F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           JUN 1 1999

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                              Clerk



 VICKERY DESIGN, INC., a New
 Mexico corporation,

          Plaintiff-Appellant,
                                                       No. 98-2217
 v.                                            (D.C. No. CIV-96-25-JP/DJS)
                                                      (New Mexico)
 ASPEN BAY COMPANY, a foreign
 corporation,

          Defendant-Appellee.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, ANDERSON and HENRY, Circuit Judges.



      Vickery Design, having registered its miniature corn candle, the Corndle, in

compliance with copyright laws under 17 U.S.C. § 1, et seq., filed an action to

enjoin Aspen Bay from manufacturing and selling corn-shaped candles similar to

the Corndle; to impound copies of the infringing candles and masters; to recall all


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
copies in commerce; and to recover damages. The district court dismissed the

action and Vickery Design appeals. We affirm.

      Vickery Design argues that the district court erred (1) in holding that a

candle in the shape of a miniature ear of corn is not subject to copyright

protection, (2) erred in not applying an “ordinary observer” test to determine

substantial similarity, and (3) erred in holding that Aspen Bay’s corn candle was

not substantially similar to the Corndle.

      We review the district court's dismissal for an abuse of discretion. We

accept the district court's factual findings unless they are clearly erroneous and

review application of legal principles de novo. See Harolds Stores, Inc. v.

Dillards Dep’t Store, Inc., 

, 1555 (10th Cir. 1996); Country Kids ‘N

City Slicks, Inc. v. Sheen, 

, 1283 (10th Cir. 1996).

      The copyright law does not allow a monopoly on the idea of an object

occurring in nature. See 17 U.S.C. § 102(a) (providing that copyright protection

extends only “to original works of authorship fixed in any tangible medium of

expression.”); see also Herbert v. Rosenthal Jewelry Corp. v. Kalpakian, 

, 742 (9th Cir. 1971) (idea of a pin in the shape of a bee cannot be protected

by copyright). While the idea cannot be monopolized, the artistic expression of

that idea is protected by copyright laws. Thus, a candle in the shape of a

miniature ear of corn created to reflect the way it occurs in nature cannot be


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claimed as an original work to be protected by copyright laws although the unique

expressions of the actual corn candle can be protected. See Country Kids ‘N City

Slicks, 

(distinguishing the idea of a wooden form of

traditional paper dolls from a copied doll); Concrete Machinery Co., v. Classic

Lawn Ornaments, Inc., 

, 607 (1st Cir. 1988) (distinguishing the

concept of a concrete life-sized deer from the facial expression, pose and posture

of a particular created deer.)

      In the instant case, the district court found that although the Corndle was

substantially similar to Aspen Bay’s miniature corn candles in shape, taper, color

and weight, those features pre-existed in nature and occurred from a commonality

in the subject matter. Both candle designs were produced from molds of real ears

of corn. The district court further found that the actual artistic expression of the

ears were not the same. For example, Corndles have straight rows of kernels

while Aspen Bay’s rows have a twisted shape. Having reviewed the record and

the proffered exhibits, we decline to disturb these factual findings.

      Applying these facts to the established law of this circuit that a corn candle

design is protectable but only to the extent “of the creative and artistic

modifications of individual kernels in the wax sculptures, and not as to the overall

size and configuration of the miniature corn candle,” we hold that Vickery

Designs has failed to prove a copyright violation. After reviewing the appellate


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briefs and the record, we AFFIRM for substantially the reasons set forth in the

district court’s order.

                                      ENTERED FOR THE COURT


                                      Stephanie K. Seymour
                                      Chief Judge




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