Copyright Law

Boston College Law School

January 22, 2003

Works of Authorship (cont’d)

17 U.S.C. § 102

• (a) Copyright protection subsists,… in original works of authorship fixed in a tangible medium of expression, …. Works of authorship include the following categories:– (1) literary works;

– (2) musical works, …;

– (3) dramatic works;

– (4) pantomimes and choreographic works;

– (5) pictorial, graphic, and sculptural works;

– (6) motion pictures and other audio visual works;

– (7) sound recordings; and

– (8) architectural works

Pictorial, Graphic, Sculptural

• 17 U.S.C. § 101: – Pictorial, graphic, and sculptural works:

• “include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproduction, maps, globes, charts, diagrams, models, and technical drawings …”

Pictorial, Graphic, Sculptural

Mazer v. Stein

Pictorial, Graphic, Sculptural

• 17 U.S.C. § 101: – Pictorial, graphic, and sculptural works:

• “include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproduction, maps, globes, charts, diagrams, models, and technical drawings …”

Pictorial, Graphical, Sculptural

• 17 U.S.C. § 101: – Pictorial, graphic, and sculptural works:

• “the design of a useful article … 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.”

Useful Article Doctrine

• 17 U.S.C. § 101: – Useful article:

• “article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.”

• H.R. Rep. No. 94-1476:– “Separability”

• Physical separability

• Conceptual separability

Useful Article DoctrineApplied Art Industrial Design

Carol Barnhart v. Economy

Conceptual Separability

• Tests for Conceptual Separability– Primary use– Primarily aesthetic (Oakes in Kieselstein)– Marketeable as art (Nimmer)– Artistic design process (Denicola)– Temporal displacement (Newman)

Brandir v. Cascade

• Primary use• Primarily aesthetic (Oakes)• Marketed as art (Nimmer)• Design process (Denicola)• Temporal displacement (Newman)

Hypotheticals

Other Design Protection Regimes

• Sui Generis Legislation– Not passed

• Design Patents– Novelty, nonobviousness, …– Must get approval from PTO

• Trademarks– Secondary meaning– Nonfunctionality

Copyright, Patent, Trademark

Patent Copyright

TrademarkFunctionality

Doctrine

Useful ArticleDoctrine

ProductDesign

Motion Picture or Other A/V

• 17 U.S.C. § 101: – Audiovisual work:

• “a series of related images which are intrinsically intended to be shown by the use of machines and devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embedded.”

Architectural Works

• 17 U.S.C. § 101: – Architectural work:

• “the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.”

• Leg. Hist.– No protection for elements that are “functionally

required”

Assignment for Next Class

• Read III.B - Derivative Works and Compilations