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

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924.3 (B) The Independent-Existence Requirement

924.3 (B) The Independent-Existence Requirement

The second part of the separability test is “more difficult to satisfy.” Star Athletica, 137 S. Ct. at 1010.

The registration specialist must determine if “the separately identified feature has the capacity to exist apart from the utilitarian aspects of the article.” Id. “In other words, the feature must be able to exist” as a pictorial, graphic, or sculptural work – ” “either on its own or when fixed in some other tangible medium [of expression]” – ” once it has been “identified and imagined apart from the useful article.” Id. at 1010, 1012. “If the feature is not capable of existing as a pictorial, graphic, or sculptural work once [it has been conceptually] separated from the useful article,” then it is simply one of the “utilitarian aspects” of the useful article that is not eligible for copyright protection. Id. at 1010.

To be clear, the copyright law does not protect the overall form, shape, or configuration of the useful article itself. The Supreme Court made it clear that “the separated feature [must] qualify as a nonuseful pictorial, graphic, or sculptural work on its own.” Id. at 1013. The feature cannot “be a useful article” in and of itself. Id. at 1010. Nor can it be “[a]n article that is normally a part of a useful article.” Id. (quoting 17 U.S.C. § 101, definition of “useful article”). And when the feature is conceptually removed from the useful article and imagined in another medium, it cannot be a replica of the article itself or a part of it. See id. at 1010, 1012.

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

• A work of art printed on a t-shirt.

• An etching on a tray.

• An artistic pattern printed on drapery.

• A statuette used as a lamp base.

• A floral relief design on silver flatware.

• A sculpted figure used as the handle of a letter opener.

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

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