Recently, we blogged about a copyright infringement lawsuit filed by U.K. artist Bruce Munro, most known for his light-based installation artwork, against the Fairchild Tropical Botanic Garden (“Fairchild”) in Coral Gables, Florida, alleging that the botanical garden imported, installed, and publicly displayed “indistinguishable copies” of Munro’s original sculptural artwork for an annual winter event called the NightGarden. In March 2020, Fairchild moved to dismiss the artist’s lawsuit. By its motion, Fairchild claimed that it cannot be liable for copyright infringement because Munro’s artworks are comprised of light fixtures that are mere useful articles containing no conceptually separable artistic design features and are thus not subject to copyright protection.

By decision dated July 13, 2020, the U.S. District Court for the Southern District of Florida denied Fairchild’s motion to dismiss.  In doing so, the court stated:

Defendants . . . argue that Munro fails to allege a valid copyrightable element in the Works because, in their interpretation of the Copyright Act, only “pictorial, graphic, and sculptural works” are protected.  See 17 U.S.C. § 102(a)(5).  Munro responds to this argument, reframing it as Defendants’ “dismissive” attempt to disparage the Works as “not art.”  The Court declines to enter this tit for tat; it does not speak to the Court’s role in adjudicating matters agreeable to the Constitution and laws to determine what “is art.” Suffice it to say, the Works are protectable under the Copyright Act as sculptures. (Decision at p. 5.)

Following the court’s denial of the motion to dismiss, Munro amended his Complaint to add his studio entity as a plaintiff and to add defendants, including an entertainment company and its controlling owner and a creative director and his companies, which are alleged to be the driving force behind the allegedly infringing event at the botanical garden.  Munro also added more instances of copyright infringement and copyright management information violations pursuant to 17 U.S.C. § 1202.  On August 5, 2020, the defendants filed an answer, denying the claims and asserting numerous defenses, including that the plaintiffs’ works are useful articles and are therefore not protectable by the copyright law.  According to the court docket, a mediation conference was held on August 6, 2020 in accordance with the Southern District of Florida’s local rules, and the mediator “declared an impasse.”  We will continue to watch this case with interest.

Munro et al. v. Fairchild Tropical Botanic Garden, Inc. et al., No. 1:20-cv-20079-SINGHAL/LOUIS (S.D. Fla.)