Tangle, Inc. is the owner of copyright registrations for seven different sculptures that are both kinetic and manipulable. Each sculpture is made out of 17-to-18 tubular segments that are curved 90 degrees and completely identical. Once connected, each segment can be twisted up to 360 degrees to create different poses. So when Aritzia, Inc. started using similar sculptures in their store windows, Tangle sued them for copyright infringement and trade dress infringement.

When all those claims were dismissed by the US District Court for the Northern District of California, Tangle decided to appeal. This has turned out to be a good decision, as the US Court of Appeals for the Ninth Circuit reversed the district court’s dismissal of the copyright infringement claim despite Aritzia’s argument that, according to 17 U.S.C. § 102(a), copyright is only supposed to protect works that are “fixed in any tangible medium of expression,” essentially saying that the sculptures’ kinetic, manipulable nature meant that copyright could only apply to specific poses.

Why did the Ninth Circuit disagree?

What It Means for a Work to Be “Fixed” 

The Ninth Circuit found that Tangle’s sculptures qualified for copyright protection despite being designed for arrangement into numerous poses after comparing them to other protected works involving motion, including music, movies, and dance. 

The court’s ruling stated:

“Here, Tangle’s sculptures are material objects, so they qualify as ‘copies.’ See 17 U.S.C. § 101. In addition, those material objects can be ‘perceived’ and ‘reproduced’ for more than a ‘transitory’ period…As embodied in the sculptures, Tangle’s expression therefore is “‘fixed” in a tangible medium,’ even though the sculpture may take different poses. Tangle’s registered copyrights are thus valid and protect its works across their full range of motion.”

The Ninth Circuit also found that Tangle had made a plausible claim that Aritzia’s selection and arrangement of the different elements of the protected works was substantially similar to creative choices Tangle made. What elements?

Tangle alleged that the sculptures of both companies:

• Have the same number of segments
• Have segments that are identical in size and shape
• Have segments with the ability to turn 360 degrees where each segment connects.

There was, however, some question over whether Tangle’s sculptures should receive “broad” or “thin” protection. Broad protection would cover the “wide range of possible expression” resulting from choices related to the number, proportions, and shape of segments used, as well as whether the segments were uniform and how they connected. Thin protection would mean that infringement could only occur if the sculptures Aritzia created were “virtually identical.”

This Is Not a Complete Win for Tangle – Yet – But It Does Seem to Be a Win for Kinetic Sculptures

As you can see, there is quite a bit that still needs to be resolved in this case – Tangle and Aritzia will definitely be arguing over the “broad” versus “thin” protection question, among others. However, simply being able to continue the fight has to be seen as a win for Tangle.

Looking at the broader picture, the immediate winners may be creators of kinetic sculptures, who now have clear precedent to point to confirming some measure of copyright protection for their work. Wondering if your work qualifies? Get in touch.