Copyright Compendium

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924.3 The Separability Test

 

924.3 The Separability Test

 

To determine whether the design of a useful article may be eligible for copyright protection, the U.S. Copyright Office applies a two-step test.

 

First, the Office will examine the item for any features that “can be perceived as a two- or three-dimensional work of art separate from the useful article.” Star Athletica, 137 S. Ct. at 1007. This is known as the “separate-identification” requirement. Id.

 

Second, the Office will determine if that feature “would qualify as a protectable pictorial, graphic, or sculptural work – ” either on its own or fixed in some other tangible medium of expression – ” if it were imagined separately from the useful article into which it is incorporated.” Id. This is known as the “independent-existence” requirement. Id.

 

These requirements are discussed in more detail in Sections 924.3 (A) and 924.3 (B).

 

NOTE: As a general rule, the Office will not consider the originality of the design when applying the first or second part of the separability test. In other words, the registration specialist will determine if the design can be identified separately from, and is capable of existing independently of, the utilitarian aspects of the article. Then the specialist will determine if the design contains a sufficient amount of creative expression to warrant registration. For information concerning when and how the Office will apply the originality test to the design of a useful article, see Section 924.4.