Page:US Copyright Office Policy Decision on Registrability of Costume designs, (ML-435).pdf/1



from the Copyright Office, Library of Congress, Washington, D.C. 20559

POLICY DECISION

REGISTRABILITY OF COSTUME DESIGNS

The following excerpt is taken from Volume 56, Number 214 of the for Tuesday, November 5,1991 (p. 56530)

LIBRARY OF CONGRESS

Copyright Office

[Docket No. RM 91-5A]

Reglstrablllty of Costume Designs.

AGENCY: Copyright Office. library of Congress.

ACTION: Policy Decision.

SUMMARY: The Copyright Office of the Library of Congress issues this Policy Decision clarifying its practices regarding the registrability of masks and costume designs. Under the adopted practices, masks will be registrable on the basis of pictorial and/or sculptural authorship. Costumes will be treated as useful articles, and will be registrable only upon a finding of separable artistic authorship.

FOR FURTHER INFORMATION CONTACT: Dorothy Schrader. General Counsel, U.S. Copyright Office, Library of Congress. Washington, DC 20559; (202) 707-8380.

SUPPLEMENTARY INFORMATION:

1. Background

Works subject to copyright protection may secure copyright registration in the Copyright Office. Copyright Act of 1976 title 17. U.S.C. sections 408-412. Determining the registrability of masks and costumes requires the application of the definitions of 'pictorial, graphic end sculptural works" and "useful article." a s set out in section 101 of title 17. These definitions are as follows:

"Pictorial, graphic and sculptural works" include two-dimensional and three-dimensional works of fine. graphic and applied art. photographs. prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plane. Such works shall include works of artistic craftsmanship insofar an their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that such design incorporates pictorial, graphic, or sculptural features that can be identified separately from and are capable of existing independently of the utilitarian aspects of the article.

A "useful article" in an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a "useful article."

The House judiciary Committee Report accompanying the 1976 Copyright Act explained that through the above definitions Congress sought to "draw a clear a line as possible between copyrightable works of applied art and uncopyrightable works of industrial design." H.R Rep. No. 1478, 94th Cong. 2d Sees. 55 [1976]. The report provided further guidance as follows:

A two-dimensional painting drawing, or graphic work is still capable of being identified as such when it is printed on or applied to utilitarian articles such as textile fabric, wallpaper, containers, and the like. The name is true when a statue or carving is used to embellish an industrial product or, as in the Mazer case. Ir incorporated into a product without losing its ability to exist independently as a work of art. On the other hand although the shape of an industrial product may be aesthetically satisfying and valuable, the Committee's intention in not to offer it copyright protection under the bill. Unless the shape of an automobile, airplane, ladies' dress, food processor, television set or any other industrial product contains some element that, physically or conceptually, can be identified as separable from the utilitarian aspects of that article, the design would not be copyrighted under the bill. The test of separability and independence from "the utilitarian aspects of the article" does not depend upon the nature of the design—that in. even if the appearance of an article is determined by esthetic (as opposed to functional) considerations, only elements, if any, which can be identified separately from the useful article as such are copyrightable." Id.[Emphasis added].

The Copyright Office has generally refused to register claims to copyright in three-dimensional aspects of clothing or costume design on the ground that articles of clothing and costumes are useful articles that ordinarily contain no artistic authorship separable from their overall utilitarian shape. A two-dimensional design applied to the surface of the clothing may be registered but this claim to copyright is generally made by the fabric producer rather than the garment or costume designer. Moreover, this claim to copyright is ordinarily made when the two-dimensional design is applied to the textile fabric and before the garment is cut from the fabric.

The 1976 House Report confirms that "ladies' dress" and other clothing cannot be protected by copyright merely on the ground that the appearance of the useful article is determined by aesthetic considerations. Over the last few years, however, the Office registered a few narrowly drawn claims in certain three-dimensional fanciful or animal shaped items that can be worn. Some of these claims have been the subject of litigation.

2. Litigation

In general, cases have not treated masks as useful articles. and, as a result,