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
Before RIPPLE, KANNE and DIANE P. WOOD, Circuit Judges. KANNE, Circuit Judge, dissent-
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.
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-
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