Many years ago, before Lindsay Lohan was born, before Herbie was even one-quarter loaded, I was a college student, majoring in music. I still needed a credit in another humanities field, so I took a class on art appreciation. The class was at 8 am. That was very early for most of my fellow students. The class was quite easy, though, consisting of the professor showing slides in a darkened room. The darkness and the hour caused many to sleep through the class; some of the sleepers would fall out of their chairs on to the floor. Five minutes before the lights would come on, the professor would start warning students, but of course if you were asleep, this warning did no good, and when the lights came on, some slept on, occasionally after class was over and everyone had left the room.
One of the paintings discussed was Magritte's Ceci n'est pas une pipe. Michael Foucault wrote a book about the picture, "This is not a Pipe." An alternative title might be "This is not a Book." In Eliya, Inc. v. Kohl's Department Stores, 2006 WL 2645196 (S.D.N.Y. Sept. 13, 20006), Judge Gerard Lynch, a jurist of formidable intellectual prowess confronted the question of when a shoe is not a shoe for copyright purposes. Plaintiff designed a woman's shoe, which Judge Lynch referred to as the "SHOE design." It consisted of "patterned stitching on the front and sides of the shoe, a strap with visible stitching, and a sole with a pattern of spots that wraps around the shoe and extends up the back, sides, and front." Plaintiff claimed Kohl's copied the shoe.
Plaintiff's registration was for a two-dimensional work which described the nature of authorship as "etching." Judge Lynch correctly held that plaintiff's copyright did not extend to three dimensional shoes, and that there were no separable features warranting protection for the design of a useful article (the shoe). He distinguished the Second Circuit's Knitwaves, Inc. v. Lollytogs Ltd. which had found infringement of a sweater design: Knitwaves involved infringement of a two-dimensional design by another two-dimensional design. Judge Lynch noted that a three-dimensional design may infringe a two-dimensional design, but not where as here, the three dimensional work is unprotectible. Any other holding would result in vesting of copyright in gas turbines through an original drawing of them. Although he didn't cite the provision, Section 113(b) provided another ground for rejecting plaintiff's claim:
This title does not afford, to the owner of copyright in a work that portrays a useful article as such, any greater or lesser rights with respect to the making, distribution, or display of the useful article so portrayed than those afforded to such works under the law, whether title 17 or the common law or statutes of a State, in effect on December 31, 1977, as held applicable and construed by a court in an action brought under this title.