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

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924.3 (D) Separable Features May Cover the Entire Surface of a Useful Article


924.3 (D) Separable Features May Cover the Entire Surface of a Useful Article


A two- or three-dimensional pattern, picture, or design that has been applied to the surface of a useful article may be capable of existing on its own as a pictorial, graphic, or sculptural work.


Surface ornamentation usually retains its decorative features, regardless of the material or object to which it is applied. It may be eligible for copyright protection, even if it covers the entire surface of a useful article. And this artistic expression may be protected even if it would retain the overall shape of a useful article if that feature was imaginatively removed from that article.


“Just as two-dimensional fine art corresponds to the shape of the canvas on which it is painted, two-dimensional applied art correlates to the contours of the article to which it is applied.” Star Athletica, 137 S. Ct. at 1012. As discussed in Section 924.3 (B), an artistic feature may be protectable if it can be identified and imagined apart from a useful article. Once the feature has been conceptually separated from the article, the key question is whether it qualifies as a nonuseful pictorial, graphic, or sculptural work, or whether it is merely a replica of the article itself.


As the Supreme Court noted, a design etched or painted onto the surface of a guitar may have pictorial or graphic qualities. “If that entire design is imaginatively removed from the guitar’s surface and placed on an album cover, it would still resemble the shape of a guitar. But the image on the cover does not ‘replicate’ the guitar as a useful article.” Id. Instead, the surface design would be considered a two-dimensional work of art that simply “corresponds to the shape of the useful article to which it was applied.” Id. In other words, the design may portray the appearance of a three-dimensional object in two-dimensional form, but it is not a useful article in and of itself. And if that surface design is sufficiently creative it could be protected as applied art.


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