Useful Articles, Works for Hire Intro to IP – Prof Merges

Today’s Topics Useful Articles Government Works Ownership (Works for Hire)

Mazer v. Stein: Lamp Base/Statue may be copyrighted

Pictorial, Graphic & Sculptural Works [PGS] – Sec. 101 Includes “two dimensional and three dimensional works of fine, graphics, and applied art, … 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 ….”

PGS works (cont’d) “…the design of a useful article … shall be considered a [PGS] work only if, and only to the extent that, such design incorporates [PGS] features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”

Sec. 101: “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”.

Applied art vs. “industrial design” Applied art: hood ornament; cartoon character figures attached to a product; separate, decorative elements of commercial products Industrial design: sleek and comfortable pen or kitchen appliance; sports car design

IDSA Award Winners

Design Elements

Brandir Int’l v. Cascade Pacific Physical separability: Mazer; hood ornament “Conceptual separability” – what does this mean in practice?

'RIBBON' and the Brandir International Inc. logo are trademarks of Brandir International Inc. used exclusively by A A A RIBBON Rack Co.

Carol Barnhart

Conceptual separability test Judge Newman test (Carol Barnhart dissent): object stimulates a conception that is separate from its utilitarian function...” Too “ethereal”?

Commercial market “test” If a work is mass produced, and sold for a useful purpose, it is not copyrightable... Problems: Shuts down market for “applied art”? Salvador Dali ties; Picasso trash cans...

Denicola Test “Industrial design process” – Height, bends, and material – all utilitarian – Compare: ties and waste basket...

P. 427 “[I]t is in its final form a work of industrial design...”

“Form and function are inextricably intertwined in the rack...” -- p. 427 Of course, this is the essence of much of modern design: Form follows Function!

Form and function...

Kieselstein: Belt Buckles

Dissent: Judge Winter Purely fortuitous events dictate the outcome under the Brandir test – What if “aesthetic” sculpture happened to coincide with good dimensions for a bike rack?

Government Works Statutes, case law, regulations Idea/Expression merger here? Government contractors’ works: case by case

Ownership Patent vs. Copyright Copyright “vests initially in the author or authors of the work.” Section 201 Patent: same

Section 201(b) (b) Works Made for Hire. — In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

James Reid

Reid and CCNV

A “work made for hire” is — (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

CCNV v Reid 4 tests on operation, p. 450 Control vs. “agency” Court takes “common law agency” view