Copyrights I MARCH 1, 2016

Can Three-Dimensional Craftsmanship be Protected by a Copyright?

Three-dimensional sculptural man with beard

Suppose that you create a unique three-dimensional display. You find out that your competitor has copied your three-dimensional display. Can you claim that the design of the display is a three-dimensional work of artistic craftsmanship to apply for a copyright registration to enforce against your competitor? The answer may be YES!

Under 17 U.S.C. § 101, 'pictorial, graphic, and sculptural works' include three-dimensional works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects. The design of a useful article shall be considered a 'pictorial, graphic, and 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.

The Supreme Court in Mazer v. Stein, 347 U.S. 201, 100 U.S.P.Q. 325 (1954) held that the successive Acts, the legislative history of the 1909 Copyright Act, and the practice of the Copyright Office united to show that 'works of art' and 'reproductions of works of art' are terms that were intended by Congress to include authority to copyright statuettes intended primarily for use in the form of lamp bases to be made and sold in a quantity. See also Copyright Office, Compendium II of Copyright Office Practices§ 505.03 (1984) (recognizing that a 'carving on the back of a chair, or pictorial matter engraved on a glass vase, could be considered for [copyright] registration' on the basis of separability).

For example, the designs on cheerleading uniforms were recently upheld as copyrightable. In Varsity Brands, Inc. vs. Star Atheltica LLC., No. 14-5237 (6th Cir. Aug. 19, 2015), the Sixth Circuit held that '[I]t is well-established that fabric designs are eligible for copyright protection. (citation omitted) We therefore conclude that a pictorial, graphic, or sculptural work's 'decorative function' does not render it unable to 'be identified separately from,' or [in] capable of existing independently of, the utilitarian aspects of the article.' Based on this holding, the designs on the cheerleading uniforms created by Varsity Brands were held copyrightable to the extent that they were separated either physically or conceptually from the uniforms and were capable of existing independently.

Further, decorative designs on flooring have been held to be entitled to copyright protection. In Home Legend, LLC v. Mannington Mills, Inc., No. 14-13440 (11th Cir. Apr. 29, 2015), the Eleventh Circuit reversed a grant of summary judgment and held that a two dimensional laminate flooring design was eligible for copyright protection because it reflected sufficient creativity, was severabable from the flooring to which it was applied, and was directed at a design.

Let's assume that the display has walls, columns, and platforms and materials arranged on these walls, columns, and platforms.