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2006:1067 Stealing Beauty 1081
difficulties, Congress codified the current doctrine of conceptual
separability in 1976, 95 which provides protection for both physically and
conceptually separable components, 96 and no longer requires that an item
be solely utilitarian to be protected. 97
Despite this clarification, courts have struggled in developing a
uniform test for determining whether the aesthetic parts of an item are
separable from the utilitarian parts. Generally, courts have been willing
to extend copyright protection to works of applied art, 98 which
incorporate the independent artistic vision of the designer, but have often
refused to extend copyright protection to works of industrial design,
utilitarian function could be copyrighted despite the fact that the artistic attributes of the
item could not be separated from the item as a whole. Id. Case law is filled with cases
just like this. For example, in Royalty Designs, Inc. v. Thrifticheck Service Corp., the
plaintiff held copyrights for children’s coin banks molded in the shape of dogs. 204 F.
Supp. 702, 703 (S.D.N.Y. 1962). The court upheld the copyright issued to the plaintiff
because the coin banks were simultaneously useful articles and works of art, and thus not
solely utilitarian in their function. See id. at 704; see also Goldman-Morgen, Inc. v. Dan
Brechner & Co., 411 F. Supp. 382, 388 (S.D.N.Y. 1976) (holding that the plug on a
novelty coin bank was copyrightable despite the plug’s utilitarian use). Thus, while the
doctrine was readily applicable to situations like Mazer, where there is no ambiguity
concerning the purpose of an item, courts have faltered when they could not immediately
determine whether or not the item’s function was solely utilitarian.
95. See 17 U.S.C. § 101 (2000).
96. Although the statute codifies what is known as the doctrine of conceptual
separability, it incorporates physical separability as well, if only because physical
separability is so much easier to determine than conceptual separability. See Polakovic,
supra note 78, at 874 (“In instances when one can actually remove—or, in the vernacular
of copyright analysis, physically separate—an artistic element from a useful article
without also removing the article’s intrinsic utilitarian function, this is a relatively simple
process.”). If the attributes are physically separable, a court does not need to determine
whether the attributes are also conceptually separable. Id. Understandably, then,
physical separability cases are therefore much easier resolved than conceptual
separability cases.
97. Fabrica, 697 F.2d at 893.
98. What constitutes applied art can be a tricky question. There is no dispute
that any item of fine art (paintings, sculptures, etc.) counts as applied art. However,
courts are usually reluctant to put themselves in the position of art connoisseurs. See,
e.g., Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903) (“It would be a
dangerous undertaking for persons trained only in the law to constitute themselves final
judges of the worth of pictorial illustrations . . . .”); Martin v. City of Indianapolis, 192
F.3d 608, 610 (7th Cir. 1999) (“We are not art critics, [and we] do not pretend to
be . . . .”). In spite of this fact (or perhaps because of it), courts have since categorized a
wide array of objects as art. See, e.g., Masquerade Novelty v. Unique Indus., 912 F.2d
663 (3rd Cir. 1990) (classifying animal nose masks as works of art); Celebration Int’l v.
Chosun Int’l, 234 F. Supp. 2d 905 (S.D. Ind. 2002) (classifying the mask of a tiger
costume as a work of art).