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

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924.3 (C) Separable Features May Enhance the Functionality of the Useful Article

924.3 (C) Separable Features May Enhance the Functionality of the Useful Article

As discussed in Section 924.3 (B), an artistic feature cannot be a useful article in and of itself, and it cannot be “[a]n article that is normally a part of a useful article.” Star Athletica, 137 S. Ct. at 1010. But the Supreme Court made it clear that a separable artistic feature may be copyrightable “even if it makes that [useful] article more useful.”

Id. at 1014; Mazer, 347 U.S. at 211 (“Verbal distinctions between purely aesthetic articles and useful works of art ended” in 1870).

To be eligible for copyright protection, an artistic feature must “qualify as a nonuseful pictorial, graphic, or sculptural work” once that feature “has been imaginatively

separated from the article” and considered entirely “on its own.” Star Athletica, 137 S. Ct. at 1013, 1014. If that is the case, the feature will satisfy the separability test, even if it serves a useful purpose when it is incorporated into a useful article.

For example, in Mazer v. Stein, the respondent registered a pair of statuettes, which were intended to be used as table lamps “with electric wiring, sockets and lamp shades attached.” 347 U.S. at 202. Pictures of one of these items are shown below.

A lamp is a useful article, because it provides illumination. The lamp base would also be considered a useful article, because it is normally a part of a lamp, and it has an intrinsically useful purpose: It supports the bulb, socket, and lamp shade. Applying the separability test to this element is straightforward. The base is a statuette, and if it was imagined apart from the lamp it would be considered a sculptural work. The statuette would not be intrinsically useful if it was conceptually removed from the lamp and considered on its own. Moreover, this is true even though the statuette could potentially be used in a functional manner when fitted with a shade, bulb, and wires.

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