FILED
`United States Court of Appeals
`Tenth Circuit
`PUBLISH
`
`
`July 21, 2020
`UNITED STATES COURT OF APPEALS
`
`
`Christopher M. Wolpert
`FOR THE TENTH CIRCUIT
`Clerk of Court
`____________________________________
`
`ZAHOUREK SYSTEMS, INC.;
`JON ZAHOUREK
`
` Plaintiffs Counterclaim
` Defendants - Appellants,
`
`v.
`
`BALANCED BODY UNIVERSITY,
`LLC,
`
` Defendant Counterclaimant -
` Appellee.
`______________________
`
`ZAHOUREK SYSTEMS, INC.;
`JON ZAHOUREK
`
` Plaintiffs Counterclaim
` Defendants - Appellee,
`
`v.
`
`BALANCED BODY UNIVERSITY,
`LLC,
`
` Defendant Counterclaimant -
` Appellant.
`
`
`
`
`
`
`
`
`No. 18-1300
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`No. 18-1312
`
`
`_________________________________
`
`Appeals from the United States District Court
`for the District of Colorado
`(D.C. No. 1:13-CV-01812-RM-MLC)
`_________________________________
`
`
`
`United States Court of Appeals
`Tenth Circuit
`PUBLISH
`
`
`July 21, 2020
`UNITED STATES COURT OF APPEALS
`
`
`Christopher M. Wolpert
`FOR THE TENTH CIRCUIT
`Clerk of Court
`____________________________________
`
`ZAHOUREK SYSTEMS, INC.;
`JON ZAHOUREK
`
` Plaintiffs Counterclaim
` Defendants - Appellants,
`
`v.
`
`BALANCED BODY UNIVERSITY,
`LLC,
`
` Defendant Counterclaimant -
` Appellee.
`______________________
`
`ZAHOUREK SYSTEMS, INC.;
`JON ZAHOUREK
`
` Plaintiffs Counterclaim
` Defendants - Appellee,
`
`v.
`
`BALANCED BODY UNIVERSITY,
`LLC,
`
` Defendant Counterclaimant -
` Appellant.
`
`
`
`
`
`
`
`
`No. 18-1300
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`No. 18-1312
`
`
`_________________________________
`
`Appeals from the United States District Court
`for the District of Colorado
`(D.C. No. 1:13-CV-01812-RM-MLC)
`_________________________________
`
`
`
`
`David Nimmer, Irell & Manella LLP, Los Angeles, California (Dennis J.
`Courtney, Irell & Manella LLP, Los Angeles, California; Luke Santangelo
`and Nicole Ressue, Santangelo Law Offices, P.C., Fort Collins, Colorado,
`with him on the briefs), on behalf of the Plaintiffs Counterclaim
`Defendants.
`
`Carolyn V. Juarez, Neugeboren O’Dowd P.C., Boulder, Colorado; John R.
`Posthumus, Polsinelli, Denver, Colorado (Gordon E.R. Troy, Shelburne,
`Vermont, with them on the briefs), on behalf of the Defendant
`Counterclaimant.
`
`_________________________________
`
`
`Before BACHARACH and CARSON,* Circuit Judges.
`_________________________________
`
`
`BACHARACH, Circuit Judge.
`________________________________
`
`
`
`
`These appeals involves a sculptural work called “the Maniken,”
`
`which portrays the human body. The overarching issue is whether the
`
`Maniken is a “useful article” under the copyright laws. If the Maniken is a
`
`useful article, it wouldn’t ordinarily be protectible under the copyright
`
`laws. We conclude that a genuine issue of material fact exists on whether
`
`the Maniken is a useful article.
`
`
`The Honorable Monroe McKay served on the panel at the time of oral
`*
`argument, but he passed away before we issued this opinion. He did not
`participate in the decision, and the two remaining panel members
`constitute a quorum. See 28 U.S.C. § 46(d); Fish v. Schwab, 957 F.3d
`1105, 1110 n.* (10th Cir. 2020).
`
`
`
`
`2
`
`
`
`1.
`
`
`
`The Maniken portrays the human body.
`
`Like a skeleton, the Maniken portrays the human body; but the
`
`Maniken dwarfs a standard classroom skeleton and facilitates education by
`
`allowing students to apply clay where human tissues would appear. On the
`
`left of each picture is the Maniken, and on the right is a standard skeleton.1
`
`2.
`
`Balanced Body University uses the Maniken, and Mr. Zahourek
`and his company sue for copyright infringement.
`
`The defendant, Balanced Body University, bought several Manikens
`
`and used them to advertise and instruct students on human anatomy. Mr.
`
`
`
`
`These pictures show a later version of the Maniken.
`
`3
`
`1
`
`
`
`
`
`
`Zahourek and his company sued for copyright infringement (among other
`
`claims). The district court granted summary judgment to Balanced Body
`
`University on the copyright-infringement claim, concluding that the
`
`Maniken was unprotected as a “useful article.” We reverse because the
`
`Maniken’s classification as a useful article turns on a genuine issue of
`
`material fact.2
`
`3.
`
`A genuine issue of material fact exists on whether the Maniken is
`a useful article.
`
`Federal law defines a “useful article,” and a genuine issue of material
`
`fact exists over whether the Maniken fits this definition.
`
`A.
`
`The Standard of Review
`
`We engage in de novo review of the grant of summary judgment,
`
`
`
`viewing the evidence in the light most favorable to the nonmoving party.
`
`Blehm v. Jacobs, 702 F.3d 1193, 1199 (10th Cir. 2012). With this view of
`
`the evidence, we consider whether Balanced Body University has shown
`
`the lack of a genuine dispute of material fact and entitlement to judgment
`
`as a matter of law. Fed. R. Civ. P. 56(a).
`
`
`
`Within this framework, we consider the copyrightability of the
`
`Maniken as a mixed question of law and fact. See Enterprise Mgt. Ltd. v.
`
`Warrick, 717 F.3d 1112, 1117 n.5 (10th Cir. 2013). As a mixed question,
`
`
`Balanced Body University cross-appealed on the issue of attorneys’
`2
`fees. Because Balanced Body University is no longer the prevailing party,
`its cross-appeal is moot.
`
`
`
`4
`
`
`
`copyrightability could include “potential jury questions in the presence of
`
`materially disputed facts.” Meshwerks, Inc. v. Toyota Motor Sales U.S.A.,
`
`Inc., 528 F.3d 1258, 1262 n.4 (10th Cir. 2008).
`
`B.
`
`The District Court’s Ruling
`
`The district court issued two orders addressing whether the Maniken
`
`
`
`is a useful article. In the first order, the court ruled that the Maniken is a
`
`useful article because it has “an intrinsic utilitarian function that is merely
`
`to portray the appearance of a life-like form.” Joint App’x vol. 4, at 843.
`
`In the second order, the district court reiterated that the Maniken is a
`
`useful article, adding that an article is considered useful if it has any
`
`“intrinsic utilitarian nature.” Id. at 925–26. The court considered the
`
`Maniken intrinsically utilitarian because it merely portrays its own
`
`appearance. Id. at 926 n.4.
`
`C.
`
`The Misfit Between the District Court’s Reasoning and the
`Statutory Definition of a “Useful Article”
`
`The district court focused on the usefulness of the Maniken. This
`
`
`
`
`focus appears sensible but doesn’t fit the statutory definition of a useful
`
`article. A useful article is defined as “having an intrinsic utilitarian
`
`function that is not merely to portray the appearance of the article or to
`
`convey information.” 17 U.S.C. § 101. Under this definition, an item is not
`
`a “useful article” if its usefulness derives solely from its appearance. See
`
`Superior Form Builders v. Dan Chase Taxidermy Supply Co., 74 F.3d 488,
`
`
`
`5
`
`
`
`493 (4th Cir. 1996) (stating that under 17 U.S.C. § 101, “a useful article
`
`has as its function something more than portraying its own appearance”). If
`
`an item isn’t a “useful article” under this definition, the item may be
`
`copyrightable. Pivot Point Int’l, Inc. v. Charlene Prods., Inc., 372 F.3d
`
`913, 919 (7th Cir. 2004).3
`
`Under the statutory definition, many functional items aren’t “useful
`
`articles.” Consider a toy airplane or nose mask, which may be
`
`copyrightable despite their usefulness.4 For example, a toy airplane might
`
`be useful for child’s play, but it’s not a useful article because the
`
`utilitarian function consists solely in its appearance. Gay Toys, Inc. v.
`
`Buddy L Corp., 703 F.2d 970, 973 (6th Cir. 1983). And a nose mask isn’t a
`
`useful article because the utilitarian function inheres solely in its
`
`
`In enacting the exception for useful articles, Congress intended to
`3
`deny copyright protection to “industrial products” like “automobiles, food
`processors, and television sets.” Gay Toys, Inc. v. Buddy L Corp., 703 F.2d
`970, 973 (6th Cir. 1983) (citing H.R. Rep. No. 94-1476, at 55 (1976)).
`These industrial products may be protectible, but only through “the more
`temporary rights provided by the Patent Act.” Chosun Int’l, Inc. v. Chrisha
`Creations, Ltd., 413 F.3d 324, 328 (2d Cir. 2005).
`
`Even if part of an item constitutes a “useful article,” other parts may
`
`be copyrightable if they “incorporate[] pictorial, graphic, or sculptural
`features that can be identified separately from, and are capable of
`existing independently of, the utilitarian aspects of the article.” See 17
`U.S.C. § 101. We need not consider whether the Maniken has sculptural
`elements separable from a utilitarian function.
`
`
` 4
`
`
`
`6
`
`
`
`appearance. Masquerade Novelty, Inc. v. Unique Indus., Inc., 912 F.2d 663,
`
`671 (3d Cir. 1990).
`
`Like a toy airplane or nose mask, the Maniken has utility only
`
`because it portrays the appearance of something (the human body).
`
`Because the human body is accurately depicted, the Maniken helps students
`
`learn human anatomy. Without this accurate depiction of the human body,
`
`the Maniken could lack any utilitarian function. So a material factual issue
`
`exists on whether the Maniken fits the statutory definition of a useful
`
`article. See Hart v. Dan Chase Taxidermy Supply Co., 86 F.3d 320, 323 (2d
`
`Cir. 1996) (concluding that animal mannequins were copyrightable because
`
`their function was “to portray [their] own appearance);5 Superior Form
`
`Builders, Inc. v. Dan Chase Taxidermy Supply Co., 74 F.3d 488, 494 (4th
`
`Cir. 1996) (concluding that animal mannequins were not useful articles
`
`because “[their] usefulness [was] their portrayal of the appearance of
`
`animals”).
`
`D.
`
`The Potential Usefulness of Applying Clay to the Maniken
`
`Despite the statutory definition of a “useful article,” Balanced Body
`
`University relies on the district court’s finding that the Maniken provides
`
`
`The Second Circuit noted that it had earlier treated a clothing
`5
`mannequin as a useful article. Hart, 86 F.3d at 323; see Carol Barnhart
`Inc. v. Economy Cover Corp., 773 F.2d 411 (2d. Cir. 1985). In the earlier
`case, however, the parties had stipulated that the mannequin was a useful
`article. Carol Barnhart, 773 F.3d at 414; see Hart, 86 F.3d at 323.
`7
`
`
`
`
`
`utilitarian value for learning anatomy. In relying on this finding, Balanced
`
`Body University argues that the Maniken’s primary purpose is to teach
`
`anatomy, allowing students to study muscle articulation through the
`
`application of clay.
`
`This argument erroneously assumes that the Maniken must be a
`
`“useful article” because it can serve as an educational tool. But countless
`
`items may be copyrightable despite their utility as educational tools. For
`
`example, consider textbooks. They are often useful for teaching. But
`
`textbooks are not useful articles because their utility lies solely in the
`
`information conveyed. See Samson Vermont, The Sine Qua Non of
`
`Copyright Is Uniqueness, Not Originality, 20 Tex. Intell. Prop. L.J. 327,
`
`353 (2012) (stating that textbooks are copyrightable despite their practical
`
`utility); see also ATC Distribution Grp., Inc. v. Whatever It Takes
`
`Transmissions & Parts, Inc., 402 F.3d 700, 707 n.3 (6th Cir. 2004) (“[T]he
`
`usefulness of a taxonomy, which is intended to convey information, and
`
`which is neither pictorial, graphic, nor sculptural, does not preclude its
`
`being eligible for copyright protection under [17 U.S.C.§ 101].”).
`
`So too here. The Maniken might be useful for teaching anatomy, but
`
`a fact finder could reasonably attribute this usefulness to the information
`
`that the Maniken conveys about human anatomy. If the Maniken’s
`
`usefulness lies solely in the information it conveys, the Maniken would not
`
`be a useful article. 17 U.S.C. § 101.
`
`
`
`8
`
`
`
`
`
`Balanced Body University argues that the Maniken does more than
`
`convey information: its design allows students to apply clay to learn about
`
`muscles. But the University did not make this argument in district court
`
`when seeking summary judgment. Because the University didn’t make this
`
`argument, the burden never shifted to Mr. Zahourek and his company to
`
`present evidence that the Maniken’s utility lay solely in its portrayal of a
`
`human skeleton. See Alpine Bank v. Hubbell, 555 F.3d 1097, 1110 (10th
`
`Cir. 2009);6 cf. Tavery v. United States, 32 F.3d 1423, 1427 n.5 (10th Cir.
`
`1994) (refusing to affirm the award of summary judgment on an alternative
`
`ground because the moving party had not raised the issue in district court,
`
`failing to put the nonmoving party on notice of a duty to present evidence
`
`on the issue).
`
`But let’s assume for the sake of argument that a fact finder could
`
`reasonably infer that the Maniken had served partly as a prop to showcase
`
`
`There we explained:
`
`6
`
`
`To be sure, there is one situation in which the [plaintiffs]
`
`would have no burden to show the merits of a nondisclosure
`claim [based on Colorado’s five ways to establish a duty of
`disclosure]. If [the plaintiffs] had raised such a claim in district
`court and the [defendant’s] motion for summary judgment had
`not presented argument and evidence showing that the claim
`lacked merit,
`summary
`judgment would
`have
`been
`inappropriate. After all, it is not the party opposing summary
`judgment that has the burden of justifying its claim; the movant
`must establish the lack of merit.
`
`
`Hubbell, 555 F.3d at 1110.
`
`
`
`9
`
`
`
`the location and movement of human muscles. On summary judgment, a
`
`fact finder must view the evidence in the light most favorable to the non-
`
`movant (Mr. Zahourek and his company). See Part 3(A), above. A fact
`
`finder could reasonably infer that the Maniken had facilitated learning
`
`through the application of clay only because the skeletal frame accurately
`
`portrayed a human skeleton. Indeed, Balanced Body University repeatedly
`
`argues that
`
`
`
`
`
`
`
`
`
`the Maniken is “anatomically accurate” and
`
`the accuracy enhances the educational “experience for students
`learning about muscle structure and placement.”
`
`Appellee’s Resp. Br. at 4, 15. Given these arguments, a fact finder could
`
`reasonably infer that the Maniken had served as a useful learning tool only
`
`because of its anatomical accuracy.
`
`A similar issue arose in Superior Form Builders, Inc. v. Chase
`
`Taxidermy Supply Co., 74 F.3d 488 (4th Cir. 1996); see p. 7, above. That
`
`case involved animal mannequins used by the defendant to mount animal
`
`skins. 74 F.3d at 491. Given this use, the defendant argued that the animal
`
`mannequins had a utilitarian function of acting as mounts to display animal
`
`skins. Id. at 493–94.
`
`The Fourth Circuit rejected this argument, reasoning that the
`
`mannequins’ utility still consisted of their portrayal of the animals’
`
`appearance:
`
`
`
`10
`
`
`
`[T]his argument overlooks that which distinguishes mannequins
`from ordinary plastic foam pellet animal stuffing: A mannequin
`provides the creative form and expression of the ultimate animal
`display, whereas pellets do not. Even though covered with a skin,
`the mannequin is not invisible but conspicuous in the final
`display. The angle of the animal’s head, the juxtaposition of its
`body parts, and the shape of the body parts in the final display
`is little more than the portrayal of the underlying mannequin.
`Indeed, the mannequin can even portray the intensity of flexed
`body parts, or it can reveal the grace of relaxed ones. None of
`these expressive aspects of a mannequin is lost by covering the
`mannequin with a skin. Thus, any utilitarian aspect of the
`mannequin exists “merely to portray the appearance” of the
`animal.
`
`
`Id. at 493–94 (quoting 17 U.S.C. § 101); see p. 7, above.
`
`The Fourth Circuit’s reasoning applies here. Like the animal
`
`mannequins in Superior Form Builders, Mr. Zahourek’s sculpture of a
`
`human form retains its utilitarian function even though clay (rather than
`
`animal skins) is used to cover the exterior. Just as the mannequins retained
`
`their utility in Superior Form Builders based on their portrayal of animals,
`
`the Maniken retains its utility based on its portrayal of a human skeleton.7
`
`In Superior Form Builders, the court pointed out that without the
`
`mannequins’ portrayal of the animals, the skins could have been draped on
`
`foam pellet stuffing. Superior Form Builders, Inc. v. Chase Taxidermy
`
`
`Balanced Body University tries to distinguish Superior Form
`7
`Builders by noting that the animal mannequins retained expressive
`elements even after being covered with skins. Appellee’s Resp. Br. at 16.
`But Balanced Body University does not explain the relevance of this
`observation. The Maniken’s utilitarian value lies in its appearance even if
`that appearance reveals few expressive elements.
`11
`
`
`
`
`
`Supply Co., 74 F.3d 488, 494 (4th Cir. 1996). Here too, the clay could
`
`otherwise have been added to any three-dimensional structure. But the
`
`Maniken was not just any three-dimensional structure, and a fact finder
`
`could reasonably find that the spaces to add clay provided utility only
`
`because of the Maniken’s resemblance to a human skeleton. So even if
`
`Balanced Body University had pressed its current argument in district
`
`court, summary judgment would have remained unavailable.
`
`4.
`
`Conclusion
`
`Viewing the evidence in the light most favorable to Mr. Zahourek
`
`and his company, a fact finder could reasonably determine that the
`
`Maniken was not a useful article. So we reverse the award of summary
`
`judgment on the claim of copyright infringement and remand for further
`
`proceedings.
`
`
`
`
`
`12
`
`
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