I'm a Little Treepot: Conceptual Separability and Affording Copyright Protection to Useful Articles

To determine if a useful article generally ineligible for copyright protection has pictorial, graphic, or sculptural features that are copyrightable, the Copyright Act and the legislative intent expressed through the Act's legislative history require that those artistic features be identified separately and capable of existing independently of the utilitarian function of the work. If the artistic features are either physically or conceptually separable from the utilitarian function of the work, then they are copyrightable. However, determining if artistic features are conceptually separable from the utilitarian function of the work has proven to be extremely difficult. Since Mazer v. Stein, the U.S. Supreme Court's only decision in this area, courts and scholars have created more than eight different tests for conceptual separability. Some of these tests are entirely inconsistent with the Copyright Act and its purpose; others are overly abstract or difficult to apply; still others require judges to make subjective determinations of artistic worth. As a result, one court may find a work copyrightable, and another court may find the same work uncopyrightable depending on the test applied. To address these and other problems facing those seeking copyright protection for artistic features of useful articles, this Note proposes a test for conceptual separability that is based on an ordinary, reasonable observer standard and that provides factors to guide the fact finder's inquiry. This Note's proposed test for conceptual separability is whether an ordinary, reasonable observer can perceive aesthetic features separate from the article's utilitarian function. In performing this analysis, the factors that the fact finder may consider fall into three main categories: (1) objective indicia of public perception; (2) use of the work separate from function; and (3) marketability information. This suggested test is consistent with the Copyright Act, simplifies conceptual separability analysis, and provides much needed clarity for copyrightability in the area of useful articles. J.D. 2015, University of Florida Levin College of Law; B.S.E. 2012, Duke University. I would like to thank Professor Jeffrey L. Harrison at the University of Florida Levin College of Law for sparking my interest in copyright law and for his insightful comments and suggestions on drafts of this note. Thanks also to the student editors and staff of the Florida Law Review for their dedication and diligence. Finally, I would like to thank my parents for their encouragement of this project and all of my academic and legal endeavors. 1 Sahlsten: I'm a Little Treepot: Conceptual Separability and Affording Copyr Published by UF Law Scholarship Repository, 2016 942 FLORIDA LAW REVIEW [Vol. 67 INTRODUCTION 943 I. COPYRIGHT PROTECTION FOR USEFUL ARTICLES BEFORE THE 1976 COPYRIGHT ACT 945 A. The Copyright Act Broadening the Scope of Copyright Protection 945 B. Copyright Office Regulations The Slow Death of the "Fine Arts" Limitation 946 C. The Supreme Court Addresses Copyright of Artistic Designs in Useful Articles 947 D. Copyright Office Regulations Post Mazer Origins of the Separability Standard 948 II. CODIFYING THE SEPARABILITY STANDARD FOR COPYRIGHTABILITY OF USEFUL ARTICLES: THE 1976 COPYRIGHT ACT AND ITS LEGISLATIVE HISTORY 949 III. THE SECOND CIRCUIT CREATING TESTS FOR CONCEPTUAL SEPARABILITY AND EVOLVING TO THE BRANDIR TEST 952 A. Kieselstein Cord: The "Primary" Versus "Subsidiary" Standard 952 B. Barnhart: The "Wholly Unnecessary" and "Inextricably Intertwined" Standards 954 C. Judge Newman Dissenting in Barnhart: The Ordinary, Reasonable Beholder Standard 956 D. The Brandir Test: The Designer's Influence Standard 960 IV. OUTSIDE THE SECOND CIRCUIT A MULTITUDE OF TESTS CREATED BY COURTS AND SCHOLARS 963 A. Professor Goldstein's "Equally Useful" Test 964 B. The Seventh Circuit: Pivot Point A Hybrid of Second Circuit Approaches 965 C. Professor Nimmer's Marketability Standard 967 V. PROBLEMS WITH EXISTING TESTS FOR CONCEPTUAL SEPARABILITY 968 VI. PROPOSED TEST FOR CONCEPTUAL SEPARABILITY 971  975 2 Florida  [2016] Art. 18 http:/scholarship.law.ufl.edu/flr/vol67/iss2/18 2015]