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ARTICLE · 28 APRIL 2017

Separating Art from Function: Supreme Court Creates Copyright Test for Designs

Holland & Knight
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A landmark Supreme Court decision, holding that artistic elements incorporated into useful article may be entitled to copyright protection, opens the door to copyright protection for designs traditionally limited to other avenues of protection.

United StatesIntellectual Property
Stacey Wang
Stacey Wang
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Stacey H. Wang is a Partner in Holland & Knight's Los Angeles office
Jacqueline Win is an Associate in Holland & Knight's San Francisco office
Jane Marie Russell is an Associate in Holland & Knight's Miami office

HIGHLIGHTS:

  • A landmark Supreme Court decision, holding that artistic elements incorporated into useful article – such as clothing – may be entitled to copyright protection, opens the door to copyright protection for designs traditionally limited to other avenues of protection, such as trade dress or design patents.
  • The Supreme Court set forth a two-part "separability" test to determine whether artistic elements in a functional article can be copyright protected: 1) the artistic elements must be separately identifiable, i.e., it has a "two- or three-dimensional element that appears to have pictorial, graphic, or sculptural qualities"; and 2) the artistic elements can be "identified and imagined" apart from the useful article, such as on a piece

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