Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2016 "Courts Have Twisted Themselves into Knots": US Copyright Protection for Applied Art Jane C. Ginsburg Columbia Law School,
[email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Entertainment, Arts, and Sports Law Commons, Intellectual Property Law Commons, and the Torts Commons Recommended Citation Jane C. Ginsburg, "Courts Have Twisted Themselves into Knots": US Copyright Protection for Applied Art, COLUMBIA JOURNAL OF LAW & THE ARTS, VOL. 40, P. 1, 2016; COLUMBIA PUBLIC LAW RESEARCH PAPER NO. 14-526 (2016). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2000 This Working Paper is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact
[email protected]. [For Columbia Journal of Law & the Arts, 100916; rev 200916; 051016] “Courts have twisted themselves into knots”: US Copyright Protection for Applied Art Jane C. Ginsburg, Columbia University School of Law* Abstract: In copyright law, the marriage of beauty and utility often proves fraught. Domestic and international law makers have struggled to determine whether, and to what extent, copyright should cover works that are both artistic and functional. The U.S. Copyright Act protects a work of applied art "only if, and only to the extent that, its design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." While the policy goal to separate the aesthetic from the functional is clear, courts' application of the statutory "separability" standard has become so complex and incoherent that the U.S.