copyright law ronald w. staudt class 9 september 26, 2013
TRANSCRIPT
Copyright Law Ronald W. Staudt
Class 9September 26, 2013
Pictorial, Graphic & Sculptural Works- Useful Articles
“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?”
Patently 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.
Design 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 Patent Only $795*
The 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 2011. 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
Full protection against copying the three dimensional shape of three kinds of useful articles: Boat hulls Architectural works Computer 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?”
Pig noses
Costumes
Toy plane
Doll clothes
What useful articles are within copyright subject matter?
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.
What useful articles are within copyright subject matter?
Pivot Point’s “Make-up” Mannequin Head
Facts– origins of Marauses of MaraLiza and her double hairline
Useful article? Separability?
DC 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
Other tests for conceptual separability:Art is primary, utility subsidiaryUseful article marketable for its aesthetic
qualitiesStimulates a concept in beholder separate from
its utilitarian conceptArtistic aspects not overly influenced by
utilitarian concernsArtistic features are not utilitarianDenicola process centered approach of
design reflecting “artistic expression uninhibited by functional considerations”
Prior Caselaw…
Belt buckles -in- 238 (primary/secondary test)
People Mannequins -out- 239 (aesthetic aspects useful)
Bicycle racks -out- 241 (Denicola test: design process shows aesthetics adapted for utility)
Pivot Point’s “Make-up” Mannequin Head
“…no evidence that Heerlein’s artistic judgment was constrained by functional considerations.”
“…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.”
Dissent: “Mara has no conceptually separate features…without features [she would be] an egg on a stick..”
p. 247 comments- process is irrelevant as is
D’s bad behavior
Pictorial, Graphic & Sculptural Works Heart and Arrow spoons 250 Philadelphia Museum of Art 249
Joe- Mit chair Easy edges rocker
Supplement pp. 3-6 Batmobile Sailboat tea light holders Prom dress Hookah