UNPUBLISHED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.

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Affirmed by unpublished per curiam opinion.

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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.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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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 man-
ufacturing 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 injunc-
tion. 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 intro-
duced its line of iron tables in the fall of 1993, and Collezione intro-
duced 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.

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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 dis-
trict 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 likeli-
hood of success on the merits of the underlying dispute; (2) the possi-
bility 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 irrep-
          arable 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

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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 pre-
liminary injunction standard, by resting its decision on a clearly erro-
neous 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, refer-
ences to Blackwelder, or for that matter any case containing the cor-
rect 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 dis-
trict 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). How-
ever, the Copyright Act excludes from copyright protection any "use-
ful 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 indepen-
dently of, the utilitarian aspects of the article." 17 U.S.C.A. § 101.

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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 copy-
rightable even when it was used as the base of a lamp. Id. at 205 (not-
ing 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 sepa-
rated 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,
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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 copy-
rightable 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 likeli-
hood 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 con-
tains 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 use-
ful 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
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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 furni-
ture 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 intro-
duced 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
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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)).

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