the Office will examine those features to determine if they contain a sufficient amount of original authorship to warrant registration.
The Office will register claims to copyright in useful articles only on the basis of separately identifiable pictorial, graphic, or sculptural features. These features should be capable of independent existence apart from the overall shape of the useful article. The Office uses two tests to determine if the useful elements of an article are separable from the copyrightable elements: the physical and conceptual separability tests. These tests are discussed in Sections 924.2(A] and 924.2(B].
The useful elements of an article will be considered separable from the copyrightable elements if the copyrightable elements could be physically removed without altering the useful aspects of the article. This is known as the physical separability test. Physical separability means that the useful article contains pictorial, graphic, or sculptural features that can be physically separated from the article by ordinary means while leaving the utilitarian aspects of the article completely intact.
Example:
• A sufficiently creative decorative hood ornament on an automobile.
The U.S. Copyright Office applies the conceptual separability test only if it determines that the useful article contains pictorial, graphic, or sculptural features that cannot be physically separated from that article.
Conceptual separability means that a feature of the useful article is clearly recognizable as a pictorial, graphic, or sculptural work, notwithstanding the fact that it cannot be physically separated from the article by ordinary means. This artistic feature must be capable of being visualized — either on paper or as a free-standing sculpture — as a work of authorship that is independent from the overall shape of the useful article. In other words, the feature must be imagined separately and independently from the useful article without destroying the basic shape of that article. A pictorial, graphic, or sculptural feature satisfies this requirement only if the artistic feature and the useful article could both exist side by side and be perceived as fully realized, separate works — one an artistic work and the other a useful article. For example, the carving on the back of a chair or an engraving on a vase would be considered conceptually separable, because one could imagine the carving or the engraving as a drawing on a piece of paper that is entirely distinct from the overall shape of the chair and the vase. Even if the carving or the engraving was removed the shape of the chair and the vase would remain unchanged, and both the chair and the vase would still be capable of serving a useful purpose. H.R. Rep. No. 94-1476, at 55 (1976), reprinted in 1976 U.S.C.C.A.N. at 5668-69.
Examples:
• Artwork printed on a t-shirt, beach towel, or carpet.
924.2(A)
Physical Separability
924.2(B)
Conceptual Separability
Chapter 900 : 40
12/22/2014
