Useful Articles Government Works



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  • Useful Articles

  • Government Works

  • Ownership (Works for Hire)





Includes “two dimensional and three dimensional works of fine, graphics, and applied art, … and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned ….”

  • Includes “two dimensional and three dimensional works of fine, graphics, and applied art, … and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned ….”



  • “…the design of a useful article … shall be considered a [PGS] work only if, and only to the extent that, such design incorporates [PGS] features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”



A “useful article” is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article”.

  • A “useful article” is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article”.



  • Applied art: hood ornament; cartoon character figures attached to a product; separate, decorative elements of commercial products

  • Industrial design: sleek and comfortable pen or kitchen appliance; sports car design







  • Physical separability: Mazer; hood ornament

  • “Conceptual separability” – what does this mean in practice?















  • Judge Newman test (Carol Barnhart dissent): object stimulates a conception that is separate from its utilitarian function . . .”

  • Too “ethereal”?



  • If a work is mass produced, and sold for a useful purpose, it is not copyrightable . . .

  • Problems: Shuts down market for “applied art”?

  • Salvador Dali ties; Picasso trash cans . . .



  • “Industrial design process”

    • Height, bends, and material – all utilitarian
    • Compare: ties and waste basket . . .


“[I]t is in its final form a work of industrial design . . .”

  • “[I]t is in its final form a work of industrial design . . .”



Form and function are inextricably intertwined in the rack . . .” -- p. 468

  • Form and function are inextricably intertwined in the rack . . .” -- p. 468

  • Of course, this is the essence of much of modern design: Form follows Function!







  • Purely fortuitous events dictate the outcome under the Brandir test

    • What if “aesthetic” sculpture happened to coincide with good dimensions for a bike rack?


  • Statutes, case law, regulations

  • Idea/Expression merger here?

  • Government contractors’ works: case by case



Patent vs. Copyright

  • Patent vs. Copyright

  • Copyright “vests initially in the author or authors of the work.” Section 201

  • Patent: same



(b) Works Made for Hire. — In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

  • (b) Works Made for Hire. — In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.



  • (1) a work prepared by an employee within the scope of his or her employment; or

  • (2) . . . Specially ordered or commissioned [in certain categories]





  • “Hired to invent” – employer owns

  • Related to employer’s business, made with employer’s resources: employer may have “shop right” to use invention, but employee owns

  • Unrelated to employer’s business, made with employee resources: employee owns



Robert P. Merges, The Law and Economics of Employee Inventions, 13 Harv J L & Tech 1 (1999)

  • Robert P. Merges, The Law and Economics of Employee Inventions, 13 Harv J L & Tech 1 (1999)

  • Explaining patent ownership rules







  • Two major categories

    • 1. Employee works
    • 2. Specially commissioned works in nine certain specific fields


A “work made for hire” is —

  • A “work made for hire” is —

  • (1) a work prepared by an employee within the scope of his or her employment;

  • or

  • (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.



A “work made for hire” is —

  • A “work made for hire” is —

  • (1) a work prepared by an employee within the scope of his or her employment;

  • or

  • (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a (1) part of a motion picture or (2) other audiovisual work, as (3) a translation, as (4) a supplementary work, as (5) a compilation, as (6) an instructional text, as (7) a test, as (8) answer material for a test, or (9) as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.



  • 4 tests on operation, pp. 491-92 Ipnta 5th

  • Control vs. “agency”

  • Court takes “common law agency” view



Hiring party retains right to control

  • Hiring party retains right to control

  • Hiring party wields actual control

  • Common law, agency law meaning

  • Only formal, salaried employees



  • “Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine . . . .” – Ipnta 5th 492.



[W]e consider the hiring party’s right to control the manner and means by which the product is accomplished.

  • [W]e consider the hiring party’s right to control the manner and means by which the product is accomplished.

  • Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools;



[L]ocation of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party;

  • [L]ocation of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party;



[T]he extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business;

  • [T]he extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business;



[T]he provision of employee benefits; and the tax treatment of the hired party. See Restatement [of Agency] §220(2) (setting forth a nonexhaustive list of factors relevant to determining whether a hired party is an employee).

  • [T]he provision of employee benefits; and the tax treatment of the hired party. See Restatement [of Agency] §220(2) (setting forth a nonexhaustive list of factors relevant to determining whether a hired party is an employee).



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