In a decision published last week, a panel of the Ninth Circuit held that kinetic sculptures - works that incorporate movement as a fundamental element - are potentially eligible for copyright protection, even though they are volatile, changeable creations that are not fixed in a single, static state.

Tangle (the plaintiff) has copyright registrations for seven kinetic sculptures. Each sculpture is made from either 17 or 18 identical, connected, 90-degree curved tubular segments, usually made of chrome. The segments can be twisted or turned 360 degrees where any two segments connect, enabling the user to create an infinite number of poses. If you like fidget toys, these sculptures were made for you. Below are images from Tangle's copyright registrations (which were included in the district court's opinion):

Aritzia (the defendant) owns and operates retail stores in the United States and Canada that sell lifestyle apparel. In 2023, Aritzia dressed its retail store windows with fuchsia-colored sculptures that, like Tangle's, were made with 18 identical, connected, 90-degree curved tubular segments that can be twisted 360 degrees at each connection point. Below are images of Aritizia's windows from the lower court's decision:

Aritzia's sculptures were larger and a different color than Tangle’s, and Aritzia’s were finished in a shiny chrome whereas most of Tangle’s were matte. But there is no disputing that all the sculptures look like spiraling stacks of shiny sausage links.

Tangle sued Aritzia for copyright and trade dress infringement. The district court granted Aritzia's motion to dismiss the complaint under Rule 12(b)(6). (We covered that decision in this post). On appeal, a panel of the Ninth Circuit reversed the dismissal of the copyright claim but affirmed the dismissal of the trade dress claim. In this post, I will focus on the copyright issues.

Aritzia argued that because copyright law only protects works that are “fixed in any tangible medium of expression” (17 U.S.C. § 102(a)), Tangle's sculptures could be the subject of a valid copyright only once they were “fixed” in specific poses. The Ninth Circuit disagreed. Under the Copyright Act, a work is “‘fixed’ in a tangible medium of expression when its embodiment in a copy ... is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” (17 U.S.C. § 101.) The fact that Tangle's sculptures were designed to be arranged into various poses did not mean that they were, per se, not “fixed” for copyright purposes. The court compared Tangle's sculptures to other forms of expression involving motion, such as dance, movies, and music, all of which are protected under copyright law despite their lack of stasis. The court continued:

“Here, Tangle’s sculptures are material objects, so they qualify as “copies.” See 17 U.S.C. § 101. In addition, those material objects can be “perceived” and “reproduced” for more than a “transitory” period. See id. As embodied in the sculptures, Tangle’s expression therefore is “‘fixed' in a tangible medium,” even though the sculpture may take different poses. Tangle’s registered copyrights are thus valid and protect its works across their full range of motion.” 

The court noted that a different holding would foreclose copyright protection for works created by artists like Alexander Calder, Jean Tinguely, and George Rickey - an outcome that would be twisted, sister.

Next, the court held that, at the pleading stage, Tangle had plausibly alleged that Aritzia's sculptures were substantially similar to Tangle's works. The court noted that the individual elements of Tangle's sculptures - such as the number of segments, their shape, and their mode of connection - were not subject to copyright protection when viewed in isolation. However, Tangle could claim copyright protection over the selection and arrangement of these elements, provided that selection and arrangement is original (see this post and this one). In the body of the opinion, the court suggested that Tangle's sculptures might enjoy “broad” copyright protection because "a wide range of possible expression can result from different choices about the number, shape, and proportions of segments used in a sculptural work, whether to make the segments uniform, and how to connect them” (cleaned up). However, in a footnote the court pulled back and noted that ”a more complete record may show that the sculptural elements can be combined only in a few ways," in which case Tangle's sculptures would enjoy only “thin” copyright protection and would be infringed only if Aritzia's sculptures were “virtually identical." (For more on thick vs thin copyrights, see this post.) No doubt, the parties will be fighting about this later.

Finally, comparing the selection and arrangement of the elements in Aritizia's and Tangle’s works, the court found that Tangle had “plausibly” alleged that “the creative choices [Tangle] made in selecting and arranging elements of the protected works are substantially similar to the choices Aritzia made in creating its sculptures” (cleaned up). Specifically, Tangle had alleged that Aritzia’s sculptures, just like Tangle’s, have the same number of segments; those segments were identically shaped and sized; and those segments can be twisted or turned 360 degrees where any two segments connect. That was enough to survive a 12(b)(6) motion.

The court ended the opinion with yet another warning: “Perhaps discovery and expert opinions may clarify these issues, and perhaps a jury may need to decide whether Aritzia’s sculptures are substantially similar to Tangle’s sculptures under the intrinsic test. But these are questions best saved for a later day” (cleaned up). 

In other words, don't get it twisted:  this case is far from over.

Tangle, Inc. v. Aritzia, Inc., __ F.4th __, 2025 WL 85839 (9th Cir. Jan 14, 2025)