ABSTRACT INTRODUCTION I. COPYRIGHT PROTECTION FOR QUILTS AS "USEFUL ARTICLES" A. Copyrightable Subject Matter and Useful Articles B. Copyright Protection for Quilts II. VISUAL ARTISTS RIGHTS ACT OF 1990 A. Policy and Goals of VARA B. Visual Works of Art Included and Excluded from VARA III. QUILT ARTISTS' RIGHTS A. Elevating Quilt Artists' Rights to Include Rights of Attribution and Integrity 1. Determining Congressional Intent for VARA 2. Protection Under State Artists' Moral Rights Statutes B. Maintaining the Status Quo for Copyright Protection of Quilt Designs CONCLUSION INTRODUCTION
Imagine walking into a museum and observing a display of five original pieces of artwork created in the United States. The display includes a sculpture, a painting, a quilt, a photograph, and a print--all original, all protected by copyright. (1) The Copyright Act gives all the artists an equal "bundle of rights," with one exception: four out of the five artists have their "moral rights" of attribution and integrity protected, but the quilt artist is not entitled to these rights because applied art is excluded from the Visual Artists Rights Act of 1990 ("VARA"). (2)
A quilt is art because it is beautiful, and a quilt is a useful article because it provides warmth and comfort. The quilt's dual purpose creates an inequity for the quilt artist. The useful articles or applied art (3) status of the quilt eliminates for the quilt's creator the right to claim protections that are readily available to artists who work in other media, such as paint, canvas, paper, stone or metal. These artists are able to protect their rights of attribution and integrity because their works function only as art. Alice Walker's Everyday Use expresses the duality of the quilt with poignancy when the mother asks her greedy daughter, who covets the family's antique quilts: "Well," I said, stumped. "What would you do with them?" "Hang them," she said. The mother is left thinking: As if that was the only thing you could do with quilts. (4) Ironically, if that were the only thing that could be done with a quilt, then the artist would be afforded the same rights of attribution and integrity as other visual artists. The reality of a quilt, however, is that it is more than art. It seems a harsh penalty that because a quilt can be useful, the quilt artist is offered fewer rights, especially when the underlying policy expressed by Congress under VARA seems to speak directly to the artist who created and labored to produce an original quilt. (5)
To understand how copyright law fails to protect useful articles and quilts, Part I provides a basic backdrop of copyright law as it applies to useful articles and specifically how quilt designs have been protected by copyright. Part II discusses the Visual Artists Rights Act of 1990 (VARA), which protects the moral rights of attribution and integrity for visual artists. This Part reviews congressional attempts to narrowly limit who is protected under VARA--a departure from the broad coverage under other regimes that protect moral rights. Part Ill addresses how the courts interpreted VARA and applied art within VARA's context. This Part also examines how the courts determine what artworks Congress intended to protect with VARA, with a particular focus on how this issue is treated in the legislative history. Part Ill then discusses how the legislative history supports protecting quilt artists' rights of attribution and integrity because a quilt artist fits the profile of the artist Congress intended to protect with this act.
COPYRIGHT PROTECTION FOR QUILTS AS "USEFUL ARTICLES"
A requirement of VARA is that the visual art must be subject to copyright protection and accordingly must be copyrightable subject matter. (6) Copyrightable subject matter is limited to the design elements of the quilt. Therefore, its status as a useful article eliminates the quilt from qualifying for protection under VARA. (7)
Copyrightable Subject Matter and Useful Articles
To qualify for copyright protection, a work must be "independently created by the author ... and ... it [must] possess at least some minimal degree of creativity." (8) The original work must be "fixed in any tangible medium of expression" and fall within the Copyright Act's enumerated categories. (9) Quilts are protected under the Copyright Act as "pictorial, graphic, and sculptural works." (10)
The Copyright Act defines pictorial, graphic, and sculptural (PGS) works to include a wide range of traditional arts and those works that exist in the grey area between copyrights and design patents. (11) The term "useful article" often implicates those works included in the PGS category since a useful article is defined as "an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or convey information." (12) As a result, the useful article is not protected by copyright unless the article incorporates features that can be identified separately from the utilitarian function, whether physically or conceptually, and only those separable features are copyrightable subject matter. (13)
The underlying policy for the useful article doctrine is to avoid providing greater rights through copyright law than would be afforded through a design patent. (14) Incorporating artistic elements, as well as industrial design into utilitarian objects creates an intellectual property rights ambiguity. The Supreme Court confronted this ambiguity in the seminal case, Mazer v. Stein. (15) The Supreme Court held that the copyright registered for a sculpture of dancing figures was valid even though the sculpture was intended for use as a lamp base. (16) In response to Mazer, the Copyright Act of 1976 codified the holding "that works of art which are incorporated into the design of useful articles, but which are capable of standing by themselves as art works separate from the useful article, are copyrightable." (17)
Copyright Protection for Quilts
A quilt is a coverlet for a bed; it consists of two layers of fabric with some filling between the layers and stitching to prevent the filling from shifting. (18) Thus, as defined, the quilt has a utilitarian function. The design elements of the quilt, however, are eligible for copyright protection; therefore, many quilt designs are copyrighted. (19) When a quilter purchases a pattern, she is allowed to make the quilt for personal use but infringes on the copyright if she creates the quilt for anything other than personal use. (20) Quilters desiring to create a quilt for a fundraising raffle are prudent to seek permission from the design's copyright holder. (21) It is only the design on the quilt that is copyrightable subject matter. Because it is a useful item, the quilt as an object is not copyrighted.
Two recent cases illustrate how copyright protects quilt designs. In Brown v. McCormick, the District Court of Maryland examined a case where the plaintiff, Barbara Brown, sued the defendant, Patricia McCormick, for copyright infringement for unauthorized use of fifteen quilt block patterns created by Brown for McCormick's use in the movie, How to Make an American Quilt. (22) The complaint contained sixteen counts of infringement, which fell into three categories: (1) the unauthorized use of the quilt or its image by McCormick; (23) (2) the unauthorized derivative work McCormick made from one of the Brown copyrighted pattern blocks; (24) and (3) the quilt's appearance in a painting. (25) The court found that Brown's designs were copyrightable. (26) The court also found that McCormick infringed Brown's copyrights: (1) when she used the quilt for any purpose beyond the authorized purpose for the filming of the movie and (2) when she copied the design of one of the blocks for another quilt. (27) The court found Brown's copyright was not infringed, however, when (3) the quilt appeared in the painting because the print was "rendered suggestively" and was not easily recognizable as portrayed in the painting due to "insufficient detail." (28) The court also held the infringement was not willful and awarded Brown only actual and statutory damages. (29) This case is a good example of the scope of copyright protection available for quilt patterns. The court found the design was original enough to be copyrightable subject matter. (30) The unlawful derivative block also was infringement of Brown's exclusive rights to create derivative patterns. (31) Also, McCormick infringed on Brown's right to limit the use of the display of the quilts created from her copyrightable material. (32) Essentially, all the typical rights of copyright were available to Brown for the quilt block patterns she created for the movie.
In Boisson v. Banian, Ltd., the United States Court of Appeals for the second Circuit examined the complaint made by plaintiff, Judi Boisson, against defendant, Banian, Ltd., for copyright infringement. (33) Boisson claimed Banian sold quilts that resembled two of her quilt designs for which she had registered copyrights. (34) The United States District Court for the Eastern District of New York held that Boisson's copyrights were not infringed because no substantial similarity existed between the defendants' quilts and the protected elements of Boisson's quilts. (35) The Second Circuit held that the district court's finding that the layout of the...