906.8 Functional and Useful Elements
The copyright law does not protect useful articles, utilitarian designs, or any functional portion of a pictorial, graphic, or sculptural work. However, the decorative ornamentation on a useful article may be registrable if it is separable from the functional aspects of that article. For example, a lamp is a considered a useful article, because it has an intrinsic utilitarian function, namely, to provide lighting. By contrast, a three-dimensional floral design affixed to the base of a lamp or a two-dimensional garden design painted on a lamp shade does not have a useful purpose. The U.S. Copyright Office may register those design elements if they are separable from the functional aspects of the lamp and if they are sufficiently original and creative. Fabrica, Inc. v. El Dorado Corp., 697 F.2d 890, 893 [9th Cir. 1983) ("if an article has any intrinsic utilitarian function, it can be denied copyright protection except to the extent that its artistic features can be identified separately and are capable of existing independently as a work of art"].
For a general discussion of the legal standard for evaluating useful articles, see Section 924.
907 Derivative Visual Art Works
907.1 Copyrightable Authorship in Derivative Works
A derivative visual art work is a work based on or derived from one or more preexisting works. A derivative work may be registered if the author of that work contributed a sufficient amount of new authorship to create an original work of authorship. The new material must be original and copyrightable in itself.
Examples of visual art works that may be registered as derivative works include:
• Sculptures based on drawings.
• Drawings based on photographs.
• Lithographs based on paintings.
• Books of maps based on public domain maps with additional features.
Examples of works that cannot be registered as derivative works, because they contain no new authorship or only a de minimis amount of authorship include the following types of visual art works:
• Photocopies and digital scans of works.
• Mere reproductions of preexisting works.
For a general discussion of the legal standard for determining whether a derivative work contains a sufficient amount of original expression to warrant registration, see Chapter 300, Section 311.
Chapter 900 : 16
12/22/2014
