Copyright Compendium

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925.1 What Is a Work of Artistic Craftsmanship?

 

925.1 What Is a Work of Artistic Craftsmanship?

 

The Copyright Act protects “works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned.” 17 U.S.C. § 101. This part of the statutory definition “is classic language . . . drawn from Copyright Office regulations promulgated in the 1940’s and expressly endorsed by the Supreme Court in the Mazer case.” H.R. REP. NO. 94-1476, at 54-55 (1976), reprinted in 1976 U.S.C.C.A.N at 5667-68 (referring to 37 C.F.R. § 202.8 (A) (1948)).

 

A work of artistic craftsmanship is a decorative or ornamental object that can be considered a “work of art,” even though it “might also serve a useful purpose.” See Star Athletica, 137 S. Ct. at 1011 (interpreting U.S. Copyright Office regulation 37 C.F.R. § 202.8 (A) (1948) governing “works of artistic craftsmanship”); Mazer, 347 U.S. at 212, 213-14 (same).

 

The definition of a work of artistic craftsmanship is converse to the definition for a useful article. A useful article is “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” 17 U.S.C. § 101. By contrast, a work of artistic craftsmanship is intrinsically aesthetic in nature, and the work primarily portrays its own appearance. This is the essential and fundamental characteristic of the work (even though it may have some mechanical or utilitarian aspects).

 

Works of artistic craftsmanship are protected by copyright and may be registered, regardless of their mechanical or utilitarian aspects. Representative examples of such works include:

 

• Ornamental jewelry

 

• Decorative masks

 

• Stained glass windows

 

• Tapestries

 

• Mosaics

 

• Wallpaper designs

 

• Decorative bookends or paperweights

 

• Benvenuto Cellini’s salt cellar

 

Benuto Cellini, Gold Salt (circa 1540-1543), cited in Brief for Respondents, Mazer v. Stein, 347 U.S. 201 (1954) (No. 228) (reproduction from MUSEUM OF MODERN ART, ART TREASURES FROM THE VIENNA COLLECTIONS, Plate XXXVIII (1949)).

 

Although not the main issue in the case, the cast iron bank from L. Batlin & Son v. Snyder is another classic example of a work of artistic craftsmanship. The bank features a sculpted figure of Uncle Sam with a carpet bag and umbrella standing on a base decorated with streamers and an eagle. The bank has an internal mechanism that is operated with a lever. When a coin is placed in the figure’s hand and the lever is pressed, Uncle Sam smiles, lowers his arm, and drops the coin into the carpetbag. Although it has mechanical components, the bank has a “basic delightful design” that “qualifies as a work of art.” 536 F.2d 486, 488, 491, 492 (2d Cir. 1976). And like most coin banks, it “falls within the class of artistic works which, however debatable their aesthetic merit, are clearly artistic in conception.” Brief for the Register of Copyrights as Amicus Curiae Supporting Respondents at 27 n.10, Mazer v. Stein, 347 U.S. 201 (1954) (No. 228).

 

U.S. Design Patent No. 16,728, cited in L. Batlin & Son, 536 F.2d at 488.

 

These types of works are considered “objects of art,” even though they may have some “incidentally . . . useful purpose.” United States v. Perry, 146 U.S. 71, 75 (1892). In each case, the work is innately artistic, and any incidental mechanical or utilitarian aspects are simply inherent in the object of the art form. Brief for the Register of Copyrights as Amicus Curiae Supporting Respondents at 30, Mazer v. Stein, 347 U.S. 201 (1954) (No. 228).

 

For instance, stained glass, tapestries, mosaics, and wallpaper are primarily used to decorate interior spaces, but they may also be incidentally useful in filtering sunlight, blocking cold air, repelling water, or reflecting ambient light. Sculpted bookends or paperweights are primarily decorative and incidentally useful in holding books upright or keeping papers in place. And most piggybanks are primarily ornamental, but also incidentally useful for actually storing coins.

 

If an object is intrinsically aesthetic in nature and primarily portrays its own appearance it may be considered a work of artistic craftsmanship, even if it is incidentally useful. Because copyright does not extend to a work’s mechanical or useful aspects, a registration for a work of artistic craftsmanship does not extend to those aspects, such as plain clasps, straps, or snaps that secure ornamental jewelry or a decorative mask to a person’s body. See Registrability of Costume Designs, 56 Fed. Reg. 56,530 (Nov. 5, 1991) (discussing the Office’s policy on the registrability of decorative masks).

 

The Office will determine whether an object is – ” or is not – ” intrinsically aesthetic and primarily portrays its own appearance, based solely on the item shown in the deposit. The Office will consider the overall appearance of the item, including the form, shape, and configuration of the object as a whole, and the essential and innate qualities or characteristics of the object. However, the Office will not consider the author’s subjective intent concerning the decorative, ornamental, or utilitarian purpose of the object. It will not consider the author’s skill, experience, or artistic reputation. It will not consider the marketability or commercial value of the object or the number of copies made. Nor will it consider the subjective reaction of any person in relation to the object. For this reason, the Office does not invite and will not consider evidence concerning the perception or use of the object by actual users or purchasers. See Star Athletica, 137 S. Ct. at 1015; Mazer, 347 U.S. at 218; 37 C.F.R. § 202.10 (A); H.R. REP. NO. 94-1476, at 54 (1976), reprinted in 1976 U.S.C.C.A.N. at 5667; Brief for the Register of Copyrights as Amicus Curiae Supporting Respondents at 32-34, Mazer v. Stein, 347 U.S. 201 (1954) (No. 228).