2004 Pivot Abridged

2004 Pivot Abridged - PIVOT POINT INTERNATIONAL,...

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1 PIVOT POINT INTERNATIONAL, INCORPORATED, Plaintiff- Appellant, Cross-Appellee, v. CHARLENE PRODUCTS, INCORPO- RATED and PETER YAU, Defendants-Appellees, Cross-Appellants. 372 F.3d 913 (7 th Cir. 2004) Before RIPPLE, KANNE and DIANE P. WOOD, Circuit Judges. KANNE, Circuit Judge, dissent- ing. RIPPLE, Circuit Judge. Pivot Point International, Inc. ("Pivot Point"), brought this cause of ac- tion against Charlene Products, Inc., and its president Peter Yau (collectively "Charlene"), for copy- right infringement pursuant to 17 U.S.C. §501(b). The district court granted summary judgment for the defendants on the ground that the copied subject matter, a mannequin head, was not copy- rightable under the Copyright Act of 1976 ("1976 Act"), 17 U.S.C. §101 et seq. For the reasons set forth in the following opinion, we reverse the judgment of the district court and remand the case for proceedings consistent with this opinion. I. BACKGROUND A. Facts Pivot Point develops and markets educational techniques and tools for the hair design industry. It was founded in 1965 by Leo Passage, an internationally renowned hair designer. One aspect of Pivot Point's business is the design and development of mannequin heads, "slip-ons" (facial forms that slip over a mannequin head) and component hair pieces. In the mid-1980s, Passage desired to develop a mannequin that would imitate the "hungry look" of high-fashion, runway models. Passage believed that such a mannequin could be marketed as a premium item to cutting-edge hairstylists and to stylists involved in hair design competitions. Pas- sage then worked with a German artist named Horst Heerlein to create an original sculpture of a female human head. Although Passage discussed his vision with Heerlein, Passage did not give Heerlein any specific dimensional requirements. From Passage's description, Heerlein created a sculpture in plaster entitled "Mara." Wax molds of Mara were made and sent to Pivot Point's manufacturer in Hong Kong. The manufacturer created exact reproductions of Mara in polyvinyl chloride ("PVC"). The manufacturer filled the PVC form with a liquid that expands and hardens into foam. The process of creating the Mara sculpture and of developing the mannequin based on the sculpture took approximately eight- een months. In February of 1988, when Pivot Point first inspected the PVC forms of Mara, it discovered that the mannequin's hairline had been etched too high on the forehead. The manufacturer corrected the mistake by adding a second, lower hairline. Although the first, higher hairline was visible upon in- spection, it was covered with implanted hair. The early PVC reproductions of Mara, and Pivot Point's first shipment of the mannequins in May of 1988, possessed the double hairlines. About the same time that it received its first shipment of mannequins, Pivot Point obtained a
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2004 Pivot Abridged - PIVOT POINT INTERNATIONAL,...

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