In Eliya Inc. v. Kohl's Department Stores, S.D.N.Y., No. 06 Civ 195 (GEL), 9/13/06, the court held, inter alia, that defendant Kohl's making a three-dimensional designer shoe based on a copyrighted two-dimensional image of that design registered with the Copyright Office by the plaintiff, Eliya, did not constitute copying for the purposes of a federal and common law copyright infringement claim.
At first blush, this case would appear to suggest that virtual world artists and architects, not to mention product designers, are free to copy 2-dimensional copyrighted works. After all, if a three-dimensional item of apparel does not infringe copyright on 2-D drawing of a design, this might suggest that anyone can copy a design in much the same way as the Supreme Court once ruled it permissible that copying music into player piano rolls was not infringing. This however, is not the case in what turns out to be a rather unremarkable opinion.
The court writes: "Strictly speaking, however, Kohl's has not copied Eliya's copyrighted work. Eliya has a copyright in the SHOE design, which is a two-dimensional representation of the side view of a shoe. Eliya does not allege that Kohl's has copied this two-dimensional picture; rather, Eliya alleges that Kohl's has created a functional three-dimensional shoe. However, Eliya has no copyright in an actual shoe, only a two-dimensional representation of one." In fact, the copyright covers only the two-dimensional artwork. "Eliya checked the box for two-dimensional artwork for SHOE. Accordingly, Eliya's copyright is for a two-dimensional etching."
Had defendant reproduced the design on the shoe (in the way that defendants reproduced the plaintiff's design on a sweater in the Lollytogs case), they would have been liable for copyright infringement. The court here makes a big deal out of the fact that the shoe design resembles the image without reproducing it. It goes on to suggest that because the shoe is functional and it impossible to separate the aesthetic and functional elements, there is no infringement. The real problem for the plaintiff here, however, seems not to be the functional quality of the shoe but to be bad lawyering. If someone had checked the box for "3D object" she would have prevailed. But because she checked the box for two-dimensional artwork, she could not protect the use of aesthetic elements of the design in a different medium.
So what's the upshot for virtual worlds? Well, we don't know enough yet about how courts will view objects inside a virtual space. Is a building in a virtual world a two- or a three-dimensional object? Is a shoe, for that matter, an object or a design when reproduced on the screen but possessing functional characteristics (i.e. my avatar can put on the shoe or bang it on the table)? If I want to make sure that my work is copyright protected inside and outside the metaverse, how do I copyright it? These questions have not yet been addressed. The Eliya v. Kohl's case, while not surprising or distinct from traditional principles of copyright law, does draw our attention to the fact that those who care about IP in virtual worlds ought to cross all the t's, dot the i's and check all the boxes.