Copyright Compendium

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924.1 What Is a Useful Article?

 

924.1 What Is a Useful Article?

 

The Copyright Act defines a useful article as “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” 17 U.S.C. § 101.

 

Common examples of useful articles include:

 

• Machinery, such as generators, lathes, and cement mixers.

 

• Tools and implements, such as hammers, shovels, and saws.

 

• Instruments, such as hypodermic needles, scalpels, calipers, and hair clippers.

 

• Measuring and computing devices, such as rulers, calculators, and thermometers.

 

• Vehicles, such as automobiles, airplanes, and boats.

 

• Household appliances, such as refrigerators, stoves, toasters, food processors, vacuum cleaners, washing machines, air conditioners, clocks, and television sets.

 

• Household fixtures, such as bathtubs and sinks.

 

• Furniture, carpets, and curtains.

 

• Lamps and lighting fixtures.

 

• Tableware, glassware, and bowls.

 

• Kitchen utensils, such as pots and pans.

 

• Bottles, pitchers, and other containers.

 

• Textile fabrics.

 

• Articles of clothing.

 

• Footwear.

 

• Measuring tape.

 

• Eye charts and vision tests.

 

• Shooting targets.

 

• Instrument panels that operate a thermostat or other electrical or mechanical device.

 

• Stencils, templates, and pattern pieces.

 

The statute also provides that “[a]n article that is normally part of a useful article is considered a ‘useful article.'” Id. For example, the bezel on a wristwatch or a knob on a stove are useful articles, because they are inherently useful and they are intended to be used as part of a larger useful article.

 

By definition, a useful article must have “an intrinsic utilitarian function.” Id. An article’s intrinsic utilitarian function is an indispensable characteristic of the article itself. This useful function is objectively observable or perceivable from the appearance of the item and is an inherent part of its very nature. For instance, chairs are inherently useful because they provide a place to sit, lamps are inherently useful because they provide illumination, and the “shape, cut, and dimensions” of an article of clothing is inherently useful because it covers the body. Star Athletica, 137 S. Ct. at 1015-16.

 

Not all items that may be described as “useful” are “useful articles” under the Copyright Act:

 

• An item that merely conveys information is not considered a useful article, even if that information is inherently useful. See 17 U.S.C. § 101 (definition of “useful article”). This includes maps, charts, graphs, x-rays, and works of a similar nature.

 

• An item is not considered a useful article if it merely portrays the appearance of a useful article. See id. This includes models, technical drawings, and other works that depict a useful article in two or three dimensions, such as Ren√ɬ© Magritte’s Ceci n’est pas une pipe.

 

• A pictorial, graphic, or sculptural work that does not have an intrinsic utilitarian purpose is not considered a useful article, even if it could potentially be used in a functional manner. For example, a sculpture does not become a useful article simply because it could potentially be used as a doorstop or a coat rack.

 

• Literary works, motion pictures, audiovisual works, architectural works, musical works, dramatic works, pantomimes, and choreographic works are not considered useful articles for purposes of registration, no matter how useful or functional they may be.

 

In determining whether an article does – ” or does not – ” have an intrinsic utilitarian function, the U.S. Copyright Office focuses solely on the article itself and applies purely objective criteria. The Office will consider the inherent, undeniable qualities or characteristics of the article, but will not consider the subjective intent or subjective reaction of any person in relation to that article. See Brandir International, Inc. v. Cascade Pacific Lumber Co., 834 F.2d 1142, 1145 (2d Cir. 1987) (“The work itself will continue to give ‘mute testimony’ of its origins.”); Carol Barnhart, Inc. v. Economy Cover Corp., 773 F.2d 411, 414 (2d Cir. 1985) (“[T]he ‘mute testimony'” of a useful article puts a court “in as good a position as the Copyright Office to decide the issue”).

 

As with any other pictorial, graphic, or sculptural work, the Office will not consider the process or materials used to create the work, or the number of copies that have been made. 37 C.F.R. § 202.10 (A). In particular, the Office will not consider the author’s state of mind concerning the intended use of the article. Mazer, 347 U.S. at 218; Star Athletica, 137 S. Ct. at 1015; 37 C.F.R. § 202.10 (A). Nor will the Office consider the marketability or commercial value of the article. See Star Athletica, 137 S. Ct. at 1015; H.R. Rep. No. 94- 1476, at 54 (1976), reprinted in 1976 U.S.C.C.A.N. at 5667.

 

For additional information concerning the factors that the Office will and will not consider when evaluating the design of a useful article, see Section 924.5.