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Copyright Protection Denied Due to the Inseparability of an Item’s Artistic Features and its Usefulness

By Contributor Attorney Ashley T. Ellerbe, JD, cum laude, Phi Delta Phi Legal Honor Society, Florida Coastal School of Law, former legal intern for CSX Corporation.

For some copyright holders, the ruling of the United States Ninth Circuit Court of Appeals in Inhale, Inc. v. Starbuzz Tobacco, Inc. may be a disappointing one. Although Inhale, Inc. had a registered copyright for the shape of a hookah water container, that registration would not grant them the protection that they anticipated. 

Inhale sued Starbuzz claiming copyright infringement due to Starbuzz’s use of hookah water containers that were identical in shape to Inhale’s container.  The district court held that although Inhale has a registered copyright, its copyright registration is invalid because the hookah water container is not copyrightable.  The shape of the container is only copyrightable if the sculptural features are capable of existing independently of the utilitarian aspects of the container.  Moreover, the distinctive shape of an item is not a factor in determining whether the artistic features can be separate from its usefulness.  The district court concluded and the court of appeals affirmed that the shape of the container accomplishes its function which is to hold the contents within its shape, thus making the hookah water container uncopyrightable.  Furthermore, to keep a tight seal on Pandora’s Box of potentially similar frivolous claims against innocent defendants, the court of appeals affirmed the lower court’s award of attorneys’ fees and the court of appeals awarded attorneys’ fees that incurred in the defense of the appeal.