The answer is yes. If a court viewed the sculpture as a useful article, it would likely grant copyright protection only to the nonuseful elements of the design.  This occurred in OddzOn Products, Inc. v. Oman, a 1991 decision in which the D.C. Circuit Court upheld the U.S. Copyright Office’s refusal to copyright a soft-sculpture ball called the Koosh. The court classified the ball as a useful article and determined that its artistic feature—its tactile quality—could not exist independently from its utilitarian aspects, so the ball itself was ineligible for copyright. 

In our view, the green ball would have had a better chance of copyright protection if the artist had added some further expression of creativity. In a famous 1992 U.S. Court of Appeals decision, Atari Games Corp. v. Oman, Judge (later Supreme Court Justice) Ruth Bader Ginsburg reversed a lower court’s refusal to require copyright registration of the early video game Breakout, which involved a virtual paddle, ball and wall designed of simple, colored geometric shapes. Although Judge Ginsburg faulted the copyright office’s conclusions, she did seem to accept its position that if it were to examine “a painting consisting entirely of rectangles and find it copyrightable, it is important to understand that this decision would be based on creative elements such as depth, perspective, shading, texture of brushstroke, et cetera and not on the geometric shapes per se” and that “recalling the creativity of the work of Mondrian and Malevich, . . .  the arrangement itself may be indicative of authorship.” 

We observed that, even if Babe managed to register a copyright for Fair Ball, he would have difficulty right off the bat preventing others from making similar works, because his copyright would be very “thin,” existing only in the use of the particular shade of green applied to the ball.

According to the intellectual property attorney David S. Korzenik, of Miller Korzenik Sommers LLP, in New York City, “While minimalist art may well receive minimalist protection, the concept of copyrightability was never intended to double as a definition of art.”

Babe, who had been nervously pacing the booth, suddenly spat out his wad of chewing tobacco, scooped up Fair Ball and sidearmed it to Jeffrey. “If you ask me,” he griped, “all this legal gibberish is just an excuse for judges to deny protection to art that they don’t like or can’t understand.”

He wasn’t entirely out in left field. Although judges are not supposed to decide what is art and what merits protection (see the May 2006 Brothers in Law column), aesthetic prejudices inevitably play a role in their decision making. Contrast, for example, the 1976 Second Circuit case L. Batlin & Son, Inc. v. Snyder with the 1959 Southern District of New York case Alva Studios, Inc. v. Winninger. In the former, the court refused to protect a plastic copy of a cast-iron piggy bank in the public domain on the grounds that the plastic version showed only trivial variations from the original. In the latter case, involving a copy of Rodin’s famous Hand of God, the court found that an exact copy of the Rodin work satisfied copyright’s originality standard even though the only distinguishable difference was in size. The court did, however, note that the work must be “original in the sense that the author has created it by his own skill, labor and judgment without directly copying or evasively imitating the work of another.”

We advised Jeffrey and Babe to abandon their plans for Fair Ball, but, as it happened, our concerns were baseless. The dealer turned out to be a savvy marketer, and by the end of Art Basel he had hit a home run—selling Fair Ball, and the concept behind it, to a Scandinavian design chain for a mint.

As the lawyer and art consultant Virginia Rutledge points out, “Art and copyright are different games. A thin copyright isn’t worth much, but some highly original art has been made out of very minimal gestures. The value of Duchamp’s Fountain has nothing to do with its copyright.”