Selling New York Intro - H 2012
HGTVA design company that specializes in high-end furniture has failed in its effort to show that virtual furniture displayed on HGTV’s Selling New York constitutes copyright infringement, trade dress infringement and unfair competition.
Selling New York features real estate brokers selling apartments to New York’s elite. On January 13, 2011, HGTV aired an episode entitled “The Big Buy In” where real estate brokerage Core Group sought to sell a condo at 240 Park Ave South for nearly $6 million. In the episode, Core’s CEO discusses the fact that the property is less appealing because it is unfurnished.
So Core contacted Heptagon, a maker of high-end furniture including a line by Andre Joyau, a favorite of such notables as director Sydney Pollack and fashion designer Donna Karan. Heptagon initially agreed to help out by providing photographs of the Joyau furniture. But the two companies couldn’t come to a final agreement as Core refused to purchase an insurance policy for possible use of the real furniture.
Instead, Core took the images of Heptagon’s furniture and created a virtual, fully-furnished replica of the apartment to show interested buyers. This included a virtual Cocoon Chair, a virtual Cross Table, a virtual Form Table, a virtual Shimne Vase, and a virtual Sylvan Floor Lamp.
As shown on TV, the trick worked. The end of the HGTV episode depicts Core selling the property for almost the full asking price.
Heptagon then sued Core, leading to a recent decision by New York federal judge Laura Swain.
The judge noted that the Copyright Act protects “pictorial, graphic, and sculptural works,” but explicitly limits the protection of utilitarian or “useful” articles.
Does virtual furniture shown on TV qualify? How worried do those with commercial enterprises have to be about displaying design works of originality like furniture, clothing and jewlery?
Heptagon was unable to get a copyright registration, and in considering the copyrightability here, Judge Swain ruled that Heptagon had failed to allege the necessary facts showing that the design elements of the furniture were physically or conceptually distinct from the furniture’s utilitarian elements.
An example of the judge’s reasoning:
“Heptagon argues that the ‘rectangle or silvery bar’ that is part of this lamp is physically separable from the lamp’s functional aspects, as it does not affect the lamp’s ability to produce light. The appended exhibit shows, however, that the silvery bar supports the standing lights, and could not be separated from the lamp without adversely affecting its function as a free standing upright lamp.”
Similarly, the trade dress claim failed because the furniture wasn’t shown to be anything more than functional.
The case has now been dismissed.
E-mail: eriqgardner@yahoo.com
Twitter: @eriqgardner
