Pictorial, Graphic, and Sculptural Works

• Author: Robert A. Gorman
• Profession: University of Virginia School of Law
• Pages: 28

One of the categories of copyrightable works in section 102 is "pictorial, graphic, and sculptural works." The same requirement of original authorship obtains for artistic works as for literary works, and in neither case does it import any standard of aesthetic merit or appeal. Indeed, it would seem that artworks are even more readily copyrightable than literary works, because reproductions of art (e.g., the amateur artist working with palette and easel in front of an old master in the art museum) will almost inevitably have sufficient elements of individuality and personality to warrant protection as copyrightable derivative works,[55] while reproductions of literary text will not. Copyright has been sustained, for example, in a straightforward rendering of a slice of chocolate cake, designed for use on a cake wrapper.[56] It has, in fact, been held that the common snapshot or home motion picture film is eligible for copyright, given the photographer's judgment regarding angle, placement, shading, timing and the like.[57] The law does, Iowever, require some very modest level of what might be called creativity in works in order to merit copyriglt, and this is as true of pictorial, graphic, and sculptural (PGS) works as of other kinds.

Thus, section 202.1(a) of the Copyright Office regulations excludes from copyright "familiar symbols or designs" and "mere variations of typographic ornamentation, lettering or coloring." Courts have denied copy- i, right to a cardboard display stand in the shape of a circle within a fivepointed star,[58] to a small number of repeated angular lines (evoking arrowheads) in a sports-team logo,[59] and to variations in color choices for map territories.[60] "Colorized" motion picture films originally made in black and white have, however, been declared by the Copyright Office generally to contain enough original authorship in color selection to warrant treatment as separately copyrightable derivative works.[61]

Useful articles

Perhaps the most difficult issue that arises regarding the copyrightability of pictorial, graphic, and sculptural works concerns those works, typically "sculptural," that serve useful functions, such as furniture, garments and architecture. The pertinent law begins with an important Supreme Court decision, moves through some not altogether clear provisions of the 1976 Act, and continues today in a number of court decisions S applying the statute in an inconsistent and uncertain manner.

Until 1954, when the Supreme Court decided Mazer v. Stein,[62] it was S widely assumed that protection for the design of useful articles had to be secured through the design patent law-which required that the design be "novel" and "unobvious"-and that copyright protection was not available. In Mazer, the Court held that copyright protection could be extended to sculptural figures that were used as bases for lamps. The Court stated that, so long as the statutes embodied originality, copyright was not displaced by virtue of the potential availability of design patent protection or by the fact that the design was embodied in a useful article that was mass-produced and merchandised commercially. Since the Mazer decision, the Copyright Office has registered many ornamentally shaped useful articles. Section 113(a) of the Copyright Act now provides that the copyright in a PGS work "includes the right to reproduce the work in or on any kind...