Copyright Compendium

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924.3 (F) The Overall Shape of a Useful Article Is Not Protectable

 

924.3 (F) The Overall Shape of a Useful Article Is Not Protectable

 

Congress provided “limited copyright protection for certain features of industrial designs.” Star Athletica, 137 S. Ct. at 1007. Specifically, the copyright law only protects separable “pictorial, graphic, or sculptural features” that are “incorporate[d]” into the design of a useful article. 17 U.S.C. § 101 (definition of “pictorial, graphic, and sculptural works”; emphasis added).

 

As discussed above, the copyright law may protect the shape of a particular feature that has been incorporated into the design of a useful article if it is separable – ” meaning that it can be imagined apart from the utilitarian aspects of that article. But the copyright law does not protect the overall form, shape, or configuration of the useful article itself, no matter how pleasing or attractive it may be. See Star Athletica, 137 S. Ct. at 1010 (recognizing that a design feature cannot “be a useful article” in and of itself or “[a]n article that is normally part of a useful article”); id. at 1014 (stating that “some aspects of the useful article” must be “left behind” once the artistic feature has been “conceptually removed” from that article); id. at 1016 (stating that “our test does not render the shape, cut, and physical dimensions of the [useful article] eligible for copyright protection”); see also H.R. REP. NO. 94-1476, at 55 (noting that copyright protection does “not cover the over-all configuration of the utilitarian article as such”), reprinted in 1976 U.S.C.C.A.N. at 5668.

 

For example, in Esquire, Inc. v. Ringer, the appellant attempted to register “the overall shape of certain outdoor lighting fixtures.” 591 F.2d 796, 798 (D.C. Cir. 1978). The “[p]hotographs accompanying the applications showed stationary outdoor luminaries or floodlights, of contemporary design, with rounded or elliptically-shaped housings.” Id. These items could not be registered, because they did not contain any “elements, either alone or in combination, which are capable of independent existence as a copyrightable pictorial, graphic, or sculptural work.” Id. at 798-99.

 

The fixtures contained five elements: An elliptical or oblate-shaped housing, a base, an electrical socket, wires, and a light bulb. See id. at 798 n.2, 806. While these elements – ” particularly the housing and the base – ” can each be imagined in isolation, that is not the end of the inquiry. These elements are still considered useful articles for purposes of registration, because they have an “intrinsic utilitarian purpose” and each item is “[a]n article that is normally a part of a useful article.” 17 U.S.C. § 101 (definition of “useful article”).

 

There is arguably some – ” albeit minimal – ” sculptural quality in the overall shape of the housing and base. But that shape cannot exist as a standalone sculptural work. If that shape was recast in another medium, it would merely be an exact replica of a useful article, and unprotectable as a stand-alone sculptural work. See Chapter 300, § 313.4 (A). Thus for purposes of registration, the overall shape of the base and housing does not contain any features that can be identified separately from, or any features that are capable of existing independently of, the utilitarian aspects of this useful article.

 

NOTE: Although the Copyright Office would refuse to register a useful article with no separable features, it may register the overall shape, form, and configuration of a work of artistic craftsmanship if that work is sufficiently creative. For a detailed discussion of the differences between a useful article and a work of artistic craftsmanship, see Section 925.3.