Copyright Law Ronald W. Staudt Class 9 September 26, 2013

Pictorial, Graphic & Sculptural Works- Useful Articles z“As the following materials reveal, the availability of copyright protection for the design of useful objects has evolved from the uncertain to the incoherent.” casebook p. 221

Register’s Report-old news about design patents? Are design patents “inadequate as a practical form of protection for designs?” yPatently Apple: Apple was granted three design patents today. Two covered the original iPad (one, two) and the third covered an iPhone with a larger oblong Home Button.Patently AppleonetwoiPhone with a larger oblong Home Button yDesign firms drive a $1.5 billion industry in the United States, with the number of industrial design patents currently at a 25-year high.Design firms yDesign Patent Only $795*‎‎ yThe fifty companies on the IP Record’s list of the top 50 U.S. design patent grantees for 2012 were collectively granted greater than 150 more patents than the top 50 companies of Samsung, the top design patent recipient in both 2011 and 2012, alone accounts for almost a third of this growth—it was granted 378 design patents in 2012, exactly 50 more than in 2011.

Special Cases zFull protection against copying the three dimensional shape of three kinds of useful articles: yBoat hulls yArchitectural works yComputer mask works

“Pictorial, graphic, and sculptural works include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work 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

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. An article that is normally a part of a useful article is considered a "useful article". 17 U.S.C. 101

§ 113. Scope of exclusive rights in pictorial, graphic, and sculptural works a) Subject to the provisions of subsections (b) and (c) of this section, the exclusive right to reproduce a copyrighted pictorial, graphic, or sculptural work in copies under section 106 includes the right to reproduce the work in or on any kind of article, whether useful or otherwise. (b) This title does not afford, to the owner of copyright in a work that portrays a useful article as such, any greater or lesser rights with respect to the making, distribution, or display of the useful article so portrayed than those afforded to such works under the law, whether title 17 or the common law or statutes of a State, in effect on December 31, 1977, as held applicable and construed by a court in an action brought under this title. (c) In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports. 17 U.S.C. 113

What is a “ useful article? ” zPig noses zCostumes zToy plane zDoll clothes

What useful articles are within copyright subject matter? ythe design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work 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.

What useful articles are within copyright subject matter? Pivot Point ’ s “ Make-up ” Mannequin Head Facts– xorigins of Mara xuses of Mara xLiza and her double hairline yUseful article? ySeparability? yDC adopts Goldstein’s test for separability: Can it stand on its own as a work of art traditionally conceived? And, Would the useful article in which it is embodied be equally useful without it?

Pivot Point ’ s “ Make-up ” Mannequin Head yOther tests for conceptual separability: xArt is primary, utility subsidiary xUseful article marketable for its aesthetic qualities xStimulates a concept in beholder separate from its utilitarian concept xArtistic aspects not overly influenced by utilitarian concerns xArtistic features are not utilitarian xDenicola process centered approach of design reflecting “artistic expression uninhibited by functional considerations”

Prior Caselaw … yBelt buckles -in- 238 (primary/secondary test) yPeople Mannequins -out- 239 (aesthetic aspects useful) yBicycle racks -out- 241 (Denicola test: design process shows aesthetics adapted for utility)

Pivot Point ’ s “ Make-up ” Mannequin Head y“…no evidence that Heerlein’s artistic judgment was constrained by functional considerations.” y“…because Mara was the product of a creative process unfettered by functional concerns, the sculptural features can be identified separately from and are capable of existing independently of its utilitarian aspects.” yDissent: “Mara has no conceptually separate features…without features [she would be] an egg on a stick..” xp. 247 comments- process is irrelevant as is D’s bad behavior

Pictorial, Graphic & Sculptural Works zHeart and Arrow spoons 250 zPhiladelphia Museum of Art 249 yJoe- Mit chair yEasy edges rocker zSupplement pp. 3-6 yBatmobile ySailboat tea light holders yProm dress yHookah