Compendium of U.S. Copyright Practices, 3rd Edition

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924.2 What Is the Design of a Useful Article?

924.2 What Is the Design of a Useful Article?

The “design” of a useful article refers “to the combination of details or features that . . . make up the useful article.” Star Athletica, 137 S. Ct. at 1009.

As discussed in Section 924, the design of a useful article may be “considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” 17 U.S.C. § 101.

In making this determination, the U.S. Copyright Office applies the separability test set forth in Star Athletica, LLC, v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017), which is described in more detail in Section 924.3. This test is based on the text of section 101 – ” “giving each word its ordinary, contemporary, common meaning” – ” and based on “the provisions of the whole law” that give “instruction as to its meaning.” Id. at 1008, 1010, 1014 (acknowledging but declining to apply alternate tests).

Congress and the Supreme Court made clear that the Copyright Act does not provide protection for useful articles in and of themselves. Likewise, copyright law does not protect the overall form, shape, or configuration of a useful article, no matter how aesthetically pleasing it may be. See id. at 1010, 1014. Thus, if a useful article does not contain any features that can be separated from the utilitarian aspects of the article or the overall shape of the article, the Office will refuse to register the claim. See id. at 1007;

H.R. REP. NO. 94-1476, at 55 (1976), reprinted in 1976 U.S.C.C.A.N. at 5668 (“[A]lthough the shape of an industrial product may be aesthetically satisfying and valuable, the Committee’s intention is not to offer it copyright protection under the bill.”).

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