Thomasville v. Kaminstein – Copyright in Furniture

Recently, Brian Frye posted a picture to Instagram of a piece of furniture with a 1959 copyright notice.  I found this interesting but not entirely surprising, as Mazer v. Stein had come down a few years earlier and companies were presumably testing the boundaries of conceptual severability and design protection

I tried searching for the registration in the Catalog of Copyright Entries to no avail, but did find a tidbit in the Annual Report of the Register of Copyrights for 1969:

An action for declaratory judgment and
mandatory registration was filed on August 7,
1968, against the Register of Copyrights, in
the U.S. District Court for the District of
Columbia The suit, Thomasville Furniture
Industries, Inc. v. Kaminstein, Civil Action
No. 1959-68, concerned eight applications for
registration of claims to copyright in three-dimensional
designs applied to articles of furniture.
The Copyright Office had rejected the
claims on the grounds that the works revealed
nothing identifiable as “a work of art” within
the meaning of the copyright law. On September
26 the Department of Justice, on behalf
of the Register, filed an answer. On January 3,
1969, the case was brought to a close when the
plaintiff fled a stipulation dismissing the case
with prejudice.

With knowledge of the case in hand, I was able to get the case file from the National Archives.  It’s fairly short at 20 pages, and the interesting parts are the complaint and answer – and especially the copy of the letter denying the copyright registration.  In short, the Copyright Office held that a design for furniture was not copyrightable.  For this interested, I believe this is the Thomasville Allegro Desk that was among the eight Thomasville sought to register for copyright.  After the answer was filed Thomasville voluntarily dismissed the case, so no adjudication was ever made by the court.

In recent years there’s been a drift away from this position, as this article from INTA exemplifies.  The Star Athletica decision has been taken as further evidence of a shift to allowing copyright to protect design.  I try to avoid saying which approach is correct here, but I do think the progression of the law is interesting.

One interesting wrinkle – the copyright notice Brian found says 1959, but the denied registration and appeal were in 1968 – is it possible that in 1959 they applied a copyright notice but hadn’t filed the registration application, and the furniture in this photo wasn’t strictly related to the 1968 action?

Archival Adventures: Saving ASCAP’s Library

As folks who follow this blog know, I’ve been engaged in a semi-successful effort to track down transcripts of Supreme Court oral arguments related to IP from before they started recording audio in OT 1955.  One organization that I figured would have a couple of such transcripts, including from the foundational 1917 case of Herbert v. Shanley, was the American Society of Composers, Authors, and Publishers, or ASCAP.

The invaluable Dean Kay, author of the Dean’s List email many of you already receive daily, brokered the connection with ASCAP’s Senior VP Richard Reimer, who informed me that ASCAP was moving offices shortly, and I should move fast.  Upon arriving at ASCAP’s (former) offices, it was made clear to me that they wouldn’t have room for their library in their new offices, and it needed a new home.  About half the books were already boxed up, and I boxed up about 10 more boxes, loaded everything into the car, and drove it down to the Jacob Burns Library at the George Washington University School of Law, where I’d arranged for the books to join the collection.  The Law Library put up a nice piece about the collection here.

At first glance, one volume of particular interest to the broader public is the one related to Nathan Burkan’s defense of Mae West on charges of obscenity related to her play The Pleasure Man.  There’s a nice writeup of the story here, which I won’t repeat.  However, I have scanned the entire section of the book related to the Mae West and put it online (I didn’t scan the rest, dealing with People v. Joseph Flinn – there’s only so many hours in the day).  It’s available here, and it includes legal arguments about cross-dressing not being obscene as well as a complete draft affidavit for Mae West’s signature detailing the entire history of the production.

Below the jump I’ve included a list of the cases which have papers included in the ASCAP collection now at the GW Law Library.  This list is not complete and is just meant to help those looking for information on a particular case.

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Tracking Accuracy in Copyright Records – A Case Study

A few weeks ago, Joseph Felcone emailed me to ask about helping with a mystery in the copyright records he’d been investigating, and asked if I’d help.  For folks not in the know, Joe is an expert on New Jersey books and publishing, and the author of a number of wonderful books on the subject – including a recent catalog of all New Jersey copyright registrations from 1791-1870, which all fine libraries should own (if unsure if your library is truly fine, order a copy from Joe to cement such status).

Joe was trying to determine information about A Member of Congress. A Novel. By William Wentworth (New York: G. W. Dillingham, 1898).  He’d already figured out a fair bit of what I discuss below, but I think the process of figuring out the information is informative, because it tells us about how inaccuracy and uncertainty can creep into the copyright records.  The story continues below.

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