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To qualify for copyright protection, a work must be original to the author, meaning only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. A sculptural work's creativity derives from the combination of texture, color, size, and shape, as well as the particular verse inscribed and the way the verse is presented. It means nothing that these elements may not be individually entitled to protection; all creative works draw on the common wellspring that is the public domain. In this pool are not only elemental raw materials, like colors, letters, descriptive facts, and the catalogue of standard geometric forms, but also earlier works of art that, due to the passage of time or for other reasons, are no longer copyright protected. When an author combines these elements and adds his or her own imaginative spark, creation occurs, and the author is entitled to protection for the result. This is true even when the author contributes only a minimal amount of creativity.
Appellant Kay Berry, Inc. ("Kay Berry") applied for a copyright registration for its entire line of sculptures, including the one at issue. Kay Berry claimed that Appellees Taylor Gifts, Inc. ("Taylor") and Bandwagon, Inc. ("Bandwagon") infringed its copyright on its sculptural work - a garden rock cast with a poem found in the public domain. The United States District Court for the Western District of Pennsylvania held that the works were not sufficiently related to each other to qualify for registration as a group of works under 17 U.S.C.S. § 408(c)(1). The district court granted summary judgment after determining that Kay Berry's copyright registration was invalid and that the sculptural work was not entitled to copyright protection. Kay Berry appealed.
Did the district court err in holding that Kay Berry's copyright registration was invalid and that the sculptural work was not entitled to copyright protection?
The appellate court disagreed with the district court’s ruling. Regardless of whether the sculptures were sufficiently related, as they were included in a single unit of publication and the copyright claimant was the same, they could be registered under the single work registration regulation, 37 C.F.R. § 202.3(b)(3). Selecting an inspirational poem from the public domain, adapting it to make it visually and rhythmically appealing, and casting it on its own sculptural work was a sufficient quantum of creativity to qualify for copyright protection. The protectable originality of the allegedly infringed work was to be found, if at all, solely in its appearance. It did not embody an expression that was inseparable from an underlying idea. Kay Berry was therefore entitled to attempt to show that the alleged infringement was neither a unique creation, nor the unavoidable expression of a common idea, but rather an impermissible copy.