2021 US Copyright Compendium Series #1: Works of Artistic Craftsmanship

A work of artistic Kat-manship

On January 28, the US Copyright Office released the latest version of the Compendium of US Copyright Office Practices, Third Edition. The Compendium details the general practices of the US Copyright Office concerning registration and recordation. Registration decisions by the Office are generally governed by the practices outlined in the Compendium.

Among the revisions in the latest version is an expansion of the "works of artistic craftsmanship" category. Although this category is present in the statutory definition of pictorial, sculptural, and graphic works, it received scant mention in the prior version of the Compendium. Let's explore the history of this category of work and the implications of its recent expansion in the Compendium.

Works of Artistic Craftsmanship

Though the Copyright Office only recently defined this category, the U.S. Supreme Court first addressed works of artistic craftsmanship in the 1954 case, Mazer v. Stein. In that case, the Court considered whether statuettes, which were made to serve as lamp bases, qualified as "works of art" so as to be subject to copyright protection. Looking to Copyright Regulations and historical registration practice, the Court ruled that the statuettes (and indeed, works of artistic craftsmanship) were works of art subject to copyright protection. While the Court's holding related to works of artistic craftsmanship, this holding would eventually prove the basis for the separability test that applies to designs of useful articles.

Works of art (Class G) -- (a) In General. This class includes works of artistic craftsmanship, in so far as their form but not their mechanical or utilitarian aspects are concerned, such as artistic jewelry, enamels, glassware, and tapestries, as well as all works belonging to the fine arts, such as paintings, drawings and sculpture. - 37 CFR, 1949, § 202.8, as cited in Mazer.

Section 101 of the Copyright Act, which provides the definitions applicable to the statute, reflects the Mazer decision regarding two different categories: works of artistic craftmanship and designs of useful articles. The 101 definition of pictorial, graphic, and sculptural works states that,

A Mazer v. Stein statuette

Such works shall include works of artistic craftsmanship insofar as 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.

Although the statute separately defines useful articles, works of artistic craftsmanship receives no further mention in the Copyright Act. In 2017, the U.S. Supreme Court revisited the Mazer decision in Star Athletica v. Varsity Brands, a case concerning designs of cheerleader uniforms. From the Mazer holding that works of artistic craftsmanship are protectable in form but not the mechanical or utilitarian aspects thereof, the Court determined the present separability analysis that applies to the designs of useful articles.

[A]n artistic feature of the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article.

2021 Compendium 

The 2017 Compendium, while providing a short list of examples of works of artistic craftsmanship ("jewelry, decorative vases, toys, piggybanks, dolls, stuffed toy animals, models") did not define works of artistic craftsmanship nor did it expand upon the place and role for this category in registration decisions. The 2021 Compendium looks to Star Athletica for a definition:

A work of artistic craftsmanship is a decorative or ornamental object that can be considered a “work of art,” even though it “might also serve a useful purpose.”

While there are clearly parallels between the design of a useful article and a work of artistic craftsmanship, each category is the functional inverse of the other. While a work of artistic craftsmanship may serve "primarily an ornamental, and incidentally a useful, purpose," a useful article is a work with an intrinsic utilitarian function. 

The relationship between works of artistic craftsmanship and the designs of useful articles is most clearly elucidated by the copyrightable authorship that is protected in regards to each category. Useful articles are not subject to copyright protection, but the design of such an article may be protected by copyright 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.” By contrast, a registered work of artistic craftsmanship is protected as a whole, but copyright does not "cover any of the mechanical or utilitarian aspects of the work."

Comment

This Kat is concerned that the expansion of the works of artistic craftsmanship category injects a potential avenue for confusion. The expansion of the category requires not only a new separability analysis to omit mechanical and utilitarian aspects of works of artistic craftsmanship, but also a prerequisite analysis to determine whether a work primarily serves an ornamental or a utilitarian purpose. The primary purpose analysis necessitates that the Office, and potentially courts, engage in the sort of aesthetic judgment that the Court deemed a "dangerous undertaking" in Bleistein v. Donaldson Lithographing. The confusion of this "dangerous undertaking" may be reduced, however, by the way in which the Copyright Office will address close cases; "if there is any doubt" as to which category applies, the Office will treat the work as a useful article.