The Eleventh Circuit recently reversed a district court ruling that a design for
laminated flooring was not original enough to be copyrighted in Home Legend, LLC v. Mannington Mills, Inc., 784 F.3d 1404 (11th. Cir. 2015).
The district court had granted summary judgment in favor of Home Legend, the accused infringer. Both companies design laminate wood flooring which consists of wood fiber board with a decorative layer of paper glued on top. Mannington Mills copyrighted a design called "Glazed Maple" which consisted of a digital photograph of fifteen stained and supposedly worn wood planks. The evidence showed that the design is actually raw wood modified to appear worn over 20-30 years to create a rustic look, using hand tools to gouge the wood and stain applied unevenly to show "wear and tear." Then the planks were arranged and photographed. After registering the copyright Mannington discovered that Home Legend was selling flooring it contends is "virtually identical" to the Glazed Maple design.
Home Legend argued that the copyright should be thrown out because it covered subject matter that was not eligible for copyright. First, it argued that the design lacked the requisite originality to be considered an original work of authorship under Section 102(a) of the Copyright Act. The Eleventh Circuit held that the floor design was original enough for copyright, noting that for purposes of copyright law originality only requires "independent creation" by the author "plus a modicum of creativity." The district court found that the design merely depicted elements found in nature. However, the Eleventh Circuit noted that the photographs were not merely of the raw wood grain, which would not be original, but consisted of raw wood that had been worked to resemble what the designers thought aged wood "might" look like. Thus, the creative element necessary was present in the design. Moreover, the court noted that the designers had specifically chosen certain planks and arranged them in a way they deemed most aesthetically worthy of an old rustic hardwood floor. Thus, enough creative effort had been exerted to satisfy the originality requirement.
Home Legend also argued that the decorative paper image of maple was inseparable from a useful article, the wood flooring fiberboard to which it was attached. Section 101 of the Copyright Act states that the design of a useful article is only copyrightable as a pictorial, graphic or sculptural work if the design incorporates features that can be identified separately from and are capable of existing independently of the utilitarian aspects of the article. The court below had reasoned that neither the flooring nor the design layer would be marketable without the other, and thus it is inseparable. The district court reasoned that a photo of a wood floor could only be sold attached to floorboard. However, the court noted that separability means that the design is either physically severable from the utilitarian article or conceptually severable. Here, clearly the paper designs glued onto the flooring are interchangeable with others, and therefore obviously physically severable. It was also conceptually severable, according to the court, because the design could conceivably attached to something besides flooring, such as wallpaper.
The court concluded by noting that the copyright for the design is not that strong, because the features of each individual plank in the photo are not copyrightable because this merely shows the features of the underlying wood (although this seems at odds with the court's description of the creative work that went into working on each plank). Therefore the design is a derivative work (the strongest protection is for a creative work, second is for a derivative work, and third is for a compilation). Therefore only identical or near-identical copies infringe the trademark. It would not be infringing to use similar efforts to create and aged maple design.
This finding however, provides cold comfort for Home Legend, because it apparently copied the design and infringed the copyright.
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