Gregory Poe v. Missing Persons, Dale Bozzio, Steven Brooks, Capitol Records, Inc., Capitol Industries-EMI Inc.

Gregory Poe (plaintiff), an artist and fashion designer, created an item called Aquatint No. 5 (Aquatint), which looked like a bikini swimsuit made from flexible plastic. Poe allowed a photographer to take pictures of a woman wearing Aquatint for the photographer’s portfolio. Without Poe’s consent, the music group Missing Persons, Dale Bozzio, Steven Brooks, Capitol Records, Inc., and Capitol Industries-EMI Inc. (collectively, the music-industry associates) (defendants) used one of these photos on an album cover. Poe applied for copyright registration of Aquatint as a sculptural work of art, but the registration was denied. Poe then filed a claim of copyright infringement in federal district court. In the claim, Poe asserted that Aquatint was a work of art. Subsequently, the music-industry associates filed a motion for summary judgment, arguing there were no material facts at issue because Aquatint was a swimsuit. The music-industry associates did not provide evidence supporting this argument. In a declaration opposing the motion for summary judgment, Poe described Aquatint as conceptual art, an artist’s portrayal of an article of clothing. The music-industry associates submitted one piece of testimonial evidence regarding the nature of Aquatint: Poe’s deposition testimony that Aquatint was a piece of visual art. The district court determined that Aquatint was a swimsuit, that the functional elements of the swimsuit could not be separated from the artistic elements, and that Aquatint could not be copyrighted. The district court granted summary judgment. Poe appealed.