Wednesday, January 20, 2016

Is a jigsaw puzzle a useful article?

I am pondering this question as I contemplate writing my massive "why you should do wooden jigsaw puzzles" post, because of the exception for pictures of useful articles that incorporate expressive works.  If I want to show some representative pictures, some of my best puzzles use images still within their terms of protection, and while I have full confidence in fair use, it's also worth considering whether the copyright owner's rights would be implicated even without fair use.  (Bonus round question: does a disassembled jigsaw puzzle, with all the pieces turned up, have "fragmented literal similarity" to the full image?)  I think the answer ought to be that a puzzle is a useful article, because assembling a puzzle is not merely a representation of the thing depicted (the way a toy airplane might be).  Indeed, the puzzle has utility, though perhaps less saleability, even without the image--there are image-less puzzles for people like me who like a particular kind of challenge.

Other questions of interest: is the jigsaw pattern itself a copyrightable work?  When hand-cut, there's a strong argument for that, and depending how laser cutting is done, perhaps also for laser-cut patterns.  What about when the pattern is created by a computer program?  This last question, at least, has generated a fair amount of attention in the legal literature.

I would love to hear others' thoughts.


Anonymous said...

If after completing a puzzle, one affixes it to a board, mounts it in a frame, and hangs it on a wall, is it now copyright infringement?

RT said...

Not if the puzzle was lawfully made! The issue is pictures (reproductions) of the puzzle.

Bruce Boyden said...

It's a difficult and fascinating question I think. I purposefully left puzzles out of my games paper because they're even harder. I think the trickiest bit is figuring out at what point conveying a challenge becomes conveying expression. (Sticking with blank puzzles for a moment -- the finished image is clearly copyrightable and also separable, usually physically.) You could say that the pieces are cut in a particular way to achieve a function rather than expression, the function being to be challenging but not too challenging to put back together. But you could say the same maybe about a Liszt sonata -- the notes on a score are instructions for how to produce certain sounds, so you could call them functional (as well as challenging to do correctly) but the end result is something that clearly transmits expression from Liszt to an audience.

I think the distinction with at least blank puzzles is going to be that there's no conveyance of some message or meaning from author to audience, beyond "yay I did it!" I think the mental states of "experiencing the work" arise primarily from the user's engagement with the puzzle, and are not those sent by the author. (That's not going to be 100% either way though -- I can envision a puzzle designer, like the authors of Zork, throwing something in that they know will be difficult because it misleads users in a particular way, i.e. causing a particular (wrong) view of the solution to the puzzle to arise. And conversely, for most audiences and most works some portion of the way the work is perceived comes from idiosyncratic audience mental reaction to the work.) So I'm tempted to say that the puzzle cut is not copyrightable, even if "creative" in some way, but I suspect a post-Kapes/CCC court is not going to be interested in drawing lines between varieties of creativity. They will just look at choices and skill and judgement calls and call it a day.

RT said...

Thanks--I take it you're mostly addressing the "cut" question--I have no doubt about separability/copyrightability of a non-public domain image. I am specifically interested in the distinction between useful articles and non-useful articles in PGS works, because of the exception in 113(c) for reproducing images of the useful articles in the course of reviewing them. I can say that the puzzle designers of the puzzles I'm talking about are definitely attempting to engage and delight the puzzler, sometimes including misleading or misdirection.

Bruce Boyden said...

Right, I'm talking about just the cut, but if the cut is a useful article, then cut + image is too, right? I think the useful/non-useful distinction for the cut is going to track the procedure/non-procedure, system/non-system etc. distinction in 102(b) -- a musical score is a set of instructions for a procedure but obviously it's not barred under 102(b), and the question is whether the puzzle cut is like that, or like the rules of Monopoly. I think it's more like game rules, because the cut establishes the conditions for entertainment, but doesn't directly convey any entertaining or informative message itself. But YMMV on that argument.

"I can say that the puzzle designers of the puzzles I'm talking about are definitely attempting to engage and delight the puzzler, sometimes including misleading or misdirection."

That does not surprise me and means that for any human-designed puzzle there's not going to be clear answer I think even under my view (let alone under the choices and judgement = originality view). The puzzle designer is clearly trying to transmit certain ideas or experiences in that case, even a particular meaning, at least in those aspects of the puzzle that are designed to mislead in some way. I would still think that overall most of the puzzle-solving experience comes from the user, but it's a matter of degree.

113(c) is great but would you need it? For a review, wouldn't there be a pretty good fair use argument? Obviously statutory exceptions are better but here it's not going to be clear it applies, or at least not clear that a court would agree.

RT said...

Well, I don't think the cut is a useful article, or the image--I think the puzzle is. Of course there'd be a great fair use argument for the review, but I don't want to be squabbling about image size or how much of the picture are needed. 113(c) makes all of that irrelevant. OTOH, our discussion does point to the fact that other exceptions are not necessarily any more well-defined than fair use.

I would say that the cut does communicate something at the time you figure out the fit, at least with respect to the whimsies or particularly clever cuts.