Wednesday, December 30, 2009

AIGA MN - Cocktails with Creatives

Come on out and mingle with a variety of creatives (and one lawyer) from the Twin Cities.

I will be sponsoring the AIGA MN's Cocktails with Creatives in January. It will take place at the Peacock Lounge, the bar part of Erte Restaurant, in Northeast Minneapolis on January 7th from 6 to 8 p.m. Happy Hour goes until 7 p.m. and parking is free anywhere on the streets. Relax, munch, chat and enjoy!

Wednesday, December 2, 2009

FTC Endorsement Guidelines - Typicality Claims

Effective December 1, 2009, the Federal Trade Commission (FTC) has adopted new advisory guidelines concerning use of testimonials in advertising. These modifications and clarifications concerning FTC enforcement have raised concerns in many industries that rely heavily on testimonials as a large component of their marketing efforts.

What are these guidelines about?
The FTC is charged with enforcement of federal laws prohibiting deceptive trade practices – i.e. false advertising. To accomplish this mission, the FTC adopts rules and issues policy guidelines regarding the laws.

Complete Bulletin available on KunkleLaw.com

Audio from a recent interview with CoachingToys.com


Wednesday, October 28, 2009

Public Performance and Ringtones

As if to demonstrate why the general public continues to question the validity of all copyright claims in music, ASCAP recently provided us with one of the stupidest and greediest copyright cases in the recent past. (opinion at www.eff.org). After being sued in relationship to the reasonableness of its blanket licenses (related to its antitrust exemption), ASCAP argued that when someone's cell phone rings with a musical ringtone, the ring is a public performance of the composition and therefore the phone companies owe licensing fees for each call. The Electronic Freedom Foundation, who filed an amicus brief in the case, noted that: “Under this reasoning from ASCAP, it would be a copyright violation for you to play your car radio with the window down!" While I am not sure it is quite this bad, the arguments advanced by ASCAP do require a great deal of legal gymanstics in order to work.

While the law of copyright is intended to be largely technology neutral, with any newer technologies, the courts are often called upon to interpret how copyright applies in new circumstances. - ringtones are no exception. For example, a few years back the recording industry obtained clarification from the Copyright Office over whether a mechanical royalty was necessary for creating the digital files that make up ringtones - the outcome was a decision that ringtones were in fact subject to a statutory/mechanical license payable by the makers of the ringtones. The arguments made by ASCAP for performance licenses, however, are much less persuasive than those made for mechanicals. ASCAP made several legal arguments to support its position, some more technical than others, but all them largely coming down to a discussion of whether the activation of the ringtone by an incoming call constitutes a public performance that is not exempt for claims of copyright infringement. ASCAP basis its arguments on two separate theories: 1) that the downloading of the ringtone is the same as a public performance, and 2) that sending the signal activating the ringtone is part of a performance authorized by cell phone companies.

Downloading Ringtones is Not a Performance
ASCAP argues that under the “Transmission” clause of Section 101, which provides that the transmission of a protected work that is made available to the public is an act of infringement. ASCAP first argues that the Verizon allows its customers to download songs, and that these downloads are public transmissions. Wisely, the court points out that the download is being made to one party and is not to the public at large. ASCAP, however, goes an additional step and argues that the download is also the first step in a two step process whereby the performance is shifted to such times as when a phone company customer receives a telephone call which others may overhear. In an odd bit of irony, this argument strikes me as ASCAP attempting to use a time-shift argument FOR infringement.

Playing of compositions: Direct and Secondary Liability
ASCAP also argues that even if the transmission by the cell companies is not infringement, the playing of the music by the owner of the phone is, and that the phone company is either directly or indirectly liable for the infringement due to its participation in the process of the music being played. Perhaps the strangest argument made by ASCAP is the one that the court notes is their primary argument - ASCAP argued that the playing of any ringtone was in effect a direct performance by Verizon on the basis that Verizon sends a signal that triggers the playing of the music and therefore they are the instigators and the source of the performance in some Rube Goldberg like manner. ASCAP’s second argument is based on secondary liability, which requires a finding that there has been a direct or primary infringement by one party (the cell phone owner), and is aided in some way by the second (Verizon).

While the court addressed many sub-issues related to their claims and every theoretical possibility, the majority of its analysis were based on a finding that playing of ringtones are generally just intended for use by person who's phone it is on, and is therefore not a public performance as defined by Section 101. The court backed this argument up by noting that even if the playing of the ringtone was loud enough to be heard by a general audience and constitute a public performance; Section 110(4) exempts the public performance from liability if there is no commercial intent in making it public.

Conclusion
ASCAP cited many cases to support its position in this case – the majority of which were cases involving mechanical rights to reproduce a copyrighted work rather than ones dealing in issues of performance, which the court points out are not in dispute and in fact have already been paid. While in many cases the payment of performance royalties in addition to mechanical is entirely proper and appropriate, the attempt of ASCAP to apply a secondary license in this context is clearly overreaching, and it is this type of overreach that causes the general public to begin to question all copyright protections, which in turn only serves to hurt the very people that ASCAP is suppose to be working for – the artists.

Tuesday, October 27, 2009

Public Performance

What is a performance license?

One of the exclusive rights of composers of songs is to control the right to publicly perform the song publicly. Of course with the way that the music industry has developed, it is not practical in most cases to go to the composer each time a radio station or concert hall wants to play a song for their customers. Coming to the rescue (Debatable, but that's another post) are the folks at ASCAP, BMI, and SEASAC (and a few others). These organizations, commonly referred to as Performing Rights Organizations (“PROs”), have entered into agreements with thousands of composers and music publishers for the right to represent them and to license their music to radio stations and venues. While technically everyone involved (DJ, sponsor, and venue) can be held to jointly infringe a copyright, in practice the venue and promoter is most often the one that is expected to have obtained a license for music performed.

What is public?

The trick comes in when deciding what a “public” performance is. Section 101 of the U.S. Copyright Act notes that:

    To perform or display a work “publicly” means to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered. . .

As a result, most weddings, bat mitzvahs and the like would typically fall into this category of non-public performance and would not require approval by the composer and no PRO license would be necessary. With this said, a party involving 500 people who include many friends of friends or one in which some form of admission is charged will likely not fall into the category of “normal” and the use of admission will demonstrate “open to the public.”

Bottom line

Performers or venues that play to audiences other than “normal” families and their acquaintances should consider obtaining a blanket license form the PROs – an ounce of prevention is worth a pound of cure.

Monday, September 21, 2009

Bratz Revisted

In the continuing case of the Bratz doll, the Ninth Circuit recently ruled in the case of Art Attacks Ink, LLC v. MGA Ent'mt. Inc. While the case dealt with several issues, of interest to me is the portion of the ruling dealing with whether Art Attacks had proved adequate access to their character that they sold at fairs and on their website.

In the opinion, the court went out of its way to note technical weaknesses of the website as evidence of the small likelihood that there has been any access to the designs. In particular, the court noted that it "took a full two minutes" for the website to fully load; and that the website did not use meta tags that contained the words "Spoiled Brats." The court then drew the conclusion that:
    A website with such limitations could not have widely disseminated the copyrighted Spoiled Brats material.

It is not clear from the opinion how this analysis of load times and meta-tag relevancy was conducted. While I would agree that it is relevant if the load times mentioned were from 2009; it appears that the time referenced is from the late 1990's, when the site first went live. Consumer's patience with load times has un-questionable changed over that time period and a two minute wait may have been perfectly reasonable in 1996. Additionally, it is not clear why the court thinks that information must be contained in meta-tags in order to be relevant to search engines (a fact many SEO folks I'm sure would like to question.)

While I have doubts that Art Attacks could prevail in its underlying case, the court using this questionable understanding of the how meta-tags and search engines works, and their current day expectations of speed, really create a flawed ruling. It would be unfortunate if trial courts recognized this opinion as a demonstration that a website must contain specific terms in its meta-tags to be relevant in showing possible access in copyright litigation.

UPDATE: Court issues injunction related to enforcement of decision.

Tuesday, March 31, 2009

Bringing Conciliation Court Cases

Conciliation court was created to allow citizens to bring legal actions for smaller claims that would normally be difficult to bring due to the expense and knowledge needed to bring a suit in district court. Generally, these courts allow individuals to bring claims of up to $7,500 ($4,000 in cases involving commercial consumer credit transaction), or order the return of property. However, these claims may not include claims for title to real estate, libel or slander, class actions or medical malpractice.

Additionally, since these are state courts, they can not hear matters of federal law such as disputes over copyright ownership. They can, however, hear cases involving breach of contract that involves copyrighted material. This means that the conciliation court can not hear a case involving ownership of a copyright, but it can hear a case involving whether a party has paid what they owe for the creation of copyrighted material.

An important thing to remember before you file a conciliation court matter is whether you will be able to collect anything in the event that you win your case. If a person has no money, collecting the judgment may be next to impossible. However, keep in mind that judgments are good for a period of ten years.

In the event you do decide to sue and you win the court will not automatically collect the money from the defendant. In order to collect your money you will be required to get a writ of execution from the court. A writ will not be issued until after the time for the defendant to appeal has passed and until certain documents are provided to the court.

Once the writ has been issued, plaintiffs need to locate property to be seized and inform the sheriff’s office where the property can be found so that they can carry out the writ. Defendants can be forced to disclose assets when a plaintiff files an order for disclosure. This process will take approximately thirty days. In the event that a defendant has been sued by other people, the sheriff will first execute writs on behalf of the prior plaintiffs.

Additional information on the conciliation court process can be obtained from your local county court office and at http://www.mncourts.gov/.

Tuesday, March 24, 2009

Audit & Record Keeping Provisions

Whether you have partners, or are contracting for royalties from another party, one of the most common provisions in any licensing & partnership contracts is one that provides a means and method of keeping financial records of the project or business. The exact language will differ slightly depending on the specifics of your circumstances, but common terms will include what types of books are kept, how and when audits may occur, and a description of what is to happen in the event of a problem with the records.

Records
While there are a variety of record-keeping methods, typical contract provisions regarding record-keeping will simply provide that the books are complete and accurate. In most cases it is understood that the books will be kept in accordance with “generally accepted accounting principles.” Furthermore, in some circumstances, state statutes may regulate how the books are kept.

Audits
Once it is decided what and how records are kept, one of the most important elements of a record-keeping provision is one that allows audits of the records. This is useful in keeping everyone on their toes, and it provides a means by which everyone can feel comfortable that everyone is being treated fairly. However, it is important to remember the difference between an audit and the right to inspect the records. While the right of a party to inspect records is often unequivocal and required by statute, the right to audit can be more easily limited. Audit provisions typically address when an audit may occur, who can ask for one, and who will pay for the audit. Often the number of times a party can request an audit during a specific time period is limited and how much notice is needed before an audit can occur also varies. Audit provisions usually provide that the party requesting the audit bear the cost of the audit.

Resolution
The last element of a record-keeping provision is one that spells out what happens in the event that an audit uncovers a problem. This element should lay-out how corrections will be handled in the event that the audit uncovers either overpayment or underpayment of funds. In addition, the provision can also provide that in the event that there is an underpayment in excess of a certain amount (5-10%), the cost of the audit shifts to the responsible party.

Providing an orderly way to handle potential disputes over money is a great way to resolve disputes before they start.

Wednesday, March 18, 2009

Tax Deductions for Creatives

As Tax day approaches its important to take into account targeted deductions that benefit Creatives. One such deduction is the Domestic Production Activities Deduction (AKA Section 199 deduction) which was meant to encourage U.S. job creation. The deduction was created in 2004 as a part of the American Jobs Creation Act of 2004 and is one of those nice benefits that is targeted at small businesses operating as sole proprietors, partnerships, LLC, or S Corps.

So What?
For many creative based businesses, this deduction may provide a significant deduction on gross income, based on the amount of W-2 wages spent in the production of their work. The deduction specifically singles out wages paid out in the sound recording, software (including websites), and film (excluding porn) industries, as well as producers of personal tangible items (clothing, books, etc.) for an additional tax credit against profits.

What to do?
Simple - if you are engaged in one of these categories, had a profit, and paid W-2 wages, make sure that your tax preparer is aware that you may have this additional 6% deduction available to you, or if you prepare your own taxes, be sure to look though the instructions for Form 8903 .

IRS Circular 230 Notice:
United States Treasury Regulations require me to disclose the following: Any tax advice included in this document is not intended or written to be used, and it cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code.

Tuesday, March 17, 2009

Response Regarding MN Arts Cuts

Recently I sent letters to my state representatives regarding the proposed disproportionate cuts to funding for the MN Arts Board. I was pleased to receive a response from my state senators which reads in part:

    . . . I believe if we cut arts funding proportionately to other areas of state spending, and do not use the dedicated funds to restore these cuts, we would be in keeping with the Constitution. I believe the Governor's proposed cut to the state Arts Board violates this constitutional requirement not to substitute new dedicated funds for traditional funding.

Thank you Senator - your thoughtful response will be remembered during the next election.

Thursday, March 12, 2009

Music Publishing Administrator

I recently had the opportunity to consider whether a US artist with airplay in Europe would be better served to find a publisher or to simply hire an agency to administer his rights overseas. While it is hard for any self-reliant musician to pay an extra percentage for doing something that they do themselves in the US, not considering such an arrangement might be leaving money on the table.

These agencies can provide independent musicians and small publishers with instant international reach, which includes their bookkeeping expertise, use of sub-publishers in other countries, administrative services to register the copyrights and to affiliate with performing rights groups, and options related to their services in shopping the music for other uses.

What to look for


When considering these groups, I recommend that you ask them about the following:
  • Do they have experience with your type of music? (Yes)
  • Will they register the copyright in the songs on your behalf? (Yes)
  • Will they handle the administration of registering you with U.S. rights societies? (Yes)
  • Will they collect mechanicals from foreign labels? (Yes)
  • Do they have affiliates in other countries where your music is popular? (Yes)
  • How often will they send statements (Quarterly)
  • Shopping (don’t expect it, but it can be added)

Foreign Administrative groups can be of great help in dealing with quirks of local/ non-US laws related to how royalties are calculated and paid. Having them work through the process on your behalf has its advantages and likely outweighs the extra percentage.

Wednesday, March 4, 2009

Who Owns What? - Tuesday March 10, 2009

On Tuesday, March 10 at 1 PM, the Twin Cities chapters of the National Writers Union and the Professional Editors Network will hold a free workshop about permissions and copyright and other intellectual property issues concerning writers and editors.

Location: St. Louis Park Library, 3240 Library Lane, St. Louis Park. Two attorneys—Debra Kass Orenstein and Kenneth Kunkle-- will explain copyright and permissions.

Please join us for this FREE event! For more details about the Twin Cities National Writers Union, visit http://www.nwu-tc.org For more details about the Professional Editors Network, visit http://www.pensite.org

Monday, February 23, 2009

Arts Funding in Minnesota

Dear Legislator,

I am writing to you concerning Governor Pawlenty's budget plan cutting arts related spending and elimination of the Arts Board by 2011. These proposed cuts are simply a bad idea, and are contrary to the express wishes of Minnesota voters.

Last fall, Minnesotans sent a clear message that they value the arts and felt that dedicated funding was an important statement of who we are. Governor Pawlenty’s cuts, however, seem to try and take back the very increase that voters demanded. Passage of the amendment was a clear message sent by voters that they want MORE investment in the arts and culture, not less.

A 2006 study showed that Minnesota non-profit art organizations had $840 million in economic impact on the state. The same study showed that for every one dollar of investment by the state art boards in artist, there is an $11 return on that investment. Furthermore, these non-profits are often the incubators for for-profits arts enterprises which represent millions more dollars in economic impact for our state. “The arts” in Minnesota are small business. Artists and arts organizations buy equipment and supplies; hire employees; rent studios; and contract for services. Budget cuts that affect this industry have a direct and immediate impact on more than just the artist, but also to the countless business and employees that they support. Funding through these agencies has an economic multiplier effect that should not be overlooked or dismissed.

According to a 2001 report by the National Governor’s Association Center for Best Practices, “If states intend to build their economies on the jobs of the future and improve rural communities…they must cultivate a creative workforce and attract arts-based businesses.” Yet, the proposed budget cuts will cut funding to organizations that cultivate this part of the economy by over 33%.

Yes, it can be argued that, the arts now have dedicated funding through the state sales tax, however this funding is still in the pipeline and is years off in being fully realized. Cutting funding now fails to take seriously the importance voters have placed on the arts, and will harm many small businesses in these productive industries at a time when they are in a great position to help invigorate the economy.

Cutting funding for the arts in Minnesota is not in the best interest of Minnesotans. The arts community uses the money it receives, it does not simply use the grants and funding to pay down credit cards or by television sets and DVD’s – they use the money to run their business and support other businesses and individuals. The money they receive is recirculated throughout Minnesota’s economy many times over and in the process it enriches our lives in the ways that Minnesotans have said they want. Please see to it that this important part of our local small business economy is not harmed by short sighted thinking about what artists bring to our economy – oppose these reductions.

Saturday, January 31, 2009

Work for Hire

One issue that people often overlook when drafting agreements involving creative works is the copyright concept of “work for hire.” Failing to come to a clear understanding of the parties intention can cause unnecessary conflict that neither party really benefits from.

What is Work for Hire
Simply put, work for hire addresses issues of copyright ownership when the work has been created for the benefit of someone other than the creator. Typically, the owner of a copyrighted work is the person who creates it, however, if a work is deemed to be a Work for Hire then ownership belongs to the hiring party. Work for hire situations occur in two basic ways; 1. works created by employees and 2. works created by independent contractors.

Federal law states that Works Made for Hire is:
    (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. (17 U.S.C. sec 101)
Employee Presumption
Works created by employees in the scope of their employment are presumed to be works for hire and are owned by the employer. The main question in these situations is whether the work was created in “the scope” of the employee’s employment. For example, the janitor of a publishing company is not not responsible for writing manuscripts, however, he might be responsible for maintaining training materials related to his job - the manuscript would be outside the scope of his employment, while the training materials would belong to the company as a Work Made for Hire.

Contractors
However, many works are created in situations other than employee/employer relationships. In the case of professionals like graphic artists, photographers, or web page designers a work may be created under the terms of a contract. In these cases, if the work falls within certain categories of works (it may also be a work for hire. These guidelines require that the work be of a certain type, specifically created for the hiring party, and that the parties must explicitly state in writing that they intend for the work to be a work for hire.

For the creative professional, the distinction of what is and is not a work for hire is important. Clarification of the issues from the start is a great method of avoiding misunderstandings down the road.

Friday, January 30, 2009

Forum Selection in Creative Commons Licenses

Users of Creative Common's licenses beware!

Chang v. Virgin Mobile USA, LLC
2009 WL 111570 (N.D.Tex. January 16, 2009)

Texas plaintiffs posted a photo to a popular picture sharing website using a Creative Commons licenses. The photo was then down loaded by an Australian company who used the photo inconsistent with the Creative Commons 2.o license and Plaintiff's wishes. Plaintiff sued Defendant in a Texas court and Defendant moved to dismiss for lack of jurisdiction. While many factors were considered, of particular note is how to court pointed out that the license did not require the license to take place in Texas.

In fact, the Creative Commons license used specifically does not contain either a forum selection clause or a choice of law clause that would outline where cases should be heard and under what state law a dispute will be analyzed. T he Creative Commons FAQ specifically notes that the selection of jurisdiction in the license

These clauses are commonly used in most transactions to provide some guidance to the parties to know where and under whose laws a dispute will be heard - to avoid problems such as the one in the Chang case.

While I understand the passion for Creative Commons licensing, it is this type of outcome that highlights for me why licensing parties should take a step back and make sure they really understand what they are doing when using these licenses. It also raise the question in my mind of whether licensors should consider making some additions to these terms such as adding in something stating the residency of the licensor, that the license is entered into under the laws of licensor and that all disputes will be heard in the licensor's state/forum.

Monday, January 26, 2009

Baseball Uniforms as Trade Dress: MLB v. Donruss

An interesting case was recently filed involving baseball card manufacturer Don Ross and Major League baseball. Among several counts involving, minor league players, retired players and current players is a claim that that Donruss inappropriately used the trade dress of the former Major League players. Interestingly, the complaint seems to indicate that there isn't a claim of trademark infringement related to the cards with the former players. While it is not spelled out in the complaint, it appears that the claim is that even though the logos have been removed from the pictures of these players (thereby avoiding the trademark claim) that because the colors and other parts of the uniform are visible, the trade dress has been infringed.

It is standard practice to remove the logos on licensed memorabilia of sports figure, but if this case plays out in favor of MLB, it would appear players will have to be completely stripped of any identifying indicia to avoid the claims by MLB. Trade dress must be distinctive and non-functional ~ while I will admit to not being a major sports fan, but it seems to me that proving these elements is going to be a difficult task for MLB. If in fact MLB is claiming a trade dress in the uniforms and is successful, it raises all sorts of issues for merchandisers, former players, and sporting good manufacturers.

The complaint has been loaded online at http://www.scribd.com/doc/11055023/Complaint-MLB-Don-Russ-Baseball

Monday, January 12, 2009

Business and the Law Seminar

This evening I had the pleasure of giving a presentation at Women Venture to several women working to develop and start new businesses. I gave a presentation entitled Business and the Law which covered a variety of issues related to protecting the business owner's rights and managing their liability risks.

While it is easy to focus on the doom and gloom of the big picture economy, hearing the plans of these business women highlights the importance of not allowing the stories in the news to prevent businesses from moving forward. Opportunities do exist -people simply need to keep an eye out for the right situations. People wiling to take the risk at this point will be well situated when better economic times come along.

For more information on Women Venture and their programs, go to www.womenventure.org.

Friday, January 9, 2009

An Oldy But Goody: Copyright & Fireworks

The following is from a response I made to a listserv (remember those?) over ten years ago. I got to thinking about the subject again yesterday after The Colbert Report made a reference to a fireworks display I worked on a long time ago.

    From: Kenneth L. Kunkle XXXXXXXXXXXXXXXXXXXXXXXXXX
    Date: Tue, 06 Oct 1998 22:59:52 -0500

    I regret that I have not been looking at the list for a few days, as this is a topic I may be able to shed some light on.

    For background, prior to entering law school I was employed by a firework display firm with my primary responsibility being in the area of... you guessed it... choreography and design of large scale displays set to music (referred to as pyromusicals).

    It was standard for all of our work to be submitted to the copyright office for registration and to my knowledge they were always accepted. There is a great deal of work that goes into choreographed displays, timing colors, patterns, rhythm, intensity, placement, sound and so on are all factors that are put into artistic displays. In other words, a great deal of expression is put into the work. This information can then be put into a variety of script forms (for computer or electric push buttons) for the display to be fired by technicians in the field in a manner that is choreographed to the pre-selected music. As a result designers develop reputations and styles. Some companies develop unique combinations of songs to specific types of fireworks. Indeed, there are competitions for displays all over the world.

    As for some of the comments made so far.

    Can a display be fixed? Yes... a script is written containing information regarding when and what is fired. This can be analogized to both the computer script and the ballet.

    Is a display repeatable? Absolutely! the show you see in NY may be also used in FL. Or it may be repeated every night of a state fair. The best example is Disney (the nations largest consumer of fireworks) which has developed elaborate firing systems to place the shells (a.k.a. bombs) EXACTLY in the same place each night.

    Will the copyright office take a registration for this? Yup.

    Now does this mean that every display on the 4th is copyrightable? I doubt it. In reality the bulk of displays are done in an impromptu manner by hand shooters with only basic planning going into pacing, which is usually dictated by a safety factor of how fast can they be fired without causing injury, while dragging it out long enough that the customer feels they got a good show. However, a great deal of planning can go into a choreographed display. An example of the difference is: shooting 100 salutes (the loud ones) at the end of God Bless America is pretty standard fair, but firing 20 shells custom made to fit into a two minute song fired from multiple locations and scheduled to explode at precise moments during assorted crescendos while keeping in mind how it will look from a 3 mile radius from street level to the tops of buildings probably is.

    As for the notice that started this thread... I've never heard of a company trying to enforce their rights like this, however, it seems to me that if a photographer takes a photo that exploits the designs of a "designed" display (e.g. shell placement, color, etc) the designer should have a right to compensation. Additionally, if a designer has an original way of expressing something (e.g. a new way to choreograph a song) it seems to me that other companies shouldn't be able to come along and copy it. There is no reason why a display should be treated any different that a song, ballet, or painting. While choreography is the easiest thing analogize this to, in fact the art of display design is similar to musical creation, sculptural works (you must design a display in 3 dimensions to be seen from all angles), a painting (often the colors hanging in the sky in patterns or combination is the intent of the design), or a dance (rhythm, placement, and pacing).

    As a side note I should mention that some shell builders have also attempted to copyright the designs of their shells. This is particularly true of pattern shells (i.e. shells that explode and display a pattern such as a heart, star, fish, or a letter of the alphabet).



As time has passed since then, and I am no longer involved with these displays, I note that I have changed my position on this a bit. While I maintain that the display is clearly subject to copyright, it is highly likely that most photographs of a display would incorporate a fair use appropriation of the display and would not infringe.

Kinda fun looking through old posts though.