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In its 1976 revision of the Copyright Act, Congress decided to separate applied art from industrial design, admitting the former to copyright and excluding the latter. It drew this distinction precisely because it intended to differentiate copyright from design and utility patent. Congress recognized as applied art only those aesthetic features of a useful article that could be “separated” from that useful article rather than being integrated into the article.

The correct test of separability therefore considers conceptual separability to be nothing more than a coda to physical separability, and asks only whether the claimed design could be removed from the article and exist on its own as a pictorial, graphic or sculptural work that is not a useful article. This test minimizes the need for courts to make judgments about the aesthetic value of claimed features and the risk of anticompetitive strike suits. And it preserves the distinction Congress meant to draw between applied art and industrial design.


Mark P. McKenna & Katherine J. Strandburg, Progress & Competition in Design, 17 STAN. TECH. L. REV. 1 (2013)