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ses, because their form is not responsive to utilitarian demands. Although created specifically for use in lamps, their form reflects purely aesthetic visions.168

The notion of distinguishing applied art from industrial design by examining the extent to which utilitarian considerations influence artistic expression has rarely surfaced in the case law. A few decisions make passing reference to similar ideas,169 but the approach has never been used as a general model of the separability criterion. Yet no other model appears capable of successfully implementing the legislative decision to maintain unrestrained competition in the marketing of useful articles, subject only to an artist's exclusive rights in "incorporated" art.

A model emphasizing the influence of utilitarian factors frees the judicial analysis from its unfortunate fixation on appearance alone. If the ultimate aim is to distinguish applied art from industrial design, theories focusing only on appearances cannot achieve the desired end. It is the process more than the result that gives industrial design its distinctive character. Although the shape of an old-fashioned telephone, for example, would likely be excluded from copyright under any of the alternative interpretations of the separability test, what of the design of a pencil sharpener fashioned to present a similar appearance? The decision in Ted Arnold Ltd. v. Silvercraft Co. 170 to protect such a work may well be correct. Although

168. This is not to say that whenever the appearance of an article is determined by esthetic (as opposed to functional) considerations," H.R. REP. No. 1476, supra note 3, at 55, it is therefore copyrightable. Such a standard would permit protection for virtually the whole of industrial design, in clear contravention of the legislative intent. It is the fact that the form of the Mazer statu ettes is independent of their function, and thus unrelated to their utility, that "separates" it from the utilitarian aspects of the lamp.

169. In the case of costume jewelry, while the overall form is to some extent pre-determined by the use for which it is intended, the creator is free to express his idea of beauty in many ways. Unlike an automobile, a refrigerator or a gas range the design of a necklace or of a bracelet, may take as many forms as the ingenuity of the artist may conceive.

Trifari, Krussman & Fishel, Inc. v. Charel Co., 134 F. Supp. 551, 553 (S.D.N.Y. 1955) (copyright upheld in costume jewelry). "Plaintiff concedes that the dimensions it designed were limited by the dimensions of the pencil sharpener. But this does not mean that the antique telephone is merely utilitarian. There was still room here for considerable artistic expression." Ted Arnold Ltd. v. Silvercraft Co., 259 F. Supp. 733, 735-36 (S.D.N.Y. 1966) (copyright upheld in pencil sharpener casing). "The shapes of the toys and their dimensions and configurations also appear to have been dictated primarily by utilitarian considerations." Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905, 915 (2d Cir. 1980) (denying copyright in "sculpture" of mechanical games).

170. 259 F. Supp. 733 (S.D.N.Y. 1966).

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[Vol. 67:707 the appearance of the two products is similar, the creative process is not. In the context of a pencil sharpener, the form represents an essentially arbitrary conception responsive only to aesthetics.171

The perspective afforded by this suggested approach to the separability standard may explain the superficial appeal of many competing models. In some instances, for example, physical separability may underscore the unconstrained, artistic nature of a particular product feature. The ability to remove a hood ornament without affecting an automobile's performance evidences its purely aesthetic origins. Art equally divorced from utilitarian influence, however, may often escape such narrow vision. Two-dimensional graphic works are not in reality

171. Emphasis on the creative process has long been part of copyright law, particularly with respect to objects claiming protection by virtue of their status as "works of art" (now "pictorial, graphic, and sculptural works"). "It is not necessarily a work of art,' something displaying artistic merit, but it is 'objet d'art'-something upon which the labors of an artist as such have been employed." Pellegrini v. Allegrini, 2 F.2d 610, 611 (E.D. Pa. 1924).

The current Copyright Office regulations require that to be acceptable as a pictorial, graphic, or sculptural work, the work must embody some creative authorship in its delineation or form." 37 C.F.R. § 202.10(a) (1981). Although the process of industrial design is surely "creative" in a colloquial sense, the influence of nonaesthetic, functional considerations undermines the unfettered artistic creativity traditionally recognized by copyright. "That degree of creativity necessary to define objects as works of art is not supplied through innovations which are solely utilitarian or mechanical." Gardenia Flowers, Inc. v. Joseph Markovits, Inc., 280 F. Supp. 776, 781 (S.D.N.Y. 1968). "Illustrative of the requirement of minimal creativity are those cases which deny copyright protection to . . . forms of expression dictated solely by functional considerations." 1 M. NIMMER, supra note 83, § 2.01 [B] (footnotes omitted). The significance of artistic freedom in the creative process was recently emphasized in connection with a legislative attempt to include within the scope of copyright the patterns imprinted on integrated circuit chips.

The subcommittee should assure itself that-within the constraints of chip purpose and size—the designer's choice of a particular layout, and the representation of the designer's labors in the "photographic masks" and "imprinted patterns", is not dictated by the function to be performed by the chip and does represent a creative choice from among different possibilities. This standard is implicit in our assumption that the works to be protected are the result of "authorship."

Hearings on H.R. 1007 Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Comm. on the Judiciary, 96th Cong., 1st Sess. (1979) (testimony of Jon Baumgarten, General Counsel, Copyright Office), reprinted in 2 COPYRIGHT L. R£p. (CCH) ↑ 20,029, at 10.049 (1979). Although the outcome of the industrial design process may not be dictated by function, one could argue that the influence of nonaesthetic concerns does indeed undermine the artistic creativity that marks the work of the sculptor or painter. The requirement of creativity may thus lend further support to a distinction between those shapes and configurations that are responsive to function, and those aspects of useful articles that are independent of utilitarian considerations.

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physically detachable from the objects on which they appear. Three-dimensional shapes, whether coin banks,172 pajama bags,173 jewelry,174 or pencil sharpeners175 may also represent essentially arbitrary artistic conceptions, despite the absence of physical separability. Similarly, since utilitarian factors will significantly influence the overall shape of most useful articles,176 a general rule of exclusion such as that expounded in Esquire is not without justification, yet it too sweeps too broadly.177 Such draconian models can at best only approximate the distinctions pursued in the revision effort. Only direct reference to the legislative conceptions of "applied art" and "industrial design" embodied in the separability test can produce more discriminating results.

Emphasis on artistic independence has the additional advantage of neutralizing the arbitrary nature of the "useful article" characterization. The statutory category comprising articles "having an intrinsic utilitarian function" may yield too rich a harvest,178 but works at the margin will generally survive inspection in any event. When utility is peripheral, as in paperweights or bookends, form is generally not significantly constrained by function, and thus the work will retain protection regardless of its characterization.

Attention to functional influences on form and appearance may also alleviate the de facto discrimination against nonrepresentational art that has regrettably accompanied much of the current analysis. It is difficult to quarrel with

172. See, e.g., Goldman-Morgen, Inc. v. Dan Brechner & Co., Inc., 411 F. Supp. 382 (S.D.N.Y. 1976); Royalty Designs, Inc. v. Thrifticheck Serv. Corp., 204 F. Supp. 702 (S.D.N.Y. 1962).

173. See R. Dakin & Co. v. A & L Novelty Co., 444 F. Supp. 1080 (E.D.N.Y. 1978).

174. See, e.g., Boucher v. DuBoyes, Inc., 253 F.2d 948 (2d Cir.), cert. denied, 357 U.S. 936 (1958); Cynthia Designs, Inc. v. Robert Zentall, Inc., 416 F. Supp. 510 (S.D.N.Y. 1976); Trifari, Krussman & Fishel, Inc. v. B. Steinberg-Kaslo Co., 144 F. Supp. 577 (S.D.N.Y. 1956); Trifari, Krussman & Fishel, Inc. v. Charel Co., 134 F. Supp. 551 (S.D.N.Y. 1955).

175. See Ted Arnold Ltd. v. Silvercraft Co., 259 F. Supp. 733 (S.D.N.Y. 1966). 176. See, e.g., Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905, 913 (2d Cir. 1990) (shape of mechanical games not copyrightable); Eltra Corp. v. Ringer, 579 F.2d 294 297 (4th Cir. 1978) (typeface designs not copyrightable); Norris Indus. Corp. v. Int'l Tel. & Tel. Corp., 212 U.S.P.Q. (BNA) 754, 755-56 (N.D. Fla. 1981), affd. 696 F.2d 918 (11th Cir. 1983) (hubcaps not copyrightable); SCOA Indus., Inc. v. Famolare, Inc., 192 U.S.P.Q. (BNA) 216, 218 (S.D.N.Y. 1976) (shoe sole not copyrightable). Cf. Jack Odelman, Inc. v. Sonners & Gordon, Inc., 112 F. Supp. 187, 188-89 (S.D.N.Y. 1934) (copyright in drawing of dress gives no monopoly over the manufacture of the garment itself).

177. See supra notes 128-48 and accompanying text. 178. See supra notes 99-102 and accompanying text.

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[Vol. 67:707 Judge Gesell's observation in Esquire that copyrightability ought not depend on adherence to particular artistic visions or styles.179 There is no justification for limiting copyright to works reflecting aesthetic regimes in which the standard of merit is resemblance to external objects, while excluding those which seek virtue in the relationship of forms within the work itself. Yet, since the ordinary observer can more easily recognize a representational work that has been incorporated into a utilitarian object, emphasis on physical separability will frequently cause more abstract forms to be either overlooked or thought too "integrated" to satisfy the statutory requirement.180 The general exclusion of overall shapes has a similarly pernicious effect. To avoid a crass or tasteless appearance, a utilitarian article is more likely to be given an abstract rather than representational form, although either may be arbitrary with respect to the underlying utility.181 Thus a ban on copyright in overall shape will fall heavily on abstract forms, barring works whose origins may lie far from the practical influences of the design process. The discrimination is diminished, however, under a model that places direct emphasis on the relationship between form and function. The shape of a Mickey Mouse telephone is copyrightable because its form is independent of function. A telephone shape owing more to Arp, Brancusi, or Moore than Disney may be equally divorced from utilitarian influence. An abstract shape employed as a lamp base may embody an artistic conception as untainted by utilitarian concerns as the Mazer statuettes.182 In all instances, unless the legislative distinction between applied art and industrial design is ignored, copyrightability must turn on the extent to which the

179. 414 F. Supp. at 941.

180. The result does deny protection to designers who use modern three-dimensional abstract works artfully incorporated into a func tional object as an inseparable aspect of the article while granting it to those who attach their independent representational art, or even their trite gimmickry, to a useful object for purposes of enhancement.

. It is the originator's success in completely integrating the artistic designs and the functional aspects of the buckles that preclude copyright. Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989, 994 (2d Cir. 1980) (Weinstein, J., dissenting from decision to uphold copyright in belt buckles).

181. "We may concede, for present purposes, that an interpretation of § 202.10(c) that bars copyright for the overall design or configuration of a utilitarian object will have a disproportionate impact on designs that exhibit the characteristics of abstract sculpture." Esquire, Inc. v. Ringer, 591 F.2d 796, 805 (D.C. Cir. 1978), cert. denied, 440 U.S. 908 (1979).

182. Cf. L & L White Metal Casting Corp. v. Joseph, 387 F. Supp. 1349, 1354 (E.D.N.Y. 1975) (infringement of lamp base castings).

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work reflects either the independent perspective of the artist or the more integrated approach of the designer.

A model requiring assessments of artistic independence and utilitarian influence cannot offer the neat divisions promised by many of the alternative formulations. The distinctions drawn by current analysis, however, often prove illusory, or are maintained at too great a cost. The concepts of "applied art" and "industrial design" communicate the simple truth that some forms are more responsive to utility, and thus less the product of untrammeled aesthetic visions, than others. No mechanical test appears capable of capturing that relationship over a significant portion of the spectrum. Difficult judgments cannot be avoided, and only artificial divisions can succeed in making easy work of cases such as Esquire or KieselsteinCord.183

IV. CONCLUSIONS

When copyright in "pictorial, graphic, and sculptural works" ventures beyond the narrow confines of the "fine arts," the slope becomes slippery indeed. Current law expressly preserves exclusive rights in works of art applied to utilitarian ends, yet wisely endeavors to exclude the general design of commercial products. The distinction between copyrightable "applied art" and uncopyrightable "industrial design" has generally been pursued through mechanical models offering the seductive security of unbending rules and ostensibly objective

183. In Esquire, the Court of Appeals for the District of Columbia declined to venture beyond mechanical formulas. There was no attempt to assess the nature of the plaintiff's contribution. If its lighting fixtures had assumed the appearance of giant Balinese dancers, one can presume the cour. would have duly noted their conceptual independence. That the plaintiff chose a less horrific form does not exclude the possibility of a similarly untainted artistic conception. The task of judging the extent to which Esquire's forms reflect aesthetic decisions unrelated to function may be an unenviable one, but the legislative distinction between applied art and industrial design requires it. If the Esquire decision is correct, the credit is to chance rather than reason.

The Second Circuit's examination of Kieselstein-Cord's belt buckles is more promising. Although unable to articulate a coherent rationale for its conclusion that the sculptural designs were conceptually separable from the utili tarian aspects of the works, the court did not retreat to stock alternatives. Its intuition, and that of the Copyright Office which granted registration, appears well founded. Although clearly constrained in some respects by functional necessities, the buckles' overall shapes appear largely devoid of utilitarian influence, reflecting instead the purely aesthetic judgments of their creator. See, e.g., Trans-World Mig. Corp. v. Al Nyman & Sons, Inc., 95 F.RD. 95 (D. Del. 1932) (expressing willingness to inquire into the conceptual separability of the shape of eyeglass display cases).

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