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Look at this picture.

It was in an artist's sketch book when she returned from Canada. Customs and Border Protection questioned her for an hour to determine whether she was engaged in copyright infringement. Based on that picture!

I understand that what CBP was really worried about is corporate espionage. It's possible that the sketch was of some new and unreleased GM vehicle that she surreptitiously sketched at a proving ground in the wilds of Canada. But it's not.

The artist had done the sketch as part of a project involving a crochet cozy to cover an entire SUV to illustrate something about the evils of foreign oil. Whatever. That's why we have artists.

But is it credible that copyright infringement might have been involved? A copyright protects an original work of authorship stored in a tangible medium of expression, like a sketch on paper. It is infringement to copy the original work of someone else. Copying is defined as producing a work that is so similar that the casual observer would be willing to disregard the differences. Generally, utilitarian items like car bodies and Balinese dancer lamps are only subject to copyright to the limited extent that the artistic element is separable from the useful. So the giant eagle on my belt buckle might be subject to copyright, but the notion of a belt buckle is not.

So let's say this sketch was actually of a real SUV. Let's also assume that the SUV has some artistically muscular lines or swoopy curves that might be subject to copyright. Does this sketch really convey anything that is not generic about the SUV? Maybe if I was schooled in auto design, I'd see it. Maybe, but based on what I see in the auto press, this kind of industrial spying is generally done with telephoto lenses, not pen and ink.

On the other hand, it is possible that the CBP inspector was not concerned about infringing the design of a functioning 3-dimensional SUV body. Maybe she had previously seen a similar sketch by another artist. Is this substantially similar to a Picasso SUV sketch?

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