the same facts, not realizing that Stein had designed many lamps and different lamps had been copied by different competitors. The assertion that Mazer was about Balinese dancers was repeated in the January 1955 issue of the Harvard Law Review, 68 Harv. L. Rev. 489, 517 (1954-1955). The June 1954 Issue of the ABA Journal also stated that Mazer was about a statuette of a “Bali Dancer.” The note didn’t cite any authority for this proposition, but the line about it being a Balinese dancer would be steadily repeated over time until it became canon. In 1977 Melville Nimmer, author of the leading treatise on copyright, repeated this line about the Balinese Dancer in his widely cited article The Subject Matter of Copyright under the Act of 1976, 24 UCLA L. Rev. 978 (1977).
In each case citation was only made to the reported decision in Mazer v. Stein, which has no comment about what sort of human figure was on the lamp base. However, the appellate record contains a details on the works at issue, and the transcript of the argument before the Supreme Court shows that the figure of a female ballet dancer was actually brought to the Supreme Court for the argument. I’ve reproduced the listings of images at issue in Mazer v. Stein with images of the statuettes at issues (along with copyright registration numbers and dates – all taken from the complaint) below the jump:
Curved Ballet Dancer—Male, H 1721, July 15, 1949
Curved Ballet Dancer—Female, H 1723, July 15, 1949 (I shared this one previously)
Curved Dancers with Textured Clothes— Female Full Figure, H 1717, July 10, 1950
Curved Dancer with Textured Clothes— Male Full Figure, H 1724 July 10, 1950
Egyptian Dancer—Female, CIH 1738, January 25, 1950
Egyptian Dancer—Male, CIH 1737, January 25, 1950