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Copyrights are seemingly simple and clear rights and are provided under the U.S. Constitution at Article I, section 8, clause 8.  However, as time and technology pass, the subject matter and scope of protection of copyrights has evolved, and as a result copyrights are not particularly simple nor clear.

The copyright statute provides for copyrightable subject matter at 17 USC 102(a):

(a)        Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.

That same section of the statue provides what is not subject to copyright at 17 USC 102(b):

(b)        In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Notably, useful expressions such as but not limited to the following are subject to copyright protection, though the particulars can be rather detailed, based on the amount of originality of the expression, which need not be extensive.

  1. Databases as to the selection, form, and arrangement of the data;
  2. WWW pages;
  3. Logos; and
  4. Graphical User Interfaces.


All of these can be used to protect certain aspects of computer implemented inventions, which have come under fire by the courts and patent offices.  A bit of creativity may be needed in order to put together a strategy of protection.

Computer implemented inventions can include biomedical applications, notably as medicine is becoming more reliant upon statistical analysis of multiple tests and individual patient variables as medicine becomes more personalized.  Of course, privacy rights of the patient need to be addressed, a topic for which a battle of sorts seems to be brewing.  Other biomedical fields such as but not limited to drug discovery and other data-centric endevors may benefit from copyright protection evaluation as well.

Recent case law as provided a more expansive view of protecting useful articles that include original works of authorship.  As such, articles of manufacture or other forms of expression that include functional aspects and artistic expression can be the subject of copyright protection. (See, Star Athletica, LLC v. Varsity Brands, Inc., 137 S. Ct. 1022 (2017). relating to copyright protection of certain aspects of cheerleading apparel).

Loosely put, the question to be asked is whether the artistic expression can be removed from the functional aspect of an article of manufacture or other form of expression (a separability or “filtering” analysis).  If not, then the expression is not subject to copyright protection.

In Star Athletica, the U.S. Supreme Court held that a feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (a) can be perceived as a two- or three-dimensional work of art separate from the useful article and (s) 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.”  The Court also noted that noted that “certain restrictions should not be places on this test, such as once an identified artistic feature is remove, the test does not require that an equally useful, or even a fully functional article remain.” (See, McClay, http://www.bakerbotts.com/ideas/publications/2017/11/ip-report-p-mcclay (2017) which includes a summary of the separability analysis and Star Athletica and other prior and later cases in that referenced article entitled “Has Copyright Protection Expanded for Useful Articles?).

In some instances, copyright protection can run cheek and jowl with design patent protection.  Design patents protect ornamentation of an article of manufacture, which can overlap with the expression of copyright protection.  Multiple protectable rights can be a hallmark of a particularly effective intellectual property protection strategy, and different intellectual property rights have different benefits and detriments.  A general example that may or may not include functionality is field of jewelry.

November 12, 2017, edited November 22,2017

Disclaimer: The materials provided on this website are for general information and educational purposes only and are not intended as, and should not be taken as, legal advice or the formation of an attorney/client relationship. Individuals and entities having intellectual property issues should consult with a patent attorney or patent agent to fully address intellectual property law matters based on an analysis of the particular facts. The attorney members of the firm are licensed to practice law in the state of California, and otherwise as noted.