I\u27m a Little Treepot: Conceptual Separability and Affording Copyright Protection to Useful Articles

To determine if a useful article—generally ineligible for copyright protection—has pictorial, graphic, or sculptural features that are copyrightable, the Copyright Act and the legislative intent expressed through the Act’s legislative history require that those artistic features be identified separately and capable of existing independently of the utilitarian function of the work. If the artistic features are either physically or conceptually separable from the utilitarian function of the work, then they are copyrightable. However, determining if artistic features are conceptually separable from the utilitarian function of the work has proven to be extremely difficult. Since Mazer v. Stein, the U.S. Supreme Court’s only decision in this area, courts and scholars have created more than eight different tests for conceptual separability. Some of these tests are entirely inconsistent with the Copyright Act and its purpose; others are overly abstract or difficult to apply; still others require judges to make subjective determinations of artistic worth. As a result, one court may find a work copyrightable, and another court may find the same work uncopyrightable depending on the test applied. To address these and other problems facing those seeking copyright protection for artistic features of useful articles, this Note proposes a test for conceptual separability that is based on an ordinary, reasonable observer standard and that provides factors to guide the fact-finder’s inquiry. This Note’s proposed test for conceptual separability is whether an ordinary, reasonable observer can perceive aesthetic features separate from the article’s utilitarian function. In performing this analysis, the factors that the fact-finder may consider fall into three main categories: (1) objective indicia of public perception; (2) use of the work separate from function; and (3) marketability information. This suggested test is consistent with the Copyright Act, simplifies conceptual separability analysis, and provides much needed clarity for copyrightability in the area of useful articles