Copyright Compendium

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Chapter 2400

924.4 The Originality Test

 

924.4 The Originality Test

 

If the separability test has been satisfied, the U.S. Copyright Office still must determine if the design is sufficiently original to warrant registration. See Star Athletica, 137 S. Ct. at 1012 & n.1 (concluding that the respondent’s surface decorations were separable, but “express[ing] no opinion on whether these works are sufficiently original to qualify for copyright protection” or “whether any other prerequisite of a valid copyright has been satisfied”).

 

To be registered, the separable features of a useful article must constitute “copyrightable subject matter.” Id. at 1008. The statute defines “copyrightable subject matter as ‘original works of authorship fixed in any tangible medium of expression.'” Id. at 1008 (quoting 17 U.S.C. § 102 (A)). As discussed in Chapter 300, Section 308, the term “original” means that the design must be “independently created by the author” and must possess “at least some minimal degree of creativity.” Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 345 (1991).

 

As discussed in Section 924.3 (E), a separable feature must be capable of existing as a pictorial, graphic, or sculptural work entirely “on its own.” Star Athletica, 137 S. Ct. at 1013. “In other words, the feature must be able to exist as its own pictorial, graphic, or sculptural work . . . once it is imagined apart from the useful article.” Id. at 1010 (emphasis added). That is, the Office imagines how those features would appear if they were conceptually removed from the useful article, and then determines if that “standalone” design contains a sufficient amount of creative expression to warrant registration. Id. at 1011.