923.1 Copyrightable Authorship in Models
Models may be replicas or depictions of either artistic or utilitarian objects. Models themselves, however, are not considered useful articles for purposes of registration, because their only utilitarian function is to convey information or merely portray the appearance of the object depicted in the model. 17 U.S.C. § 101 (definition of “useful article”). Similarly, children’s toys – ” such as model airplanes – ” are not themselves typically considered useful articles, because they merely portray the item that the toy represents. See Gay Toys, Inc. v. Buddy L. Corp., 703 F.2d 970, 973 (6th Cir. 1983). Because they are not useful articles, models and toys are not subject to the separability test described in Section 924.3.
A replica of an existing useful article or a model of an existing architectural work may be protectable if it includes a sufficient amount of original authorship and if it contains some original differences from the object depicted. Star Athletica, 137 S. Ct. at 1010 (acknowledging that “a replica [of a useful article] could itself be copyrightable”). Specifically, the copyright law protects models if there are distinguishable, creative differences in shape, line, perspective, or details between the model and the depicted object. The amount of effort, time, monetary expense, technical skill, or craft that the author contributed to the model is irrelevant to this determination. The complexity of the depicted object is also irrelevant. A model of a relatively simple object may be copyrightable if the author exercised sufficient creativity in rendering that object as a model. However, the Office will not register a model simply because it depicts an object that is extremely complex. See Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d 1258, 1265 (10th Cir. 2008) (Gorsuch, J.) (declining to extend copyright protection to digital wire frame models that depicted “nothing more than unadorned Toyota vehicles – ” the car as car”).
The copyright law does not protect models that are exact replicas of the source work, regardless of how much skill or labor was involved in creating the work. Merely reducing or enlarging the size of the source work or producing the source work in a new medium is not sufficient to warrant copyright protection. Likewise, the copyright law does not protect models if the differences between the model and the source work were dictated by manufacturing or material requirements. See id. at 1270 (“If the basic design reflected in a work of art does not owe its origin to the putative copyright holder, then that person must add something original to that design, and then only the original addition may be copyrighted.”); see also ATC Distribution Group, Inc. v. Whatever It Takes Transmissions & Parts, Inc., 402 F.3d 700, 712 (6th Cir. 2005) (finding “hand-drawn sketches of transmission parts, copied from photographs” not copyrightable because “the illustrations were intended to be as accurate as possible in reproducing parts shown in the photographs . . . a form of slavish copying that is the antithesis of originality”).
Although a replica of a useful article “could itself be copyrightable,” the copyright in that model does not “give rise to any rights in the useful article that inspired it.” Star Athletica, 137 S. Ct. at 1010. In other words, one cannot “claim a copyright in a useful article merely by creating a replica of that article in some other medium,” such as “a cardboard model of a car.” Id. And the copyright in a model that portrays a useful article does not extend to the manufacture, distribution, or display of the useful article itself.
See 17 U.S.C. § 113 (B); H.R. REP. NO. 94-1476, at 105 (1976), reprinted in 1976 U.S.C.C.A.N at 5720.