Tangle, Inc. holds copyright registrations for seven kinetic sculptures made of connected tubular segments that can be twisted into various poses. Aritzia, a retailer, displayed similar large-scale sculptures in its store windows. Tangle sued for copyright infringement, and after multiple attempts to amend its complaint, added a claim for trade dress infringement under the Lanham Act. The district court dismissed both claims, ruling that the kinetic sculptures were not fixed in a tangible medium and that Tangle failed to adequately describe its trade dress. Tangle elected not to amend further and appealed the dismissal of both claims.
The court addressed two distinct legal issues. First, regarding copyright, the court rejected the argument that kinetic sculptures are not fixed because they move. Citing the Copyright Act, the court explained that a work is fixed if its embodiment is sufficiently permanent to be perceived for more than a transitory duration. The court compared kinetic sculptures to dance, movies, and music, noting that these forms also involve motion yet are protected. The court held that Tangle's sculptures are material objects that can be perceived and reproduced, satisfying the fixation requirement. Second, the court applied the extrinsic test for substantial similarity. While individual elements like the shape of segments might be unprotected, the specific selection and arrangement of those elements are protectable. The court found that Tangle plausibly alleged that Aritzia made similar creative choices in selecting and arranging the segments, allowing the claim to proceed. Third, regarding trade dress, the court affirmed the dismissal because Tangle failed to provide a complete recitation of the concrete elements of its trade dress. The court held that mere photographs and partial descriptions are insufficient to put the defendant on notice of the specific asserted trade dress.
The case is remanded to the district court for further proceedings on the copyright allegations. The trade dress claim remains dismissed with prejudice. The decision clarifies that kinetic sculptures are eligible for copyright protection across their full range of motion, potentially opening the door for more litigation involving moveable art. However, it reinforces the strict pleading requirements for trade dress claims, requiring plaintiffs to explicitly list the concrete elements of their trade dress.
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