{"id":1147,"date":"2023-01-29T19:43:01","date_gmt":"2023-01-29T19:43:01","guid":{"rendered":"https:\/\/onellp.com\/?p=1147"},"modified":"2024-02-29T19:43:34","modified_gmt":"2024-02-29T19:43:34","slug":"william-obrien-addresses-the-uncertain-boundaries-of-the-copyright-law-with-respect-to-useful-articles","status":"publish","type":"post","link":"https:\/\/onellp.com\/william-obrien-addresses-the-uncertain-boundaries-of-the-copyright-law-with-respect-to-useful-articles\/","title":{"rendered":"William O\u2019Brien Addresses the Uncertain Boundaries of the Copyright Law with Respect to \u201cUseful Articles\u201d"},"content":{"rendered":"

The Intellectual Property Law Section of the California State Bar recently published One LLP Partner\u00a0William O\u2019Brien<\/a>\u2019s \u201cCopyright Commentary\u201d column in the Spring 2016 edition of its magazine\u00a0New Matter<\/em>.\u00a0 In a commentary entitled, \u201cPolicing the Boundaries of Copyright: Is It Time for the Supreme Court to Step In?,\u201d Bill points out the uncertainty that has been created by conflicting decisions in U.S. Courts of Appeals about when features of useful articles\u2014ranging from clothing to cars\u2014can be protected by copyrights rather than by other forms of intellectual property, like utility or design patents, that are more carefully tailored for that purpose.\u00a0 Bill points out the important practical effects of applying copyrights to useful articles, such the much longer term of protection for copyrights and protection of features that would not meet patent-law requirements for novelty and non-obviousness.<\/p>\n

To illustrate the present uncertainly in copyright law, Bill points out that ten different legal standards have been proposed for determining when \u201cpictorial, graphic or sculptural\u201d features of a useful object should be considered sufficiently separable from the object itself to qualify for copyright protection.\u00a0 He says that, amidst this uncertainty, \u201csome courts are now extending copyright protection to features whose separability from a useful article is questionable at best.\u201d\u00a0 For example, Bill cites decisions by the U.S. Court of Appeals for the Ninth Circuit saying that two cars\u2014the Batmobile and the yellow Ford featured in the movie\u00a0Gone in Sixty Seconds\u2014<\/em>could be given copyright protection as \u201ccharacters.\u201d\u00a0 On that basis, the Circuit upheld a copyright infringement judgment against an auto replicator who had waited for the Batmobile\u2019s design patents to expire before making a replica.\u00a0 Bill also discusses a recent decision in which the Sixth Circuit held that the ornamental details of a cheerleading uniform were separate from the uniform\u2019s \u201cutilitarian function\u201d of covering the body and could be protected by copyright.<\/p>\n

Pointing up the lack of predictability in the present copyright law, Bill contrasts the recent Ninth Circuit decisions protecting cars as characters with a much earlier Ninth Circuit decision that denied copyright protection to the character Sam Spade from the book\u00a0The Maltese Falcon<\/em>. \u00a0He says, \u201cIt is hard to understand denying character status to Sam Spade\u2014memorably played by Humphrey Bogart\u2014but granting it to a souped-up yellow Ford.\u201d<\/p>\n

Bill predicts that the present uncertainty is likely to be accelerated by ongoing trends in media and technology, such as \u201cconvergence between physical products and works of authorship\u201d and \u201cimproved interactivity and artificial intelligence,\u201d which \u201cwill lead to even more opportunities to construe machines as \u2018characters.\u2019\u201d\u00a0 He asks, \u201cIs Apple\u2019s Siri personal assistant program a \u2018character\u2019\u2014with her own voice, mannerisms, and even jokes, which make her far more human-like than the Batmobile?\u00a0 If so, can Apple\u2019s interactive technology\u2014or even the iPhones that use it\u2014be protected for 95 years under the Copyright Act?\u201d\u00a0 Bill concludes that, \u201cAbsent Supreme Court intervention, there is no clear limit to the expansion of copyright protection for product designs.\u201d<\/p>\n

Read full article.<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

The Intellectual Property Law Section of the California State Bar recently published One LLP Partner\u00a0William O\u2019Brien\u2019s \u201cCopyright Commentary\u201d column in the Spring 2016 edition of its magazine\u00a0New Matter.\u00a0 In a… Continue Reading William O\u2019Brien Addresses the Uncertain Boundaries of the Copyright Law with Respect to \u201cUseful Articles\u201d<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[],"_links":{"self":[{"href":"https:\/\/onellp.com\/wp-json\/wp\/v2\/posts\/1147"}],"collection":[{"href":"https:\/\/onellp.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/onellp.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/onellp.com\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/onellp.com\/wp-json\/wp\/v2\/comments?post=1147"}],"version-history":[{"count":1,"href":"https:\/\/onellp.com\/wp-json\/wp\/v2\/posts\/1147\/revisions"}],"predecessor-version":[{"id":1148,"href":"https:\/\/onellp.com\/wp-json\/wp\/v2\/posts\/1147\/revisions\/1148"}],"wp:attachment":[{"href":"https:\/\/onellp.com\/wp-json\/wp\/v2\/media?parent=1147"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/onellp.com\/wp-json\/wp\/v2\/categories?post=1147"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/onellp.com\/wp-json\/wp\/v2\/tags?post=1147"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}