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925.3 Works of Artistic Craftsmanship Distinguished from a Useful Article

925.3 Works of Artistic Craftsmanship Distinguished from a Useful Article


As discussed in Sections 925.1 and 925.2, the definition for a work of artistic craftsmanship, the test used to determine if the work is eligible for copyright protection, and the scope of protection for the work are the mirror image of the definition for the design of a useful article and the tests used to evaluate the copyrightability and scope of protection for such works (and vice versa).


By its express terms, the statutory definition for “[p]ictorial, graphic, and sculptural works” distinguishes between “works of artistic craftsmanship” on the one hand, and “the design of a useful article” on the other. 17 U.S.C. § 101. As mentioned in Section 925.1, the first part of the 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 (referencing 37 C.F.R. § 202.8 (A) (1948)). “The second part” of the definition “is an adaptation of language added to the Copyright Office regulations in the mid-1950’s in an effort to implement the Supreme Court’s decision in the Mazer case.” Id. (referencing 37 C.F.R. § 202.10 (C) (1960)); Star Athletica, 137 S. Ct. at 1011-12 (noting that “Congress essentially lifted the language governing protection for the design of a useful article directly from the post-Mazer regulations and placed it into § 101 of the 1976 Act”).


Works of artistic craftsmanship are protectable “insofar as their form but not their mechanical or utilitarian aspects are concerned,” and they are considered works of original authorship under Section 102 (A) (5) of the copyright law. 17 U.S.C. §§ 101, 102 (A) (5).


When examining a work of artistic craftsmanship, the Office applies the test set forth in Section 925.2 to determine if the “delineation and form” of the work is sufficiently creative. In making these determinations, the Office will consider the overall shape and configuration of the work as a whole. See 37 C.F.R. § 202.10 (A). If the work is registered, the registration covers the work as a whole, but it does not cover any of the mechanical or utilitarian aspects of that work.


By contrast, useful articles are not copyrightable as such, although “the design of a useful article” may be considered a pictorial, graphic, or sculptural work under Section 102 (A) (5) of the copyright law. 17 U.S.C. §§ 101, 102 (A) (5). Specifically, the design of a useful article may be protected “only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” 17 U.S.C. § 101.


To determine if a particular feature satisfies this requirement, the Office applies the separability test set forth in Section 924.3, and then determines if that feature contains a sufficient amount of creative expression. Unlike a work of artistic craftsmanship, 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, 1014, 1016.


A useful article must have “an intrinsic utilitarian function.” 17 U.S.C. § 101 (definition of “useful article”). An article “may be aesthetically satisfying” and its appearance may be “determined by esthetic . . . considerations.” H.R. REP. NO. 94-1476, at 55 (1976). But copyright only protects those “elements, if any, which can be identified separately” “from the utilitarian aspects of that article,” rather than “the over-all configuration of the utilitarian article as such.” Id. Works of artistic craftsmanship, by contrast, may serve “primarily an ornamental, and incidentally a useful, purpose.” Perry, 146 U.S. at 75; Star Athletica, 137 S. Ct. at 1011 (noting that the Mazer Court approved the Copyright Office’s regulations extending copyright protection to works of art that might also serve a useful purpose); Mazer, 347 U.S. at 212, 214.


In determining whether a work does – ” or does not – ” have an intrinsic utilitarian function, the Office focuses solely on the work itself. As with any other pictorial, graphic, or sculptural work, the Office will not consider the process used to create the work, or the number of copies that have been made. 37 C.F.R. § 202.10 (A). The Office will not consider the author’s state of mind concerning the intended use of the work. Id. Nor will the Office consider the marketability or commercial value of the work. See H.R. REP. NO. 94-1476, at 54, reprinted in 1976 U.S.C.C.A.N. at 5667.


If there is any doubt as to whether an item is intrinsically or merely incidentally useful, or whether it is intrinsically aesthetic and primarily portrays its own appearance, the Office will treat that item as a useful article and apply the separability test set forth in Section 924.3.

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