Art Law

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In the Copyright Act of 1976, Congress granted copyright for useful articles “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.” Since then, courts and commentators have struggled to develop a coherent test for separability. And while separability was the subject of much discussion in the academic literature in the 1980s and 1990s, academic interest in this topic has cooled since then. But the time has come to reignite that discussion. This panel will discuss the history, purpose, and policy justification for copyright’s useful articles doctrine, with a particular focus on the role that a work’s art status should—or should not—play in analyzing copyrightability. Many past discussions of separability have focused on the question: “Is it art?” But is that really the right question? If not, what is the purpose of the separability requirement? Is it to prevent “functional” works from being protected by copyright, akin to the doctrine of functionality in trade dress law? Is it to channel certain works into the design patent regime? Is it something else entirely?