Wikilegal/Copyright on utility items
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Wikimedia Commons has a guideline stipulating that “utility items” are generally not covered by copyright. Section 101 of the United States Copyright Act states that “pictorial, graphic, and sculptural works” are eligible for copyright protection, but copyright protection only extends to “features [that] can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” Therefore, if the aesthetic element is inextricably interwoven with the utilitarian aspect of the article, the item is not copyrightable.
Questions presented 
- What is a “utility item” for purposes of copyright protection under the Copyright Act and how have United States courts interpreted utilitarian items in this context?
- How is copyright on utility items applied with respect to designer goods?
What is a “utility item” for purposes of copyright protection under the Copyright Act and how have United States courts interpreted utilitarian items in this context? 
In drafting the Copyright Act, Congress sought to draw a clear line between between industrial designs and works that reflect artistic expression. In application, however, there is no clear line, but rather a spectrum of forms and shapes that have varying degrees of functional concerns. Any element of an industrial product that cannot be physically or conceptually identified as separate from its utilitarian aspects cannot be copyrighted.
An example of an item where the utilitarian aspects could not be separated from the artistic aspects is a bicycle rack called the Ribbon Rack. The Ribbon Rack is formed from one continuous undulating piece of wire is non-copyrightable. Although the designer argued that the Ribbon Rack was inspired by wire sculptures, the functional adaptations that he made to accommodate for utilitarian purposes weighed against a finding of copyright protection. The Ribbon Rack is not copyrightable because the form of the rack is heavily influenced by utilitarian concerns, like space-saving features, widened loops to permit parking, straightened vertical elements to allow for in- and above-ground installation, and used rust proof galvanized steel for security to produce a maintenance free system of parking bicycles. Consequently, any aesthetic elements can not be conceptually separated from the useful elements.
By contrast, jewelry designs are generally copyrightable so long as they exhibit the originality and creativity requirements of copyright. For example, the ornamentation on a line of decorative and jeweled belt buckle qualifies for copyright protection because the functional elements are separable from the sculptural elements. The ornamented surfaces of the buckles are not in any respect required by their functions. The artistic and aesthetic features are merely added to an otherwise useful article. Similarly, toys usually qualify for copyright protection because they contain components that exist independent of their utilitarian aspects. Pieces of applied art in this form are generally subject to copyright protection.
How is copyright on utility items applied with respect to designer goods? 
Generally, clothing is not entitled to copyright protection because it is considered a useful article. Tailoring usually will not qualify for copyright protection because the aesthetic and useful value of tailoring is legally indistinguishable. “Patterns or other artistic features imprinted onto a fabric or that appear repeatedly throughout the dress fabric may be entitled to copyright protection if they can be identified separately from, and are capable of existing independently of, the utilitarian purpose.” Therefore, copyrightability of designer goods may depend on the scope of the copyright a designer seeks.
Alternatively, fashion designers may seek protection of their works from trade dress law rather than copyright law. Because fashion designers often run into the separability issue, trade dress provides comparatively more protection than copyright. Trade dress protects the “total image, design, and appearance of a product,” including “size, shape, color, color combinations, texture or graphics.” To succeed on a claim of trade dress violation, the claimant must show two things:
- the design must have inherent distinctiveness or secondary meaning; and
- there will be a likelihood of consumers confusing the claimant's product with the allegedly infringing product.
To acquire secondary meaning, consumers have to actually associate the design with the designer. When courts evaluate the “overall look” of the combination of features, they will look at the features taken together, not in isolation. For example, trade dress may be recognized for a line of spring/summer one-piece seersucker outfits decorated with appliques of hearts, flowers, fruits, and the like, provided that the outfits acquired secondary meaning. The secondary meaning requirement presents a high bar for designers to meet, but it serves the purpose of extending trade dress protection to help consumers distinguish among competing products and to protect producers against misappropriated good will.
In summary, copyrightability of useful items hinges on how separable the artistic elements are from the useful elements of the item. There are no bright lines to determine the copyrightability of a particular “useful” article because considerations usually have to be made on a case by case basis. Trade dress may provide an alternative source of protection fashion designs. For more information on how copyright may apply to a specific item, the designer should consult an attorney who is familiar with the copyright laws of the appropriate jurisdiction.
- Copyright Act of 1976, 17 U.S.C. § 102(a)(5).
- Id. at § 101.
- Nimmer on Copyright § 2.08[B] at 2-93 to 2-96.2 (1986).
- Brandir Intern., Inc. v. Cascade Pacific Lumber Co., 834 F.2d 1142, 1143 (2d Cir. 1987).
- Id. at 1145.
- H.R.Rep. No. 1476, at 55, U.S.Code Cong. & Admin.News 1976, p. 5668.
- Brandir, 834 F.2d at 1146.
- Id. at 1147.
- See e.g. R.F.M.A.S., Inc. v. Mimi S, 619 F.Supp.2d 39 (S.D.N.Y. 2009), Donald Bruce & Co. v. B. H. Multi Com Corp., 964 F. Supp. 265 (N.D. Il. 1997), Eyal R.D. Corp. v. Jewelex New York, Ltd. 576 F. Supp. 2D 626 (S.D.N.Y. 2008).
- See Kieselstein-Cord, 632 F.2d at 991-93.
- Hasbro Bradley, Inc. v. Sparkle Toys, Inc., 780 F.2d 189, 192 (2d Cir. 1985).
- See Lanard Toys Ltd. Novelty, Inc. 375 Fed.Appx. 705 (9th Cir. 2010).
- Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2d Cir.1995).
- Elizabeth Mills, Intellectual Property Protection for Fashion Design: An Overview of Existing Law and a Look Toward Proposed Legislative Changes, 5 Schidler J. L. Com. & Tech. 24, 26 (2009).
- Entertainment Research Group, Inc. v. Genesis Creative Group, Inc., 122 F.3d 1211, 1221 (9th Cir. 1997).
- See Lanham Act § 43(a) (providing that plaintiffs can recover damages for “in connection with any goods ... or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof ... which ... is likely to cause confusion, or to cause mistake, or to deceive ... as to the origin, sponsorship, or approval of his or her goods ... by another person.”)
- Cosmos Jewelry Ltd. v. Po Sun Hon Co., 470 F. Supp. 2d 1072, 1085 (C.D. Cal. 2006) (citing Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1257 (9th Cir. 2001), aff’d, Cosmos Jewelry Ltd. v. Po Sun Hon Co., No. 07-55333, 2009 WL 766517 (9th Cir. Mar 24, 2009)).
- A work acquires secondary meaning when “in the minds of the public, the primary significance of a product feature . . . is to identify the source of the product rather than the product itself.” Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 163 (1995) (citing Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 851, n.11 (1982)).
- Cosmos Jewelry, 470 F. Supp. 2d at 1085.
- Wal-mart Stores, Inc. v. Samara Brothers, Inc. 529 U.S. 205, 212 (2000).
- See LeSportsac, Inc. v. K Mart Corp., 754 F.2d 71, 76 (2d Cir.1985).
- See Wal-mart Stores, 529 U.S. 205 (2000).
- See Fun–Damental Too, Ltd. v. Gemmy Indus. Corp., 111 F.3d 993, 999 (2d Cir.1997).
Community comments 
It would be useful to see how other countries besides the United States have interpreted their copyright laws with respect to utility items. 18.104.22.168 18:59, 3 May 2012 (UTC)