## Facts

- Kay Berry, Inc. designed and sold decorative cement “Garden Accent Rocks,” including Sculpture No. 646, a rectangular, stone-like sculpture bearing a public-domain memorial poem.
- On the face of No. 646, the poem appeared in a five-line format, with a right-leaning font and capitalized first letters for each word.
- In 1997, Kay Berry sought copyright registration for its line of Garden Accent Rocks by submitting a catalog showing photos and descriptions of the individual sculptures; the Copyright Office issued a registration describing “sculptural works with design and text.”
- In 2003, Bandwagon, Inc. supplied Taylor Gifts, Inc. with a “Memory Stone” resembling No. 646: a similar rectangular stone-like object bearing the same poem in a similar five-line layout, with similar typographic styling.
- Kay Berry sued Taylor and Bandwagon for copyright infringement based on alleged copying of Sculpture No. 646.

## Issues

1. Whether Kay Berry’s catalog-based registration was valid so as to support an infringement action concerning Sculpture No. 646.
2. Whether Sculpture No. 646 contained protectable expression—despite using a public-domain poem—based on its sculptural form and visual arrangement of text.

## Decision

- The Third Circuit reversed the district court’s summary judgment for defendants and remanded.
- The court held the registration was valid under single-work registration principles because the sculptures were published together as a single unit of publication, even if they might not qualify as a proper group registration.
- The court held Sculpture No. 646 met the minimal creativity requirement for copyright protection based on its sculptural and visual presentation, notwithstanding the public-domain status of the poem.
- The court did not decide infringement on the merits; it held only that Kay Berry could proceed to try to prove impermissible copying.

## Legal Principles

- A copyright registration is not invalid merely because it fails group-registration criteria if the works were published together as a single unit and registered consistent with single-work registration requirements.
- Public-domain text may be used in a work without forfeiting protection in the author’s original selection, coordination, or arrangement and other original expressive elements.
- The idea–expression dichotomy bars protection for abstract ideas (e.g., memorializing the deceased) but permits protection for a creator’s particular expressive choices in form, layout, and presentation.
- A work satisfies copyrightability if it contains a minimal “quantum of creativity,” including creative visual and sculptural choices distinct from unprotectable material.

## Conclusion

The Third Circuit held that Kay Berry’s registration supported suit and that a decorative rock sculpture incorporating a public-domain poem could be copyrightable due to original sculptural and typographic arrangement, requiring further proceedings on infringement.


Kay Berry, Inc. v. Taylor Gifts, Inc., 421 F.3d 199 (3d Cir. 2005)