Appeals Court Denies Copyright Claim Over Furniture on TV Show

HGTV's "Selling New York" digitally recreated what one apartment would look like furnished much to the chagrin of one furniture maker.

Television producers have a lot to worry about when making a show, but at least they can rest easy on the furniture that is part of the set.

On Friday, the 2nd Circuit Court of Appeals affirmed the dismissal of a lawsuit brought by a maker of high-end furniture alleging that that virtual furniture displayed on HGTV's Selling New York constituted copyright infringement.

In the lawsuit, Heptagon Creations Ltd claimed that its tables, vases and lamps were favorites of celebrities like the late film director Sydney Pollack and TV personalities Thom Filicia and Alina Cho. The plaintiff had discussions to help out the real estate brokerage firm Core Group sell a condo at 240 Park Ave South in New York and provided some pictures of their furniture.

Core was said to have taken the images of Heptagon's furniture without an agreement and used them to create a virtual, fully-furnished replica of the apartment to show interested buyers. Then, as depicted on a January 13, 2011 episode of Selling New York entitled "The Big Buy In," the property was sold for nearly $6 million.

Heptagon sued Core, but last year, a judge dismissed the claims. That's how it got to the 2nd Circuit for review.

In a summary order at the appellate court, it is noted that "copyright protection does not extend to 'useful articles,' but individual design elements that comprise a portion of a utilitarian article may be eligible for copyright protection if the design element is either physically or conceptually separable form the article's functional elements."

A mouthful, but it's an important concept that has guided recent litigation over questions like whether the Batmobile is eligible for copyright protection or whether Power Rangers costumes can be protected from copyright infringement.

The 2nd Circuit notes that in the case of the furniture used on reality television that the Copyright Office twice rejected Heptagon's copyright registration application for the furniture line because it found the furniture to be utilitarian.

The appellate court judges seem strict when it comes to figuring out whether a decorative element has usefulness.

The decision notes, "Though aesthetic considerations likely influenced the choice of wood in the Cocoon Chair, that choice was also dictated by the functional concern that a person sitting in the chair have a surface on which to rest his arms. The design elements that the complaint identifies in the lamps, including the texture of the lamp shades, are not akin to 'fanciful designs' imprinted on a lamp base, which might be copyrightable, but rather are related to 'the lamp[s'] utilitarian function as [devices] used to combat darkness."

And so forth.

TV set designers, this decision is for you.

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