PUBLISH
UNITED STATES CO URT OF APPEALS
FOR THE TENTH CIRCUIT

____________________ ________________ ZAHOUREK SYSTEMS, INC.; JON ZAHOUREK Plain tiffs Counterclaim Defend ants - Appellants,

v. BALANCED BODY UNIVERSITY, LLC, Defendan t Counterclaimant - Appellee.

______________________ ZAHOUREK SYSTEMS, INC.; JON ZAHOUREK Plain tiffs Counterclaim Defendants - Appellee,

v. BALANCED BODY UNIVERSITY, LLC, Defendan t 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 Court2 David Nimmer, Irell & Mane lla LLP, Los Angeles, Ca lifornia (Dennis J. Courtney, Irell & Manella LLP, Los Ange les, California; Luke Santangelo and Nicole Ressue, Santa ngelo Law Offices, P.C., Fort Collins, Colorado, with him on the briefs ), on behalf of the Plaintiffs Counterclaim Defendants. Carolyn V. Juarez, Neuge boren O’Dowd P.C., Boul der, Colorado; John R. Posthumus, Polsinelli, De nver, 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 artic le” under the copyright la ws. If the Maniken is a useful article, it wouldn ’t ordinarily be protec tible under th e 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 aw ay before we issued th is 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, th e Maniken port rays the human body; but the Maniken dwarfs a standard classroom skeleton a nd facilitates education by allowing students to appl y clay where human tissues would appear. On the left of each picture is the Maniken, a nd 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, Balan ced Body Univ ersity, bought sev eral Manikens and used them to advertise and instru ct students on hum an anatomy. Mr.

1 These pictures show a la ter version of the Maniken.4 Zahourek and his company sued for copyri ght infringement (among other claims). The district court granted summary judgment to Balanced Body University on the copyright-infringe ment claim, concluding that the Maniken was unprotected as a “usefu l article.” We re verse because the Maniken’s classification as a useful article turns on a genuin e issue of material fact. 2
3. A genuine issue of mate rial fact exists on whether the Maniken is a useful article. Federal law defines a “use ful article,” and a genu ine issue of material fact exists over whether the Maniken fits th is definition. A. The Standard of Review We engage in de novo review of the grant of su mmary judgment, viewing the evidence in the light most favorabl e 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 genu ine dispute of material fact and entitlement to judgment as a matter of law. Fe d. 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 Ci r. 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 “potentia l 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 th e first order, the court ruled that the Maniken is a useful article because it ha s “an intrinsic utilitarian function that is merely to portray the appearance of a life-like form.” Join t App’x vol. 4, at 843. In the second order, th e district court reiterate d that the Maniken is a useful article, adding that an article is considered useful if it has any “intrinsic utilita rian nature.” Id. at 925–26. The court considered the Maniken intrinsica lly utilitarian because it merely portrays its own
appearance. Id. at 926 n.4. C. The Misfit Between the Distri ct 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 portra y the appearance of the article or to convey information. ” 17 U.S.C. § 101. Under th is definition, an item is not a “useful article” if its usefulness derives solely from its appearance. See Superior Form Bu ilders v. Dan Chase Taxidermy Supply Co. , 74 F.3d 488,6 493 (4th Cir. 1996) (stati ng that under 17 U.S.C. § 101, “a useful article has as its function something more th an portraying its ow n appearance”). If an item isn’t a “useful article” under this defini tion, 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 to y 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 exceptio n for useful articles, Congress intended to deny copyright prot ection 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 pr oducts may be protectible, bu t 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 constitu tes a “useful article,” other parts may be copyrightabl e if they “ 

### incorporate[] pictorial, graphic, or sculptural features that can be identified separately fro m, and are capable of existing independe ntly of, the utilita rian 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 ma sk, the Maniken has utility only because it portrays th e appearance of someth ing (the human body). Because the human body is accurately depicted, th e Maniken helps students learn human anatomy. Wit hout this accurate depi ction of the human body, the Maniken could lack any utilitarian function. So a mate rial factual issue exists on whether the Ma niken fits the statutory definition of a useful article. See Hart v. Dan Chas e 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 Ch ase Taxidermy Supply Co. , 74 F.3d 488, 494 (4th Cir. 1996) (concluding that animal mannequins we re not useful articles because “[their] usefulness [was] thei r portrayal of the appearance of animals”). D. The Potential Usefulness of Applying Clay to the Maniken Despite the statutory defi nition of a “useful ar ticle,” Balanced Body University relies on the district cour t’s finding that the Maniken provides

5 The Second Circuit noted that it had earlie r 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 stipulat ed that the mannequ in 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 ar gues that the Maniken’s primary purpose is to teach anatomy, allowing studen ts to study muscle arti culation th rough the application of clay. This argument erroneously assume s that the Maniken must be a “useful article” because it can serve as an educatio nal tool. But countless items may be copyrig htable despite their utility as educational tools. For example, consider text books. They are often us eful for teaching. But textbooks are not useful ar ticles because their util ity 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 copyri ghtable despite their practical utility); see also ATC Distribu tion Grp., Inc. v. Whatever It Takes
Transmissions & Parts, Inc. , 402 F.3d 700, 707 n.3 (6 th Cir. 2004) (“[T]he usefulness of a taxonomy, which is intended to c onvey information, and which is neither pictorial, graphic, nor sculptural, does not preclude its being eligible for copyright prot ection under [17 U.S.C.§ 101].”). So too here. The Maniken might be useful for teachi ng anatomy, but a fact finder could reasonably attri bute this usefulness to the information that the Maniken conv eys 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 Univer sity argues that the Maniken does more than convey information: its de sign allows students to apply clay to learn about muscles. But the University did not ma ke this argument in district court when seeking summary judgm ent. Because the Univers ity didn’t make this argument, the bu rden never shifted to Mr. Zahourek and his company to present evidence that the Maniken’s util ity 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 affi rm the award of summary j udgment on an alternative ground because the mo ving party had not raised th e issue in dist rict court, failing to put the nonmoving party on no tice of a duty to present evidence on the issue). But let’s assume for th e sake of argum ent 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 Colora do’s five ways to establish a duty of disclosure]. If [the plai ntiffs] had raised such a claim in district court and the [defendant’s] motion for summary judgment had not presented argumen t and evidence show ing that the claim lacked merit, summary j udgment would have been inappropriate. After all, it is not the party opposing summary judgment that has the burden of ju stifying its clai m; the movant must establish the lack of merit. Hubbell , 555 F.3d at 1110.10 the location and movement of human muscles. On summ ary judgment, a fact finder must view th e evidence in th e light most favo rable to the nonmovant (Mr. Zahourek and his company). See Part 3(A), above. A fact finder could reasonably infer that the Maniken had facilitate d learning through the application of clay only because the sk eletal frame accurately portrayed a huma n skeleton. Indeed, Balanced Body University repeatedly argues that

 the Maniken is “anatomically accurate” and

 the accuracy enhances the educa tional “experience for students learning about muscle st ructure and placement.” Appellee’s Resp. Br. at 4, 15. Given these arguments, a f act finder could reasonably infer that the Maniken had se rved as a useful l earning tool only because of its anat omical accuracy. A similar issue arose in Superior Form Builde rs, Inc. v. Chase Taxidermy Supply Co. , 74 F.3d 488 (4th Cir. 1996); see p. 7, above. That case involved animal manne quins used by the defendant to mount animal skins. 74 F.3d at 491. Given this use, the de fendant argued that the animal mannequins had a utilitarian function of acting as m ounts to display animal skins. Id. at 493–94. The Fourth Circuit re jected this argument, reasoning that the mannequins’ utility still co nsisted of their portra yal of the animals’
appearance:11 [T]his argument overl ooks that which distinguishes mannequins from ordinary plastic foam pellet animal stuffing: A mannequin provides the creative fo rm and expression of the ultimate animal display, whereas pellets do not. Even though covere d 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 sh ape of the body parts in the final display is little more than th e portrayal of the und erlying mannequin. Indeed, the mannequin can even po rtray 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 utilitari an aspect of the mannequin exists “m erely to portray th e 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 f unction even though cl ay (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 u tility based on its portra yal of a human skeleton. 7
In Superior Form Builders , the court pointed ou t that without the mannequins’ portrayal of the animals, the skins could have been draped on foam pellet stuffing. Superior Form Builders, In c. v. Chase Taxidermy

7 Balanced Body University tries to distinguish Superior Form Builders by noting that the animal ma nnequins retained expressive elements even after bein g covered with skins. Appellee’s Resp. Br. at 16. But Balanced Body Univer sity does not explain the relevance of this observation. The Maniken’s utilitarian value lies in its appearance even if that appearance reveals fe w 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-dimens ional structure, and a fact finder could reasonably find th at 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 judgm ent would have rema ined unavailable. 4. Conclusion Viewing the evidence in the light most favorable to Mr. Zahourek and his company, a fact finder co uld reasonably de termine that the Maniken was not a useful article. So we reverse the award of summary judgment on the claim of copyright infringeme nt and remand for further proceedings.