Want to stay current on e–commerce law? Sign up for Email Newsletter.
U.S. Appeals Court Adopts Likelihood-of-Marketability Test for Copyright in Useful Articles
The U.S. Court of Appeals for the Fifth Circuit has issued a decision that concerns the extent to which the designs for uniform articles are protected under U.S. copyright law. Though specifically concerned with clothing designs, the impact of the decision extends to any subject matter having both utilitarian and aesthetic value.
The dispute was whether copyright would protect, not only the sketches and illustrations of garment designs that the Plaintiff created, but also the designs of the garments themselves. A district court held that the designs of the garments themselves were not copyrightable subject matter because the aesthetic and utilitarian elements of the uniforms were conceptually indivisible. The U.S. Court of Appeals for the Fifth Circuit upheld the decision of the district court on the basis of the “Nimmer/Poe” likelihood-of-marketability test for determining whether an artistic design in a useful article is conceptually separable from the article itself.
The Court described the likelihood-of-marketability test as follows: conceptual separability exists where there is a substantial likelihood that even if the article had no utilitarian use, it would still be marketable because of its aesthetic value.
For a copy of the Court of Appeal decision, visit: