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Make No Bones About It, a Skeleton May Be Copyrightable

Recently, an appeals court was faced with deciding if a sculptural work of the human skeleton is protectible by copyright law.  It very well may be!

A company created a very large sculpture of a human skeleton called a “Maniken”, dwarfing the size of most standard skeletal frames.  The Maniken portrayed the human body and is used as an aid in teaching anatomy.  In addition to viewing the Maniken anatomically accurate skeletal sculpture, students also could apply clay to the frame where human tissue would appear.  A university purchased several Manikens and used them to advertise and to teach students anatomy.  Maniken’s company sued the university for copyright infringement, and the issue was whether the sculptural work was protectible under copyright law.  The university submitted that it was not copyrightable because the Maniken is a useful article.

Under U.S. copyright law,  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.”  Conversely, an item is not a useful article if its usefulness derives solely from its appearance.  The question is whether the Maniken is a useful article.  The lower court determined that Maniken had “an intrinsic utilitarian function that is merely to portray the appearance of a life-like form,”  and granted summary judgment to the university; Maniken’s company appealed.  In short, the issue on appeal is whether the question of Maniken being a useful article should go to a jury or can the court dispose of the case based upon the agreed upon facts and applicable law.

The appeals court thought it was a question to be decided by the jury because reasonable minds could differ when answering the question.  Many functional items are not useful articles.  The court used an example of a toy airplane that is functional, but not useful.  The appeals court also found that copyrightable items can serve as educational tools without losing protection, including textbooks.  Maniken may be useful in teaching anatomy solely due to its appearance, but alternatively, a jury could attribute the usefulness to the information conveyed about human anatomy, thus, rendering it not a useful article.  A jury also could find that the application of clay (as tissue) facilitated learning only because Maniken was anatomically accurate.

Since reasonable minds could differ on the factual issues, the appellate court reversed the lower court’s finding that only one outcome was possible.  The case was returned to the lower court for trial.   It seems Mr. Bones may have his day in court. 

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Ramona P. DeSalvo