Copyright Cases Visual Artists Should Know: Part 1, Copyrightability
What do Andy Warhol’s Campbell’s Soup Cans, Yayoi Kusama’s Pumpkin, and David Hockney’s Portrait of an Artist (Pool with Two Figures) have in common? You guessed it—they are works of visual art, a type of art that runs the gamut of paintings, sculptures, photographs, and even architectural styles. (For more information on photography cases in particular, check out our blog post on photography cases photographers should know.) The visual art form constitutes one of many types of works that are protected under the Copyright Act and have been the subject of several high-profile copyright cases that have been instrumental in defining our copyright laws today. Presented below is a selection of copyright cases visual artists should be aware of, as well as tangible takeaways from each, focusing on the issues of copyrightability.
Protectable Expression versus Non-Protectable Elements
Copyright protection hinges on two requirements: (1) fixation in a tangible medium and (2) originality, meaning a work must be minimally creative. The minimal creativity threshold to fulfill copyright’s originality requirement is very low, as discussed in our FAQ answer. However, there are additional contours on what constitutes protectable elements as illustrated in several copyright cases that visual artists in the fine arts should be mindful of.
Facts and Ideas are Not Protected by Copyright
A crucial principle that visual artists should know is that copyright law protects the expression of ideas, facts, or commonplace elements, but not the ideas, facts, or commonplace elements themselves. In the visual arts, there are many times when common or natural elements are utilized in the creation of a visual art piece. However, the Copyright Act does not protect things like common geometric shapes (e.g., circles, ovals, spheres, triangles, etc.), mere variations on familiar symbols/designs, mere coloration or variations in colors, typeface or lettering, or naturally occurring/discovered material (e.g., finding a rock, polishing it, and mounting it on a stand will not be protectable). But what copyright law does protect, is the expression of those non-protectable elements. These distinctions are explained in certain copyright law doctrines, like the idea-expression dichotomy, merger doctrine, and the scènes à faire doctrine.
Copyrightability issues were illustrated in the case Satava v. Lowry. In that case, the Ninth Circuit Court of Appeals disagreed with the claims of a successful sculptor, Satava, who argued that his depiction of a jellyfish “with tendril-like tentacles or rounded bells,” in “bright colors,” or “swimming vertically” was protected by copyright law. The court held that these elements were instead typical qualities of jellyfishes found in nature and lacked sufficient originality to warrant copyright protection.
The court also discussed how the idea of producing a glass-in-glass jellyfish sculpture gave rise to only a few variations of expressions that would naturally follow from such a sculpture, like how it was natural for the depicted “jellyfish [to] “almost fill[] the entire volume” of the outer glass shroud, because such proportion is standard in glass-in-glass sculpture.” Where there are only a few ways to express a particular idea, here, being “clear glass [as] the most appropriate setting for an aquatic animal” and sculptures filling the glass as “standard,” the idea and expression merged, such that those expressions were not protectable.
At the same time, the court did note several elements in which Satava “made some copyrightable contributions: the distinctive curls of particular tendrils; the arrangement of certain hues; the unique shape of jellyfishes’ bells.” In doing so, the court recognized that a depiction of a natural object or fact may express the requisite minimal creativity for copyright protection. And despite holding “thin copyright protection” for Satava’s jellyfish sculptures, the court further noted that “a combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.”
Visual artists should be mindful of the distinction between (protectable) expressions of ideas and (unprotectable) ideas, facts, or commonplace elements themselves. Copyright law does not protect naturally occurring, common, or “standard” elements in works of visual art, but it will protect a visual artist’s own depiction and expression of those unprotectable elements or a visual artist’s particular arrangement, selection, coordination of such elements.
Useful Articles/Utilitarian Elements Not Protected by Copyright
Visual artists should also be mindful of when their creations may be considered to be part of a “useful article.” Copyright law defines “useful articles” as those which have an intrinsic utilitarian function that is not merely to portray the appearance of the article or convey information—like clothing or furniture. Copyright law protects useful works to the extent the designs of a useful article can be identified separately from the article and are capable of existing independently of the utilitarian aspects of the work.
Thus, a useful article may have both copyrightable and uncopyrightable features. For example, a carving on the back of a chair or a floral design on flatware are creative expressions which can be protected by copyright, but the utilitarian design of the chair (its three or four legs) or flatware (the prongs of a fork or the concave shape of a spoon) themselves would not be protectable because these designs are part of the objects’ functionality rather than a portrayal of original, creative expression— e.g., the legs hold the chair upright, and the flatware designs help with picking up food.
This limitation, and its related two-part separability test, was illustrated in the Supreme Court case of Star Athletica v. Varsity Brands, Inc. Varsity Brands had designed and sold cheerleading uniforms and secured over 200 U.S. copyright registrations for two-dimensional designs appearing on their uniforms, which included “combinations, positionings, and arrangements of elements” like “chevrons . . . lines, curves, stripes, angles, diagonals, . . . coloring, and shapes.” Star Athletica had also marketed and sold similar-looking cheerleading uniforms, so Varsity Brands sued for copyright infringement.
In determining the copyrightability of the disputed designs, the Court cited to Mazer v. Stein, a case in which it found that respondents’ statuette that was designed as part of a lamp base was copyrightable. Using the Mazer case, the Court reaffirmed the principle that “[i]f a design would have been copyrightable as a standalone pictorial, graphic, or sculptural work [PGS], it is copyrightable if created first as part of a useful article.”
Accordingly, the Court found that the designs of the cheerleading uniforms satisfied both prongs of the separability test because the decorations could be identified as having their own PGS qualities, and they would be copyrightable on their own if separated from the uniforms as two-dimensional artwork. For example, the Court explained that if the surface designs/decorations had been separated from the uniform and “applied in another medium—for example, on a painter’s canvas—they would qualify as ‘two-dimensional . . . works of . . . art’” and thus, be eligible for copyright protection.
Visual artists should keep in mind that when their works of visual art contain design elements that are mechanical or utilitarian and which cannot stand on their own as a copyrightable work, then these elements will not be protected by copyright.
Conclusion
Copyrightability is a concept that touches upon all original works of creative expression, and as discussed previously, has been illustrated in the several copyright cases that visual artists should know that we discussed in this blog. Using these cases as guidelines, visual artists can be aware of what may affect and limit the extent to which their expressions are protectable. Stay tuned for the part 2 in this blog series which will discuss copyright cases that visual artists should know about, focusing on copyright authorship.
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