In a recent decision, the Review Board of the United States Copyright Office (“Board”) reversed an examiner’s prior refusal to register a copyright in the artistic elements present in the bed shown above, paving the way for the applicant to obtain a copyright registration in this work.

Copyright law does not protect useful articles per se (i.e., articles having a useful function that does not serve merely to portray the appearance of the article or to convey information), but does protect any artistic feature that is applied to or incorporated in a useful article, if the feature: “(1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated.”  Star Athletica, LLC v. Varsity Brands, Inc., 137 S. Ct 1002, 1007 (2017).

In its decision here, the Board first determined that the artistic work contained sufficient “separable and creative authorship” in the headboard and front drawer designs, which “can be perceived as two- or three- dimensional works of art separate from the useful article” and “are not useful but instead serve as pure ornamentation.”  Second, the Board determined that the separable portions of the design, in combination, met the minimum threshold of creative authorship necessary for some level of copyright protection to result.

Although the copyright protection afforded to this design is a thin one that will protect its owner from only “virtually identical” copying, such a right is still highly valuable to many companies in the furniture, housewares, and other industrial design spaces.  Perhaps most importantly, since copyrights result immediately upon creation, companies may already possess copyrights in older and existing works (which are often no longer eligible for design patent protection), and not even be aware of it.  A copyright audit performed by a qualified design rights attorney may be able to identify these “slumbering” rights.

The Quarles & Brady design rights legal team is nationally-recognized for its extensive knowledge and practice experience in this complex and important field. For questions about this article or on how to incorporate design-related legal rights into your intellectual property portfolio, please contact the author(s) of this post directly or send a message to the team via our Contact page.