Copyright Compendium

Search
Filters
Exact matches only
Search in title
Search in content
Chapter 100
Chapter 200
Chapter 300
Chapter 400
Chapter 500
Chapter 600
Chapter 700
Chapter 800
Chapter 900
Chapter 1000
Chapter 1100
Chapter 1200
Chapter 1300
Chapter 1400
Chapter 1500
Chapter 1600
Chapter 1700
Chapter 1800
Chapter 1900
Chapter 2000
Chapter 2100
Chapter 2200
Chapter 2300
Chapter 2400

925.2 Copyrightable Authorship in Works of Artistic Craftsmanship

925.2 Copyrightable Authorship in Works of Artistic Craftsmanship


The copyright law protects works of artistic craftsmanship as pictorial, graphic, or sculptural works “insofar as their form but not their mechanical or utilitarian aspects are concerned.” 17 U.S.C. § 101 (definition of “pictorial, graphic, and sculptural works”).


As with any other pictorial, graphic, or sculptural work, a work of artistic craftsmanship may be registered if the “delineation and form” of the work is sufficiently creative. See 37 C.F.R. § 202.10 (A). As discussed in Section 925.1, the U.S. Copyright Office will consider the overall shape and configuration of the work. Id. But the Office will not consider any of the mechanical or utilitarian aspects of the work, such as the dowel hanger at the top of a tapestry or the plug in the belly of a piggybank.


In this respect, the test for evaluating a work of artistic craftsmanship is the mirror image of the test for evaluating the design of a useful article. Instead of separating an artistic feature from the utilitarian aspects of a useful article, the Office must segregate the mechanical or utilitarian aspects of a work of art. Like the separability test described in Section 924.3, this is a “conceptual undertaking.” Star Athletica, 137 S. Ct. at 1014.


This approach follows the practices developed by the Office, and considered by the courts, more than sixty years ago. As Register Fisher testified in Mazer v. Stein:


[O]ur problem is to determine whether the work submitted is a work of art. We make that determination and registration even though we may have reason to believe that the work of art may happen to be used for some other purpose.


[T]he phrase ‘insofar as their form but not their mechanical or utilitarian aspects are concerned’ is interpreted by the office and by our examiners to permit them to deal only with the question of whether the work is a work of artistic craftsmanship,

and . . . it is our practice to consider as immaterial whether the work may also have a mechanical or utilitarian aspect.


Transcript of Proceedings at 56, Stein v. Mazer, 111 F. Supp. 359 (D. Md. Nov. 20, 1952) (No. 5879); Brief for the Register of Copyrights as Amicus Curiae Supporting Respondents at 11-12, Mazer v. Stein, 347 U.S. 201 (1954) (No. 228).


In exceptional cases, the registration specialist may add an annotation to the record,

such as: “Basis for registration: Work of artistic craftsmanship.” As a general rule, the specialist will add an annotation only when the Office determines that clarification will aid the public’s understanding of the scope of the registration.


The specialist may refuse registration if there is “an entire absence of artistic

craftsmanship notwithstanding the presence of a pleasing functional design.” Brief for the Register of Copyrights as Amicus Curiae Supporting Respondents at 29, Mazer v. Stein, 347 U.S. 201 (1954) (No. 228). Likewise, the specialist may refuse registration if he or she determines that the object is a useful article with no separable copyrightable features (rather than a work of artistic craftsmanship).