Garden Rock Inscribed With A Public Domain Poem Was Eligible for Copyright Protection

Case: Kay Berry, Inc. v. Taylor Gifts, Inc. (3rd Cir. 8/30/05 - No. 04-3809).

The One Sentence Summary: A garden rock inscribed with an inspirational poem from the public domain was eligible for copyright protection and was properly registered by the filing of a catalog showing the rock.


What They Were Fighting About: Kay Berry registered a copyright for a catalog showing various garden stones, including a garden rock with a 5 line poem from the public domain (Sculpture No. 646). Kay Berry sued Taylor Gifts for selling a garden stone with the same poem. The district court granted summary judgment for defendant, holding that the registration was improper, and that the work could not be copyrighted. The Third Circuit reversed.

Third Circuit Holdings:

• The district court erred in finding that the registration was improper. The Third Circuit discussed the different rules for single work registration under 37 C.F.R. § 202.3(b)(3), and group registration under 37 C.F.R. § 202.3(b)(4). Kay Berry did not meet the requirements for a "group registration" because the Copyright Office has not established rules allowing for group registration of sculptural works. However, Kay Berry could have met the requirements for registration as a "single work" because the catalog that was filed with the Registrar showed the garden stone at issue.
• The work was sufficiently creative to be protected by copyright: "[Plaintiff] selected an inspirational poem from the public domain, adapted that poem to make it visually and rhythmically appealing, and then cast it on its own sculptural work. For these reasons, as well as those set forth above, we conclude that this quantum of creativity is sufficient to qualify for copyright protection. See Feist Publ’ns., 499 U.S. at 348; Reader’s Digest Ass’n, 821 F.2d at 806."
• The work was protectible under copyright because it had not merged with the idea.