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

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924.3 (A) The Separate-Identification Requirement

924.3 (A) The Separate-Identification Requirement

The first part of the separability test “is not onerous.” Star Athletica, 137 S. Ct. at 1010.

As a preliminary matter, the registration specialist will review the item depicted in the identifying material to determine if it is a useful article. In addition, the specialist will determine if any part of the article has an intrinsic utilitarian function, and as such, should also be considered a useful article. See 17 U.S.C. § 101 (definition of “useful article”). The criteria used in making these determinations are summarized in Section 924.1.

“The statute requires separability analysis for any ‘pictorial, graphic, or sculptural features’ incorporated into the ‘design of a useful article.'” Star Athletica, 137 S. Ct. at 1009 (emphasis added). That necessarily means that the Office must apply the separability test in all cases, even if the design only appears on part of a useful article.

If the item or part of the item appears to be a useful article, the specialist will look at the article to determine if he or she can “spot some two- or three- dimensional element that appears to have pictorial, graphic, or sculptural qualities.” Id. at 1010.

In this context, “pictorial” and “graphic” qualities may include pictures, drawings, illustrations, or other two-dimensional artwork. Id. at 1009. Sculptural qualities may include carvings, engravings, moldings, or other three-dimensional artwork.

If the useful article appears to have some pictorial, graphic, or sculptural qualities, the specialist will proceed to the second part of the separability test, which is described in Section 924.3 (B). If the specialist is unable to identify any features that have a pictorial, graphic, or sculptural quality, he or she will refuse to register the claim.

The following are representative examples of two- and three-dimensional features that typically satisfy the separate-identification requirement:

• A painting on a dinner plate.

• A portrait painted on a cigar box.

• An artistic print on wrapping paper or a paper bag.

• An artistic pattern woven into a rug.

• A carving on the back of a chair.

• A decorative hood ornament on an automobile.

• Artistic scroll work framed as a fireplace screen.

For additional examples that help illustrate how the Office applies the separate- identification requirement, see Sections 924.3 (C) through 924.3 (F).

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