Many creative businesses seek copyright protection for useful articles. By “useful articles”, we are talking about things like: clothes, furniture, candlesticks, baseball bats, blenders, doors, etc. But people are often dismayed to find out that useful articles are often not protectable by copyright law. But that’s not the end of the story – by understanding what copyright law protects and doesn’t, any creative business owner can design useful articles in a way that could enhance the protection that they receive.
Copyright Protection for Useful Articles
Copyright protection for useful articles (or “utilitarian objects” or similar) is not really available. Things like this are typically covered by patent law rather than copyright law. However, creative works that are part of the a useful article might be the subject of copyright law. Keep in mind that copyright law will only protect certain types of works.
The key distinction is whether or not the the creative work can be separated from the utilitarian object. And the dividing line is not always neat. For instance, in the case Inhale, Inc. v. Starbuzz Tobacco, Inc., the Ninth Circuit found that the sculptural shape of a hookah was not separable from the functional features of the hookah, and not properly the subject of copyright law. Naturally, the determination for any given case is going to vary depending upon the facts, so I offer this strictly as an example of how a court might approach the issue.
How Can Creators Think About Copyright Protection of Useful Articles?
I speak with many creative business owners who seek copyright protection for something new and innovative that they have created. This is the right move, but sometimes I have to break the bad news to them that they might have a hard time actually registering a copyright in something like a lighting fixture or a bicycle. Not always, but often.
Whole industries struggle with this issue. The fashion industry is notorious for the proliferation of knockoff products. These knockoffs exist because things like shirts, dresses, pants, etc. are considered to be utilitarian objects and thus not subject to copyright.
So what’s the solution?
There are two ways to look at this: (a) creators can protect their products through strong branding – even if copyright protection may not apply, trademark law can protect ones brand (that’s why fashion houses spend so much time and money policing their brands and prosecuting knockoff artists); and/or (b) create separable creative works that can be protected by copyright law and then apply those to the useful object.
So that means that if you are designing a shirt, you might have graphics that you create independently of the shirt and then silkscreen to the clothing. While the shirt will not be protected, the graphics applied to the shirt would potentially be protected. And as such, the creators is able to enforce their rights there.
