Page:Copyright Law Revision (Senate Report No. 94-473).djvu/87

 of his work in useful as well as nonuseful articles. The term “useful article” is defined in section 113(e) as “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.”

The broad language of section 106(1) and of the first sentence of section 113 raises questions as to the extent of copyright protection for a pictorial, graphic, or sculptural work that portrays, depicts, or represents an image of a useful article in such a way that the utilitarian nature of the article can be seen. To take the example usually cited, would copyright in a drawing or model of an automobile give the artist the exclusive right to make automobiles of the same design?

The 1961 Report of the Register of Copyright stated, on the basis of judicial precedent, that “copyright in a pictorial, graphic, or sculptural work, portraying a useful article as such, does not extend to the manufacture of the useful article itself,” and recommended specifically that “the distinctions drawn in this area by existing court decisions” not be altered by the statute. The Register’s Supplementary Report, at page 48, cited a number of these decisions, and explained the insuperable difficulty of finding “any statutory formulation that would express the distinction satisfactorily.” The committee adopts the Register’s conclusion that “the real need is to make clear that there is no intention to change the present law with respect to the scope of protection in a work portraying a useful article as such.”

Clause (2) of section 113(a) provides that it would not be an infringement of copyright, where a copyright work has been lawfully published as the design of useful articles, to make, distribute or display pictures of the articles in advertising, in feature stories about the articles, or in the news reports.

Subsections (b), (c), and (d) were inserted in section 113 because of the incorporation in this legislation of title II relating to protection of ornamental designs of useful articles. Subsection (b) provides that when a pictorial, graphic, or sculptural work in which copyright subsists under title I of this bill is utilized in an original ornamental design of a useful article, the design shall be eligible for protection under the provisions of title II of this bill.

Subsection (c) provides that protection of a work in which copyright subsists under title I shall terminate with respect to its utilization in useful articles whenever the copyright proprietor has obtained registration on an ornamental design of a useful article under the provisions of title II. This provision makes explicit that nothing in this section shall be deemed to create any additional rights or protection under title I of this bill.

Subsection (c) is a saving clause to the effect that nothing in this section shall affect any right or remedy held by any person under title I in a work in which copyright was subsisting on the effective date of title II or with respect to any utilization of a copyrighted work other than in the design of a useful article.

Subsection (a) of Section 114 specifies that the exclusive rights of the owner of copyright in a sound recording are limited to the rights