‘Disorderly' Submission of Glass Sculpture Does Not Necessarily Invalidate Registration

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By Anandashankar Mazumdar  

If a submission accompanying a copyright registration application is sufficient to identify a sculptural work in which the applicant is claiming copyright interest, then it is not relevant that the submission included a series of loose photographs and not a single booklet or PDF file, the U.S. Court of Appeals for the Seventh Circuit ruled Aug. 12 (Neri v. Monroe, 7th Cir., No. 123204, 8/12/13).

Vacating a ruling that a plaintiff in a copyright infringement proceeding did not hold a valid copyright registration, the court said that even if a submission includes several loose photographs rather than a single booklet or PDF file, it will be sufficient for registration so long as the relevant work is adequately identified.

Artist Sues After Images of Work Are Posted

Linda Hughes of Madison, Wis., engaged Amy Radspinner of Amy Radspinner Design L.L.C., Madison, to redesign the foyer of Hughes's condominium residence. In October 2008, Radspinner contacted artist Quincy M. Neri of Madison to design a glass sculpture for the ceiling of the foyer.

Neri then went to inspect Hughes's foyer and found that the ceiling was at the time decorated with a mural by trompe-l'œil artist Richard Haas and eventually Hughes donated the Haas work to the Madison Museum of Modern Art.

Neri proposed several designs for a work for the foyer, including “Mendota Reflection,” which would comprise 100 to 150 blown glass pieces. Neri enlisted the aid of glassblower Fritz Schomburg on the project. In April 2009, Neri and Schomburg installed the final work, comprising 61 blown glass pieces, in Hughes's foyer.

The new glass ceiling in the foyer, on which the work was installed, as well as other remodeling of the condo, was installed by architectural design firm Architectural Building Arts Inc., whose principals were Melinda Monroe and Steve Larson and the lighting for the foyer was designed by Lesley Hayman Sager of Sager Design.

In April 2011, Neri discovered that Architectural Building's website featured an image of “Mendota Reflection,” listing a series of awards that Architectural Building had won for the design, and the sole credit given was to photographer Eric Ferguson of Spring Green, Wis., who had taken a series of photographs of the remodeling process. Sager and Ferguson had also posted images of the ceiling on the internet.

Neri sued Hughes, Radspinner, Schomburg, Architectural Building, Monroe, Larson, Sager, and Ferguson, alleging copyright infringement.

Magistrate Judge Stephen L. Crocker of the U.S. District Court for the Western District of Wisconsin dismissed Neri's claims after finding that Neri had not registered her copyright interest in the sculpture with the Copyright Office, which is required under 17 U.S.C. §411(a) for the filing of a copyright infringement claim. Neri had obtained a certificate of registration, but the district court found that Neri's registration application was defective and the certificate was invalid. Neri appealed.

Court Points Out That Submissions Not in Record

Judge Frank H. Easterbrook described the submissions sent to the Copyright Office by Neri with her registration application:  

The magistrate judge described Neri's submission as a booklet containing photographs of several sculptures, plus some loose photographs. The sculpture installed at the Hughes residence is included among the loose photographs but not the booklet. The magistrate judge though this disorderly and thus ineligible for registration.  



However, the appeals court noted that none of these materials were actually part of the record in the case and wondered “how a court could conclude that a given submission is not 'in an orderly form' when the submission cannot be examined.”

Although this failure to enter these materials into the record would ordinarily result in a judgment against Neri, the court said, in this case Neri had actually obtained a certificate of registration, which meant that the burden of showing that the registration was invalid should be on the defense.

Turning to the question of whether the submission was too “disorderly” to support registration, the court noted that the Copyright Office apparently did not reach that conclusion, based on the fact that a registration certificate had been issued.

The appeals court said that there was no legal authority for the idea that a submission must be “orderly” in order for a registration to be valid. Furthermore, the court said, “we do not see why only a single document can be orderly.” The court said:  

Any organization that enables a court to associate a work underlying the suit with a work covered by a registration ought to do the trick. If a booklet (or PDF file) with page numbers is orderly enough--as the magistrate judge thought--a sequence of loose but numbered or named photographs should be enough too. … If the Hughes sculpture is identifiable in the registration, that should do. But if, as defendants suggest, it is not depicted at all--if the materials that Neri submitted to the Copyright Office contain only photos of sculptures similar to the one she made for Hughes--then [the registration] does not support this suit.  



Next, the court rejected the defendants' arguments that Schomburg, not Neri, was the actual author of the work. This assertion was based on the fact that it was Schomburg who had actually blown the glass components, with Neri's assistance.

The court pointed out that Neri's claim of authorship did not depend on her role of assisting Schomburg in the glass-blowing process, but in the design of the entire work. The court said:  

Most intellectual property is created in stages. Neri's claim depends not on her role as aide while Schomburg blew the glass, but on her design work: she decided what kind of glass would be created, in what shapes and colors, attached to what armatures, and where the glass elements would go relative to the ceiling and each other. The resulting whole is the sculpture in which Neri claims copyright. To the extent that Schomburg added features in the course of blowing the glass, he has a separate claim of intellectual property in a derivative work, but this does not detract from Neri's rights.  



The court thus vacated the magistrate judge's ruling and remanded the matter back to the district court, and it also suggested that it might consider the possibility that Hughes or Architectural Building Arts--as parties that “exercised discretion over the colors and arrangement of the 60 individual glass pieces--might be joint authors who have the authority to give consent to the use of the photographs on the internet. To the extent that Neri denies their status as joint authors, the court said that this was a matter of fact to be determined at the trial level.

The court also suggested consideration of the question of whether Architectural Building Arts and Sager's use of the photographs constituted fair use, in that they legitimately used the images to display their own contributions to the appearance of the foyer. The appeals court noted that it seemed unlikely that the appearance of the photographs on those websites--just like Neri's own use of the images on her own website--would reduce the demand for Neri's work.

The court's opinion was joined by Judge William J. Bauer and Judge Michael S. Kanne.

Neri represented herself. Architectural Building Arts was represented by Lori Marie Lubinsky of Axley Brynelson, Madison.


Text is available at http://www.bloomberglaw.com/public/document/Quincy_Neri_v_Melinda_Monroe_et_al_Docket_No_1203204_7th_Cir_Sept.

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