As part of Mintz Levin’s continuing Intellectual Property series on the practical applications of copyright, trademark, and patent law, this article provides an overview of the copyrightability of certain objects that may not intuitively seem copyrightable, so-called “useful articles.” The following discussion may be particularly helpful for our clients in fashion, software, manufacturing, and industrial design.

A threshold requirement for a work to be “copyrightable” is that it must be an “original work of authorship,”1 which is to say it must be original and creative. To be “original” and “creative” in the context of copyright law, a work must be independently created by the author (rather than copied from some other work). This is a relatively low standard to meet and is very easily applied to creative works of artistic expression such as musical compositions, motion pictures, photographs, and literary works.

In those cases, the question of copyrightability is generally straightforward since these are works of pure artistic expression, valued primarily for their original creative or communicative content. The more difficult, and for certain businesses certainly the more valuable, question is when and to what extent is a work copyrightable when it is embodied in or intertwined with an object which itself is not intrinsically artistic or communicative? For example, how does an industrial or fashion designer make sure, when designing a new product, that he or she obtains the maximum amount of intellectual property protection possible on an economically efficient basis? What cost-effective modifications can be made during the design phase of a piece of business software or a new home appliance to help obtain copyright protection where it might not otherwise be obtainable?