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1080 WISCONSIN LAW REVIEW
copyright protection, 87 it made no efforts to describe what the
qualifications for copyright eligibility were. 88 In response to this
ambiguity, Congress passed copyright regulations requiring that artistic
elements of an item be separable from its utilitarian aspects to receive
copyright protection. 89 Under these regulations, if the sole function of an
item was its utility, then it could not be copyrighted. 90 However, if the
shape of a utilitarian article incorporated features such as artistic
sculpture, carving, or pictorial representation, which could be identified
separately and were capable of existing independently as a work of art,
such features would classify the object as a “work of art,” a category
eligible for copyright protection. 91 This legislation attempted to
accommodate the general rule presented by Mazer while excluding the
realm of industrial design (which is arguably protected better by
patents). 92
These regulations, however, were very difficult to apply for two
reasons. First of all, it was unclear whether Congress intended the
regulations to require physical separability or merely conceptual
separability. 93 More importantly, courts had a difficult time determining
whether an item’s sole function was utilitarian. 94 Because of these
87. See id. (“We find nothing in the copyright statute to support the argument
that the intended use or use in industry of an article eligible for copyright bars or
invalidates its registration. We do not read such a limitation into the copyright law.”).
88. See Denicola, supra note 58, at 713. Denicola aptly describes the
incompleteness of the Mazer decision:
Mazer answered one question, yet wisely eschewed another. The use to
which “works of art” are put is irrelevant, the Court declared, but the bounds
of that statutory classification remained uncertain. A dancing figure
qualified, but the Court had said nothing of the forms displayed by toasters or
automobiles, or the designs of wedding gowns or belt buckles.
Id. at 712.
89. See Polakovic, supra note 78, at 874.
90. 37 C.F.R. § 202.10(c) (1959) (repealed 1978).
91. Id.
92. See Denicola, supra note 58, at 715. Opponents of granting copyright
protection to industrial design claim that, because industrial designs are motivated
primarily by functional concerns and efficiency, it is more likely that there are fewer
practical ways to design an item. See id. at 723-26. As a result, copyright holders would
have unfair monopolies if their industrial designs were copyrightable. Id.
93. See, e.g., Esquire, Inc. v. Ringer, 591 F.2d 796 (D.C. Cir. 1978) (denying
copyright protection under the former legislation to lighting fixtures, even though their
design was conceptually separable from the fixture’s function).
94. See, e.g., Fabrica, Inc. v. El Dorado Corp., 697 F.2d 890, 893 (9th Cir.
1983). The sole function clause was highly problematic. Since the regulations did not
consider whether an artistic aspect of a useful article could exist independently of the
larger item, a wholly utilitarian item with artistic attributes capable of existing
independently of the item could not be copyrighted, whereas an item with only a partially