16. Copyright and Objects
Learning Objectives: Unit 16
Upon completion of this unit, you should be able to:
- Recall the facts and legal holding of Star Athletica v. Varsity Brands.
- Explain the following concepts: useful articles doctrine, separability and merger.
- Recall the statutory components of the useful articles doctrine; and
- Analyze fact patterns in terms of the useful articles doctrine.
One of the most complex issues in intellectual property law is dealing with products or activities at the boundaries of one or more doctrine. This matters because often specific policy choices are made in the context of one form of intellectual property right and allowing another intellectual property right to also cover the same subject matter as the first right results in those policy choices essentially being overridden by the policy choices embedded in the second right. We can think of this as keeping each intellectual property right in its own “channel.” This is especially important when the policy choices for particular intellectual property right manifest in negative protection – that is, a policy decision to allow copying or use by others. An example of this would be the 20-year term on a patent. If another form of intellectual property allowed for longer protection of the same subject matter, then others would not be able to use or build on that invention after the expiration of the patent.
In the section, we examined preemption, which is one approach to policing the boundaries of an intellectual property right and preventing it from bleeding over into another. However, preemption only applies in the context of federal-state relationships. Another approach is to statutorily limit an intellectual property right so as to keep it from crossing over into the subject matter governed by another intellectual property right.
You have already seen one example of statutorily limiting an intellectual property right in the concept of functionality in trademark law. In this section we will examine another example: the limits on copyright protection for “useful articles.”
17 U.S.C. § 101. Definitions (2010)
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Useful Article: 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”.
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Pictorial, Graphical, and Sculptural 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.
