Dude, You Can't Copyright That Hookah

We are totally supportive of efforts to inspire innovation.

We are convinced of the value that intangibles and intellectual capital bring to the economy and society.

We embrace opportunities to stimulate the brain while fostering learning and growth.

We just kinda think maybe this whole intellectual property thing gets a trifle, ya know, overly self-absorbed sometimes, if you know what we mean. JL

David Kravets reports in Wired:

A California hookah pipe maker’s copyright infringement lawsuit against a rival went up in smoke today when a federal appeals court ruled that hookahs are not copyrightable

The appellate decision is believed to be the first concerning the shape of the smoking instrument’s water container. Inhale Inc. claimed Starbuzz Tobacco was infringing its base design registered with the U.S. Copyright Office in 2011.
“With full knowledge that Inhale designed and developed the 3-dimensional shape and configuration of the Hookah Water Container that is protected by the copyright registration, Defendants willfully chose to reproduce, import, promote, advertise, and sell the infringing Hookah Water Container throughout the United States without the permission or consent from Inhale,” reads the Los Angeles federal court suit, (.pdf) lodged in 2011.
In case you didn’t know what a hookah pipe was, the lawsuit spells it out: “A hookah is a smoking device or water pipe that is used to smoke herbs, such as tobacco.”
The 9th U.S. Circuit Court of Appeals tossed the suit today, agreeing with a lower-court judge that the pipe’s base cannot be copyrighted.
“The shape of a container is not independent of the container’s utilitarian function — to hold the contents within its shape — because the shape accomplishes the function,” the appeals court ruled .pdf 3-0. “The district court correctly concluded that the shape of Inhale’s hookah water container is not copyrightable.”
Under copyright law, the water container is considered a “useful article,” the court wrote. It’s shape is copyrightable only if it incorporates “sculptural features that can be identified separately from, and are capable of existing independently of the utilitarian aspects of the container.”
The court today also upheld a $112,000 award in legal fees to Starbuzz, and also ordered more fees to the California company for defending itself against Inhale’s appeal.