Copyright is a form of intellectual property that gives the author of an original work exclusive right for a certain time period in relation to that work. Copyright protection is available for various kinds of work including literary, musical, choreographic, dramatic, pictorial, graphic, and sculptural works etc. Pictorial, graphic, and sculptural works include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Copyright protects only the form of the work and not the mechanical or utilitarian aspects of the work. Therefore the design of a useful article shall be considered a pictoral, graphic, or scriptural work only if, and only to the extent that such design incorporates pictoral, graphic, or scriptural features that can be identified separately from and are capable of existing independently from the article.
Under Section 101 of the 1976 Copyright Act, pictorial, graphic, and sculptural works include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans.
A significant number of works distributed across the Internet are pictorial and graphic works. A work of art which is incorporated into the design of a useful article, but which can stand by itself as art work separate from the useful article, is copyrightable, but the design of the useful article is not.
Section 113 deals with the extent of copyright protection in “works of applied art.” The section takes as its starting point the Supreme Court’s decision in Mazer v. Stein[i], that copyright in a pictorial, graphic, or sculptural work will not be affected if the work is employed as the design of a useful article, and will afford protection to the copyright owner against the unauthorized reproduction of his work in useful as well as nonuseful articles.
The broad language used in various sections of the Copyright Act raises questions as to the extent of copyright protection for a pictorial, graphic, or sculptural work that portrays, depicts, or represents an image of a useful article in such a way that the utilitarian nature of the article can be seen. This confusion gave rise to the question as to whether copyright in a drawing or model of an automobile gives the artist the exclusive right to make automobiles of the same design.
The 1961 Report of the Register of Copyrights after considering this point stated that copyright in a pictorial, graphic, or sculptural work, portraying a useful article as such, does not extend to the manufacture of the useful article itself. The Report therefore recommended that the distinctions drawn in this area by existing court decisions should not be altered by the statute. The Register’s Supplementary Report also stated about the need of finding statutory formulation that would express the distinction satisfactorily. Section 113 (b) reflects the Register’s conclusion that “the real need is to make clear that there is no intention to change the present law with respect to the scope of protection in a work portraying a useful article as such.”
Section 113 (c) provides that it would not be an infringement of copyright, where a copyright work has been lawfully published as the design of useful articles, to make, distribute or display pictures of the articles in advertising, in feature stories about the articles, or in the news reports.
Pictorial, graphic and sculptural work encompasses everything from sculptures and paintings to less conventional items like mannequins and decorative belt buckles. As with other works of art, the required level of creativity is minimal, so this also includes everything from realistic photographs to drawings and renditions of a product. However, unlike other works of art that are entitled to copyright protection, there is an important limitation to this category. In case of pictorial, graphic and sculptural work, the Copyright Act notes that the utilitarian aspects of such works cannot be protected – thus, the design of a useful object cannot generally be protected. So even if there is artistic creativity in a work, the work is protected by copyright only if the design incorporates some pictorial, graphic or sculptural work and if that work is separable and capable of independently existing from the useful object.
[i] 347 U.S. 201 (1954)