In New York City, white snow has started to fall, letting all New Yorkers know that winter has officially arrived. Along with snow, the winter also means the Rockefeller tree, Wollman rink, and one of our favorite things, the holiday window displays. On a recent viewing of this year’s offerings, I found myself at the Bergdorf Goodman windows, a place you can’t really miss if you’re hoping to get the full holiday window experience. There are a thousand incredible details to take in with each window, like the upside-down garden party that is defying gravity in the April Fool’s Day window, for example. But, as usual, I found myself fixated on not just the clothing, but also the mannequins that wore each outfit, too. The way each one perfectly complemented the outfit they were displaying without overshadowing the clothing, and yet without being totally forgotten. I found myself (embarrassingly) going on and on about this to others with me, to which one friend responded, “who cares about the mannequins?”
It is probably a valid question. But, in the spirit of holiday windows, I’m here to tell you that a recent court case proves that I’m not the only one who cares about the mannequins. Oz Mannequins (Oz), a mannequin design and production company doing business in both Australia and the United States, brought suit to protect its mannequins and is trying to convince a court to recognize that they deserve copyright protection.
A little background on the case: In 2012, a retail clothing chain named Maurices Inc. (Maurices) was looking to have two female mannequins, one plus-sized and one junior, created for its stores. Maurices sent out Requests For Proposals (RFPs) to various mannequin producers, including Oz and another mannequin design and production company based in New York called RPM. Oz was the company chosen for the job and went on to create the Bella and Brandy mannequin models, which were sold to Maurices in 2010 and into 2011. At some point in 2011, Maurices sent out another RFP, only this time, RPM was the successful bidder and the company created Jasmin and Susie, its own version of the junior and plus-sized mannequins requested. Owners of Oz viewed the Jasmin and Susie mannequins that RPM created in 2012, and, claiming that these two models were identical to Bella and Brandy, sent out cease and desist letters to RPM and Maurices. RPM subsequently brought suit seeking a declaration that the copyrights Oz held in the mannequins were invalid.
RPM claims that Oz’s “human mannequins are non-copyrightable ‘useful articles’ because they serve the sole purpose of displaying clothing.” As we’ve mentioned a time or two before, useful articles are generally not protected by copyright law. It is, however, possible for a useful article to receive copyright protection if the design includes features that can be separated from the utilitarian aspects of the article.
Case law on the issue of copyright protection with respect to mannequins, and specifically on the issue of separability, goes both ways. One case in the Second Circuit found that copyright law does not protect human torso mannequins because the mannequins were strictly useful articles and the “aesthetic and artistic features” of the mannequins were “inseparable from the forms’ use as utilitarian articles.” Conversely, in a case involving taxidermy mannequins, the District Court for the Northern District of New York considered things like pose, attitude, muscle structure, and skin wrinkles to ultimately conclude that making decisions on such things "reflect[s] the designer's artistic judgment exercised independently of functional influences” and thus the mannequins were eligible for protection.
Likely hoping that the same logic from the taxidermy case will apply here, Oz has argued that the company’s mannequins contain conceptually separable elements, like the twist of a foot or a hip and the swing of an arm. These elements, Oz argues, require input and artistic judgment from the sculptor and serve a purpose beyond the utilitarian function of displaying clothing.
Even if this argument is accepted, RPM also argues that the merger doctrine prevents copyright protection here because there are only so many ways that the idea of a human mannequin can be expressed. Copyright protection only protects the expression of an idea, not the idea itself. However, where there are only a limited number of ways that a certain idea can be expressed, the expression of the idea actually merges with the idea and both are ineligible for copyright protection. Oz contends that there are many ways to express the idea of a human mannequin and that “theirs is a unique expression of that idea.”
Thus far, the court has said that more evidence is needed to determine if copyright protection should apply to Bella and Brandy. Specifically, the court expressed a desire to view the mannequins from Oz and RPM, as well as other junior and plus-sized model mannequins. Time will tell if Oz’s mannequins will be deemed copyrightable. Stay tuned.
Jennifer Williams is a recent law student grad, who writes about fashion, the legal avenues available for protecting it, and the ways in which the laws are falling short. For more from Jennifer, follow her on Twitter.