UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MAGNUSSEN FURNITURE,

INCORPORATED; PRESIDENTIAL

FURNITURE (USA), INCORPORATED,

Plaintiffs-Appellants,

No. 96-1917

v.

COLLEZIONE EUROPA USA,

INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of North Carolina, at Greensboro.

Frank W. Bullock, Jr., Chief District Judge.

(CA-96-340-2)

Argued: April 9, 1997

Decided: June 19, 1997

Before RUSSELL, WILKINS, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Peter Whitlock Gowdey, CUSHMAN, DARBY &

CUSHMAN, L.L.P., Washington, D.C., for Appellants. Peter Joseph

Juran, BLANCO, TACKABERY, COMBS & MATAMOROS, P.A.,

Winston-Salem, North Carolina, for Appellee. ON BRIEF: Richard

L. Kirkpatrick, CUSHMAN, DARBY & CUSHMAN, L.L.P., Wash-
ington, D.C.; Mark R. Smith, James A. Medford, SMITH, HELMS,

MULLISS & MOORE, L.L.P., Greensboro, North Carolina, for

Appellants.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Magnussen Furniture, Inc. and Presidential Furniture (USA), Inc.

(collectively "Magnussen"), appeal from the refusal of the district

court to enjoin Collezione Europa USA, Inc. (Collezione), from manufacturing and marketing a line of iron tables. Magnussen sought

injunctive relief pursuant to Rule 65(a) of the Federal Rules of Civil

Procedure on the basis of its copyright infringement claim. Finding

that Magnussen was unlikely to succeed on the merits of its claim, the

district court denied Magnussen's motion for a preliminary injunction. We affirm.

I.

Magnussen and Collezione are competitors in the"value" furniture

industry. Both companies sell a line of iron tables that share similar

design features, such as curved legs and support frames, "web" and

"ring" shapes around the aprons, and glass tops. Magnussen introduced its line of iron tables in the fall of 1993, and Collezione introduced its line the following year. At neither time did Magnussen

obtain either a copyright or a design patent on the table design.

By 1995, Magnussen realized it was losing business to Collezione.

In early 1996, Magnussen demanded that Collezione cease production

of its line of iron tables. Magnussen claimed intellectual property

rights, including a copyright, in the design of the table. Noting that

no known copyright existed, Collezione refused to cease production.

 2
Undeterred, Magnussen filed a copyright registration application with

the United States Copyright Office, and was issued a Certificate of

Registration by the Registrar of Copyrights. Shortly thereafter,

Magnussen brought a copyright infringement suit against Collezione.

Based on its copyright infringement claim, Magnussen moved for

a preliminary injunction. In considering Magnussen's motion, the district court balanced the probable harm to Magnussen if relief was

denied against the probable harm to Collezione if relief was granted.

After finding the probable harm to each party to be equal, the district

court considered whether Magnussen was likely to succeed on the

merits of its copyright infringement claim. The district court found

that Magnussen was unlikely to succeed on the merits of its copyright

infringement claim and therefore denied Magnussen's motion for a

preliminary injunction. This appeal followed.

II.

In deciding whether to grant or deny a preliminary injunction, a

district court should consider four factors: (1) the plaintiff's likelihood of success on the merits of the underlying dispute; (2) the possibility of irreparable harm to the plaintiff if relief is denied; (3) the

harm to the defendant if an injunction is issued; and (4) the public

interest. See Blackwelder Furniture v. Seilig Mfg. Co., 550 F.2d 189,

196 (4th Cir. 1977). Nonetheless,

[t]he two more important factors are those of probable irreparable injury to [the] plaintiff without a decree and of likely

harm to the defendant with a decree. If that balance is struck

in favor of [the] plaintiff, it is enough that grave or serious

questions are presented; and [the] plaintiff need not show a

likelihood of success.

Id. However, if that balance is not struck in favor of the plaintiff, the

importance of showing a likelihood of success on the merits

increases. See id. at 195. In fact, such a showing can be decisive. See

id.

We review the district court's denial of Magnussen's motion for a

preliminary injunction for abuse of discretion. See Quince Orchard

 3
Valley Citizens Ass'n, Inc. v. Hodel, 872 F.2d 75, 78 (4th Cir. 1989).

A district court abuses its discretion "`by applying an incorrect preliminary injunction standard, by resting its decision on a clearly erroneous finding of a material fact, or by misapprehending the law with

respect to [the] underlying issues in litigation.'" Id. (quoting Goldie's

Bookstore, Inc. v. Superior Court of California, 739 F.2d 466, 470

(9th Cir. 1984)).

On appeal, Magnussen does not contend that the district court

applied an incorrect preliminary injunction standard. In fact, references to Blackwelder, or for that matter any case containing the correct preliminary injunction standard, are conspicuously absent from

Magnussen's brief. Likewise, Magnussen does not contend that the

district court rested its decision on a clearly erroneous finding of

material fact. For example, Magnussen does not challenge the district

court's findings regarding the probable harm to each party if an

injunction is granted vel non. Rather, Magnussen argues that the district court misapprehended the law with respect to the copyrightability

of the table design. Specifically, Magnussen argues that the district

court erred in finding that Magnussen was unlikely to succeed on the

merits of its copyright infringement claim.

In order to prevail on its copyright infringement claim, Magnussen

must prove: (1) ownership of a valid copyright; and (2) copying by

the defendant. See Keeler Brass Co. v. Continental Brass Co., 862

F.2d 1063, 1065 (4th Cir. 1988). Because Collezione has admitted

copying, Magnussen's likelihood of success turns on the validity of

its copyright.

The Copyright Act provides copyright protection for"original

works of authorship fixed in any tangible medium of expression,"

including works of art. 17 U.S.C.A. § 102(a)(5) (West 1996). However, the Copyright Act excludes from copyright protection any "useful article," which the Act defines as any article "having an intrinsic

utilitarian function that is not merely to portray the appearance of the

article or to convey information." 17 U.S.C.A.§ 101 (West 1996). A

work of art, however, does not lose its copyrightability even if it has

some utilitarian aspects so long as the art's "sculptural features . . .

can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." 17 U.S.C.A. § 101.

 4
In Mazer v. Stein, 347 U.S. 201 (1954), the Supreme Court held

that a statue of a dancer, an original work of art, continued to be copyrightable even when it was used as the base of a lamp. Id. at 205 (noting that the statue was capable of existing independently of the

utilitarian aspects of the lamp). Magnussen argues that, like the statue

in Mazer, its table design is copyrightable as a matter of law because

it is an original work of art, with sculptural features that can be separated from the utilitarian aspects of the table. 1 However, in Superior

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

(4th Cir.), cert. denied, 117 S. Ct. 53 (1996), we noted, albeit in dicta,

that most pieces of furniture are "useful articles" rather than "works

of art." As we explained in Superior Form, the

design of a unique, aesthetically pleasing chair cannot be

separated from the chair's utilitarian function and, therefore,

is not subject to copyright protection. But the design of a

statue portraying a dancer, created merely for its expressive

form, continues to be copyrightable even when it has been

included as the base of a lamp which is utilitarian.

Id. at 493 (citing Mazer, 347 U.S. at 205). Like the chair (and unlike

the statue) described in Superior Form, it appears that Magnussen's

line of tables was not created merely for its expressive form.2 Rather,

_________________________________________________________________

1 To support its argument that the table is a work of art, Magnussen

gives the following description of the table:

The design features suggest concepts such as flowers, fountains

and waves. With these features, the overall "look" of the tables

draws the eye from the waving serpentine curls and undulating

swirls below, upwards to the simpler geometric circle and bow

tie-like elements angled around the apron frame. Floating in the

center are eye-catching petal formations which support brass

balls. The transparent glass top gives the overall effect that there

is no table at all, or that the object is a work of art which is more

than a mere table.

(Appellants' Br. at 10-11.)

2 Of course, if Magnussen can demonstrate that its design was a copyrightable work of art created merely for its expressive form, the dictum

in Superior Form strongly suggests that the design would continue to be

copyrightable even if someone placed a glass top on it and used it as a

table.

 5
Magnussen's ultimate purpose, as the district court explicitly found,

"was to design a table." (J.A. at 185.)3

Moreover, like the chair described in Superior Form, the sculptural

features of the table do not appear to be conceptually separable from

the table's utilitarian function. As one commentator has noted,

"[c]onceptual separability exists where there is any substantial likelihood that even if the article had no utilitarian use it would still be

marketable to some significant segment of the community simply

because of its aesthetic qualities." Nimmer on Copyright, § 2.08(B) at

2-101. Although that was true of the statue in Mazer, the record contains no evidence that anyone, let alone some significant segment of

the community, would purchase the frame of one of Magnussen's

tables solely for its aesthetic qualities.4

Based on the record at this preliminary stage of the litigation, it

would appear that Magnussen's iron tables are noncopyrightable useful articles, like the chair described in Superior Form, rather than

copyrightable works of art, like the statue at issue in Mazer.5 Without

a valid copyright, Magnussen will not prevail on its copyright

infringement claim. Accordingly, the district court did not abuse its

discretion in denying Magnussen's motion for a preliminary injunction.6

_________________________________________________________________

3 The district court also found"that an objective observer is not likely

to see it as anything but a table; a nice-looking, well-designed table, and

one they might want to have, but nevertheless a table." (J.A. at 184.)

4 As Collezione notes, "[t]he tables are not sold through art galleries as

artistic creations, but are marketed through the normal channels of furniture distribution as functional items." (Appellee's Br. at 26.)

5 Even if it were clear that Magnussen's tables were works of art, it is

far from clear that the table's design is original. See 17 U.S.C.A.

§ 102(a)(5) (West 1996) (Copyright Act protects original works of art).

There is evidence in the record suggesting that Magnussen copied the

design elements from a line of tables sold by Bassett.

6 Moreover, preliminary injunctions should be granted only in cases

which "clearly demand" such interim relief. See Direx Israel, Ltd. v.

Breakthrough Medical Corp., 952 F.2d 802, 811 (4th Cir. 1991). Here,

there is little, if any, evidence suggesting that Magnussen needs interim

relief. Magnussen knew about Collezione's table line when it was introduced in 1994 and did nothing. In fact, Magnussen did not seek copy-

 6
III.

For the foregoing reasons, we affirm the decision of the district

court denying Magnussen's motion for a preliminary injunction.

AFFIRMED

_________________________________________________________________

right protection for its own line of tables for an additional 16 months.

Frankly, Magnussen's purported need for immediate relief is belied by

its own delay in bringing this action. See Quince Orchard Valley Citizens

Ass'n, Inc. v. Hodel, 872 F.2d 75, 80 (4th Cir. 1989) (noting that when

"an application for [a] preliminary injunction is based upon an urgent

need for the protection of [a] Plaintiff's rights, a long delay in seeking

relief indicates that speedy action is not required" (quotations omitted)).

 7