## Facts

- Gregory Poe, an artist and fashion designer, created “Aquatint No. 5,” a three-dimensional, bikini-like piece made primarily of flexible clear vinyl and covered rock media.
- Poe characterized Aquatint No. 5 as “visual art” and sought to register it as a sculptural work, but the Copyright Office refused registration.
- Poe allowed photographer Carla Weber to photograph Aquatint No. 5; Weber later photographed band member Dale Bozzio wearing it.
- One photograph of Bozzio wearing Aquatint No. 5 was used as the cover art for a Missing Persons album.
- Poe claimed the album-cover use was unauthorized and sued Missing Persons, band members, and related record-company defendants for copyright infringement, Lanham Act § 43(a) false designation/unfair competition, and related state-law claims.
- Defendants asserted Aquatint No. 5 was a functional swimsuit (a useful article) and therefore not copyrightable.

## Issues

1. Whether the summary-judgment record raised a genuine issue of material fact as to whether Aquatint No. 5 was a utilitarian article of clothing or a work of art, affecting eligibility for copyright protection.
2. Whether the district court properly granted summary judgment on the federal claims and dismissed the pendent state claims.

## Decision

- The Ninth Circuit reversed the district court’s grant of summary judgment and remanded for further proceedings.
- The court held the record presented a disputed issue of material fact on whether Aquatint No. 5 was a utilitarian article of clothing or a work of art.
- Because the federal claims were reinstated, the dismissal of the pendent state claims could not stand on that basis.

## Legal Principles

- Summary judgment is improper where the evidence shows a genuine dispute over a material fact central to the claim.
- In copyright disputes involving clothing-like objects, whether the item is a “useful article” or instead a pictorial, graphic, or sculptural work may be fact-dependent and not resolvable on a thin record.
- A court should not resolve the dispositive “art versus clothing” characterization solely by visual inspection when competing evidence supports different classifications.
- Fact-finders may consider creator intent, industry custom, expert testimony, and market treatment when determining whether an object is art or a utilitarian article for copyright purposes.

## Conclusion

The Ninth Circuit did not decide whether Aquatint No. 5 was copyrightable; it held only that the parties’ evidence created a triable factual dispute about whether the object was a work of art or a utilitarian garment, making summary judgment improper and requiring further proceedings on the federal and related state claims.


Poe v. Missing Persons, 745 F.2d 1238 (9th Cir. 1984)