Gregory Poe v. Missing Persons, Dale Bozzio, Steven Brooks, Capitol Records, Inc., Capitol Industries-Emi Inc.

Gregory Poe appeals from the order of the district court granting the appellees’ motion for a summary judgment on Poe’s claim of copyright infringement and violation of section 43(a) of the Lanham Act. Poe also seeks reversal of the dismissal of all pendent state claims.

I.

We must decide whether the evidence submitted by the parties on the motion for a summary judgment raised a genuine issue of material fact. We have concluded that the evidence presented to the district court reveals that there is a disputed issue of material fact as to whether “Aquatint No. 5” is a utilitarian article of clothing or a work of art.

II.

Poe filed a claim seeking damages for the copying of an article he created which he described “as an artwork in the medium of soft sculpture entitled ‘Aquatint No. 5’.”

Appellees moved for a summary judgment claiming that “the critical facts in this case are not in dispute. There is no dispute that plaintiff designed the swimsuit." (emphasis added).

Appellees presented no evidence in support of their contention that Poe’s article was a “swimsuit” or an article of clothing. The only evidence offered by the appellees in support of the motion for a summary…