• A colorful pattern decorating the surface of a shopping bag.
• A drawing on the surface of wallpaper.
• A floral relief decorating the handle of a spoon.
Merely analogizing the general shape of a useful article to a work of modern sculpture or an abstract sculpture does not satisfy the conceptual separability test, because it does not provide an objective basis for visualizing the artistic features and the useful article as separate and independent works. See Esquire, Inc. v. Ringer, 591 F.2d 796, 804 (1978) (D.C. Cir. 1978) (agreeing with the Office's determination that "the overall design or configuration of a utilitarian object, even if it is determined by aesthetic as well as functional considerations , is not eligible for copyright"); see also Inhale, Inc. v. Starbuzz Tobacco, Inc., 739 F.3d 446, 449 (9th Cir. 2014) (finding that the Office's interpretation of conceptual separability is entitled to deference, stating that "[c]ourts have twisted themselves into knots trying to create a test to effectively ascertain whether the artistic aspects of a useful article can be identified separately from and exist independently of the article's utilitarian function").
The fact that a useful article could have been designed differently or the fact that an artistic feature is not necessary to or dictated by the utilitarian aspects of that article is irrelevant to this analysis. If the feature is an integral part of the overall shape or contour of the useful article, that feature cannot be considered conceptually separable because removing it would destroy the basic shape of the useful article. See generally H.R. Rep. No. 94-1476, at 55 (1976), reprinted in 1976 U.S.C.C.A.N. at 5668-69.
924.2(C) Factors Not Relevant in Evaluating Separability
In assessing whether certain elements are physically or conceptually separable from the utilitarian functions of a useful article, registration specialists do not consider the following: (i) the aesthetic value of the design; (ii) the fact that the article could have been designed differently; or (iii) the amount of effort or expense that went into the making of the design. H.R. Rep. No. 94-1476, at 55 (1976), reprinted in 1976 U.S.C.CA.N. at 5668-69.
924.3 Specific Types of Useful Articles
924.3(A) Clothing Designs
Clothing such as shirts, dresses, pants, coats, shoes, and outerwear are not eligible for copyright protection because they are considered useful articles. This is because clothing provides utilitarian functions, such as warmth, protection, and modesty. As a result, the U.S. Copyright Office will not register a claim in clothing or clothing designs. See Registrability of Costume Designs, 56 Fed. Reg. 56,530, 56,531 (Nov. 5, 1991).
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