In a recent ruling, a Ninth Circuit panel determined that kinetic sculptures, which inherently feature movement, may qualify for copyright protection despite their dynamic and mutable nature. Tangle, the plaintiff, holds copyright registrations for seven kinetic sculptures composed of 17 or 18 identical, interconnected, 90-degree curved tubular segments, typically crafted from chrome. These segments can be rotated 360 degrees at their junctions, allowing users to create an endless array of configurations, appealing particularly to enthusiasts of fidget toys. The defendant, Aritzia, operates retail outlets in the U.S. and Canada, selling lifestyle apparel. In 2023, Aritzia showcased fuchsia-colored sculptures in its store windows, resembling Tangle’s creations in structure, as they too consisted of 18 identical, connected segments capable of 360-degree rotation. While Aritzia’s sculptures were larger and finished in shiny chrome compared to Tangle’s matte versions, they bore a striking resemblance. Tangle initiated legal action against Aritzia for copyright and trade dress infringement. The district court initially dismissed the case, but on appeal, the Ninth Circuit reinstated Tangle's copyright claim while upholding the dismissal of the trade dress claim. Aritzia contended that Tangle's sculptures could only be copyrighted once fixed in specific poses. The Ninth Circuit rejected this notion, asserting that Tangle's sculptures, as tangible objects, qualify as “copies” under copyright law, allowing for protection despite their ability to change form. The court acknowledged that while individual elements of Tangle's sculptures might not be copyrightable in isolation, the original selection and arrangement of these elements could be protected. It concluded that Tangle had adequately alleged substantial similarity between its sculptures and Aritzia's, setting the stage for further legal proceedings to determine the extent of copyright protection.
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