Defendant denied Plaintiff claim for the copyright to KOOSH ball to prevent competition from knockoff manufacturers Plaintiff appealed to the trial court. The trial court affirmed. Plaintiff appealed.
It is not an abuse of discretion for the Copyright Office to refuse a copyright for a work when the only creative element of the work is a utilitarian function.
OddzOn Products, Inc. (Plaintiff) filed a claim for the copyright to the KOOSH ball. The KOOSH ball is a patented and trademarked product that consists of many floppy strands that emanate from a core and are arranged to form a sphere. It was originally developed to teach children to play catch. Plaintiff sought a copyright to prevent competition from knockoff manufacturers. The Copyright Office (Defendant) denied a copyright. The Office wrote that the visual character of the KOOSH ball could not be copyrighted because it was simply a sphere, and wrote that the “tactility” (feel) of the KOOSH ball could not be copyrighted because it was a functional part of the ball. Plaintiff appealed to the district court. The district court interpreted the Office’s finding that the KOOSH ball’s visual character could not be copyrighted to mean that there was not sufficient creative work in the ball to merit a copyright, and upheld the finding on that basis. The district court agreed that, because the ball’s feel was a utilitarian aspect, it could not be copyrighted either. Plaintiff appealed to the circuit court.
Whether the Copyright Office may refuse to copyright a work if the only creative element of the work is a utilitarian function.
Yes. The trial court’s ruling is affirmed. It is not an abuse of discretion for the Copyright Office to refuse a copyright for a work when the only creative element of the work is a utilitarian function.
This court reviews the Copyright Office’s decision only to see if it has abused its discretion. Nothing in this opinion determines whether the KOOSH ball is indeed copyrightable. This case falls under the copyright rule for pictorial, graphic, and sculptural works. Such works can be copyrighted only if they embody creative authorship. Copyrights cannot be issued for useful articles, except to the extent that they include artistic features that are separate from and exist independently of the articles’ utilitarian aspect. Plaintiff raises on appeal a precedent case suggesting that toys are not subject to the copyright rule for pictorial, graphic, and sculptural works (Gay Toys, Inc. v. Buddy L. Corp., 703 F.2d 970 (6th Cir. 1983)). This question was not raised during the copyright application process, and so is not before this court for review. The Office did not abuse its discretion when it determined that the look of the KOOSH ball could not be copyrighted because it did not go beyond a familiar shape. Nor did the Office abuse its discretion when it determined that the feel of the KOOSH ball could not be copyrighted because the feel of the ball is not conceptually separable from its utilitarian function of teaching children to play catch. Courts are divided on the question of how to determine when two aspects of a work are conceptually separable. This court will not attempt to answer that question today, and merely holds that the Office did not abuse its discretion by following an approach similar to that taken by another appeals court.