PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

____________________________________ 

ZAHOUREK SYSTEMS, INC.; 

JON ZAHOUREK 

 Plaintiffs Counterclaim 

 Defendants - Appellants, 

v. 

BALANCED BODY UNIVERSITY, 

LLC, 

 Defendant Counterclaimant - 

 Appellee. 

______________________ 

ZAHOUREK SYSTEMS, INC.; 

JON ZAHOUREK 

 Plaintiffs Counterclaim 

 Defendants - Appellee, 

v. 

BALANCED BODY UNIVERSITY, 

LLC, 

 Defendant Counterclaimant - 

 Appellant.

No. 18-1300 

No. 18-1312 

_________________________________ 

Appeals from the United States District Court 

for the District of Colorado 

(D.C. No. 1:13-CV-01812-RM-MLC)

_________________________________ 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 21, 2020

Christopher M. Wolpert 

Clerk of Court
2 

David Nimmer, Irell & Manella LLP, Los Angeles, California (Dennis J. 

Courtney, Irell & Manella LLP, Los Angeles, California; Luke Santangelo 

and Nicole Ressue, Santangelo Law Offices, P.C., Fort Collins, Colorado, 

with him on the briefs), on behalf of the Plaintiffs Counterclaim 

Defendants. 

Carolyn V. Juarez, Neugeboren O’Dowd P.C., Boulder, Colorado; John R. 

Posthumus, Polsinelli, Denver, Colorado (Gordon E.R. Troy, Shelburne, 

Vermont, with them on the briefs), on behalf of the Defendant 

Counterclaimant. 

_________________________________ 

Before BACHARACH and CARSON,

* Circuit Judges. 

_________________________________ 

BACHARACH, Circuit Judge. 

________________________________ 

 These appeals involves a sculptural work called “the Maniken,” 

which portrays the human body. The overarching issue is whether the 

Maniken is a “useful article” under the copyright laws. If the Maniken is a 

useful article, it wouldn’t ordinarily be protectible under the copyright 

laws. We conclude that a genuine issue of material fact exists on whether 

the Maniken is a useful article. 

* The Honorable Monroe McKay served on the panel at the time of oral 

argument, but he passed away before we issued this opinion. He did not 

participate in the decision, and the two remaining panel members 

constitute a quorum. See 28 U.S.C. § 46(d); Fish v. Schwab, 957 F.3d 

1105, 1110 n.* (10th Cir. 2020). 
3 

1. The Maniken portrays the human body. 

 Like a skeleton, the Maniken portrays the human body; but the 

Maniken dwarfs a standard classroom skeleton and facilitates education by 

allowing students to apply clay where human tissues would appear. On the 

left of each picture is the Maniken, and on the right is a standard skeleton.1

2. Balanced Body University uses the Maniken, and Mr. Zahourek 

and his company sue for copyright infringement. 

The defendant, Balanced Body University, bought several Manikens 

and used them to advertise and instruct students on human anatomy. Mr. 

1

 These pictures show a later version of the Maniken. 
4 

Zahourek and his company sued for copyright infringement (among other 

claims). The district court granted summary judgment to Balanced Body 

University on the copyright-infringement claim, concluding that the 

Maniken was unprotected as a “useful article.” We reverse because the 

Maniken’s classification as a useful article turns on a genuine issue of 

material fact.2

3. A genuine issue of material fact exists on whether the Maniken is 

a useful article. 

Federal law defines a “useful article,” and a genuine issue of material 

fact exists over whether the Maniken fits this definition. 

A. The Standard of Review 

 We engage in de novo review of the grant of summary judgment, 

viewing the evidence in the light most favorable to the nonmoving party. 

Blehm v. Jacobs, 702 F.3d 1193, 1199 (10th Cir. 2012). With this view of 

the evidence, we consider whether Balanced Body University has shown 

the lack of a genuine dispute of material fact and entitlement to judgment 

as a matter of law. Fed. R. Civ. P. 56(a). 

 Within this framework, we consider the copyrightability of the 

Maniken as a mixed question of law and fact. See Enterprise Mgt. Ltd. v. 

Warrick, 717 F.3d 1112, 1117 n.5 (10th Cir. 2013). As a mixed question, 

2

 Balanced Body University cross-appealed on the issue of attorneys’ 

fees. Because Balanced Body University is no longer the prevailing party, 

its cross-appeal is moot. 
5 

copyrightability could include “potential jury questions in the presence of 

materially disputed facts.” Meshwerks, Inc. v. Toyota Motor Sales U.S.A., 

Inc., 528 F.3d 1258, 1262 n.4 (10th Cir. 2008).

B. The District Court’s Ruling 

 The district court issued two orders addressing whether the Maniken 

is a useful article. In the first order, the court ruled that the Maniken is a 

useful article because it has “an intrinsic utilitarian function that is merely 

to portray the appearance of a life-like form.” Joint App’x vol. 4, at 843. 

In the second order, the district court reiterated that the Maniken is a 

useful article, adding that an article is considered useful if it has any 

“intrinsic utilitarian nature.” Id. at 925–26. The court considered the 

Maniken intrinsically utilitarian because it merely portrays its own 

appearance. Id. at 926 n.4. 

C. The Misfit Between the District Court’s Reasoning and the 

Statutory Definition of a “Useful Article” 

 The district court focused on the usefulness of the Maniken. This 

focus appears sensible but doesn’t fit the statutory definition of a useful 

article. A useful article is defined as “having an intrinsic utilitarian 

function that is not merely to portray the appearance of the article or to 

convey information.” 17 U.S.C. § 101. Under this definition, an item is not

a “useful article” if its usefulness derives solely from its appearance. See 

Superior Form Builders v. Dan Chase Taxidermy Supply Co., 74 F.3d 488, 
6 

493 (4th Cir. 1996) (stating that under 17 U.S.C. § 101, “a useful article 

has as its function something more than portraying its own appearance”). If 

an item isn’t a “useful article” under this definition, the item may be 

copyrightable. Pivot Point Int’l, Inc. v. Charlene Prods., Inc., 372 F.3d 

913, 919 (7th Cir. 2004).3

 

Under the statutory definition, many functional items aren’t “useful 

articles.” Consider a toy airplane or nose mask, which may be 

copyrightable despite their usefulness.4

 For example, a toy airplane might 

be useful for child’s play, but it’s not a useful article because the 

utilitarian function consists solely in its appearance. Gay Toys, Inc. v. 

Buddy L Corp., 703 F.2d 970, 973 (6th Cir. 1983). And a nose mask isn’t a 

useful article because the utilitarian function inheres solely in its 

3

 In enacting the exception for useful articles, Congress intended to 

deny copyright protection to “industrial products” like “automobiles, food 

processors, and television sets.” Gay Toys, Inc. v. Buddy L Corp., 703 F.2d 

970, 973 (6th Cir. 1983) (citing H.R. Rep. No. 94-1476, at 55 (1976)). 

These industrial products may be protectible, but only through “the more 

temporary rights provided by the Patent Act.” Chosun Int’l, Inc. v. Chrisha 

Creations, Ltd., 413 F.3d 324, 328 (2d Cir. 2005). 

4

 Even if part of an item constitutes a “useful article,” other parts may 

be copyrightable if they “incorporate[] pictorial, graphic, or sculptural 

features that can be identified separately from, and are capable of 

existing independently of, the utilitarian aspects of the article.” See 17 

U.S.C. § 101. We need not consider whether the Maniken has sculptural 

elements separable from a utilitarian function. 
7 

appearance. Masquerade Novelty, Inc. v. Unique Indus., Inc., 912 F.2d 663, 

671 (3d Cir. 1990). 

Like a toy airplane or nose mask, the Maniken has utility only 

because it portrays the appearance of something (the human body). 

Because the human body is accurately depicted, the Maniken helps students 

learn human anatomy. Without this accurate depiction of the human body, 

the Maniken could lack any utilitarian function. So a material factual issue 

exists on whether the Maniken fits the statutory definition of a useful 

article. See Hart v. Dan Chase Taxidermy Supply Co., 86 F.3d 320, 323 (2d 

Cir. 1996) (concluding that animal mannequins were copyrightable because 

their function was “to portray [their] own appearance);5 Superior Form 

Builders, Inc. v. Dan Chase Taxidermy Supply Co., 74 F.3d 488, 494 (4th 

Cir. 1996) (concluding that animal mannequins were not useful articles 

because “[their] usefulness [was] their portrayal of the appearance of 

animals”). 

D. The Potential Usefulness of Applying Clay to the Maniken 

Despite the statutory definition of a “useful article,” Balanced Body 

University relies on the district court’s finding that the Maniken provides 

5 The Second Circuit noted that it had earlier treated a clothing 

mannequin as a useful article. Hart, 86 F.3d at 323; see Carol Barnhart 

Inc. v. Economy Cover Corp., 773 F.2d 411 (2d. Cir. 1985). In the earlier 

case, however, the parties had stipulated that the mannequin was a useful 

article. Carol Barnhart, 773 F.3d at 414; see Hart, 86 F.3d at 323. 
8 

utilitarian value for learning anatomy. In relying on this finding, Balanced 

Body University argues that the Maniken’s primary purpose is to teach 

anatomy, allowing students to study muscle articulation through the 

application of clay. 

This argument erroneously assumes that the Maniken must be a 

“useful article” because it can serve as an educational tool. But countless 

items may be copyrightable despite their utility as educational tools. For 

example, consider textbooks. They are often useful for teaching. But 

textbooks are not useful articles because their utility lies solely in the 

information conveyed. See Samson Vermont, The Sine Qua Non of 

Copyright Is Uniqueness, Not Originality, 20 Tex. Intell. Prop. L.J. 327, 

353 (2012) (stating that textbooks are copyrightable despite their practical 

utility); see also ATC Distribution Grp., Inc. v. Whatever It Takes 

Transmissions & Parts, Inc., 402 F.3d 700, 707 n.3 (6th Cir. 2004) (“[T]he 

usefulness of a taxonomy, which is intended to convey information, and 

which is neither pictorial, graphic, nor sculptural, does not preclude its 

being eligible for copyright protection under [17 U.S.C.§ 101].”).

So too here. The Maniken might be useful for teaching anatomy, but 

a fact finder could reasonably attribute this usefulness to the information 

that the Maniken conveys about human anatomy. If the Maniken’s 

usefulness lies solely in the information it conveys, the Maniken would not 

be a useful article. 17 U.S.C. § 101. 
9 

 Balanced Body University argues that the Maniken does more than 

convey information: its design allows students to apply clay to learn about 

muscles. But the University did not make this argument in district court 

when seeking summary judgment. Because the University didn’t make this 

argument, the burden never shifted to Mr. Zahourek and his company to 

present evidence that the Maniken’s utility lay solely in its portrayal of a 

human skeleton. See Alpine Bank v. Hubbell, 555 F.3d 1097, 1110 (10th 

Cir. 2009);6 cf. Tavery v. United States, 32 F.3d 1423, 1427 n.5 (10th Cir. 

1994) (refusing to affirm the award of summary judgment on an alternative 

ground because the moving party had not raised the issue in district court, 

failing to put the nonmoving party on notice of a duty to present evidence 

on the issue). 

But let’s assume for the sake of argument that a fact finder could 

reasonably infer that the Maniken had served partly as a prop to showcase 

6

 There we explained: 

 To be sure, there is one situation in which the [plaintiffs] 

would have no burden to show the merits of a nondisclosure 

claim [based on Colorado’s five ways to establish a duty of 

disclosure]. If [the plaintiffs] had raised such a claim in district 

court and the [defendant’s] motion for summary judgment had 

not presented argument and evidence showing that the claim 

lacked merit, summary judgment would have been 

inappropriate. After all, it is not the party opposing summary 

judgment that has the burden of justifying its claim; the movant 

must establish the lack of merit. 

Hubbell, 555 F.3d at 1110. 
10 

the location and movement of human muscles. On summary judgment, a 

fact finder must view the evidence in the light most favorable to the nonmovant (Mr. Zahourek and his company). See Part 3(A), above. A fact 

finder could reasonably infer that the Maniken had facilitated learning 

through the application of clay only because the skeletal frame accurately 

portrayed a human skeleton. Indeed, Balanced Body University repeatedly 

argues that 

 the Maniken is “anatomically accurate” and 

 the accuracy enhances the educational “experience for students 

learning about muscle structure and placement.” 

Appellee’s Resp. Br. at 4, 15. Given these arguments, a fact finder could 

reasonably infer that the Maniken had served as a useful learning tool only 

because of its anatomical accuracy. 

A similar issue arose in Superior Form Builders, Inc. v. Chase 

Taxidermy Supply Co., 74 F.3d 488 (4th Cir. 1996); see p. 7, above. That 

case involved animal mannequins used by the defendant to mount animal 

skins. 74 F.3d at 491. Given this use, the defendant argued that the animal 

mannequins had a utilitarian function of acting as mounts to display animal 

skins. Id. at 493–94. 

The Fourth Circuit rejected this argument, reasoning that the 

mannequins’ utility still consisted of their portrayal of the animals’ 

appearance: 
11 

[T]his argument overlooks that which distinguishes mannequins 

from ordinary plastic foam pellet animal stuffing: A mannequin 

provides the creative form and expression of the ultimate animal 

display, whereas pellets do not. Even though covered with a skin, 

the mannequin is not invisible but conspicuous in the final 

display. The angle of the animal’s head, the juxtaposition of its 

body parts, and the shape of the body parts in the final display 

is little more than the portrayal of the underlying mannequin. 

Indeed, the mannequin can even portray the intensity of flexed 

body parts, or it can reveal the grace of relaxed ones. None of 

these expressive aspects of a mannequin is lost by covering the 

mannequin with a skin. Thus, any utilitarian aspect of the 

mannequin exists “merely to portray the appearance” of the 

animal. 

Id. at 493–94 (quoting 17 U.S.C. § 101); see p. 7, above. 

The Fourth Circuit’s reasoning applies here. Like the animal 

mannequins in Superior Form Builders, Mr. Zahourek’s sculpture of a 

human form retains its utilitarian function even though clay (rather than 

animal skins) is used to cover the exterior. Just as the mannequins retained 

their utility in Superior Form Builders based on their portrayal of animals, 

the Maniken retains its utility based on its portrayal of a human skeleton.7

In Superior Form Builders, the court pointed out that without the 

mannequins’ portrayal of the animals, the skins could have been draped on 

foam pellet stuffing. Superior Form Builders, Inc. v. Chase Taxidermy 

7

 Balanced Body University tries to distinguish Superior Form 

Builders by noting that the animal mannequins retained expressive 

elements even after being covered with skins. Appellee’s Resp. Br. at 16. 

But Balanced Body University does not explain the relevance of this 

observation. The Maniken’s utilitarian value lies in its appearance even if 

that appearance reveals few expressive elements. 
12 

Supply Co., 74 F.3d 488, 494 (4th Cir. 1996). Here too, the clay could 

otherwise have been added to any three-dimensional structure. But the 

Maniken was not just any three-dimensional structure, and a fact finder 

could reasonably find that the spaces to add clay provided utility only 

because of the Maniken’s resemblance to a human skeleton. So even if 

Balanced Body University had pressed its current argument in district 

court, summary judgment would have remained unavailable. 

4. Conclusion 

Viewing the evidence in the light most favorable to Mr. Zahourek 

and his company, a fact finder could reasonably determine that the 

Maniken was not a useful article. So we reverse the award of summary 

judgment on the claim of copyright infringement and remand for further 

proceedings.