Can you copyright product designs and shapes?
In addition to patents and trademarks, copyright registrations can be valuable in protecting certain products. At times, it may be too late to seek patent protection due to past public disclosures of your product. Trademark protection for product shapes can be particularly challenging. Copyright registrations, therefore, may help to protect the 2-dimensional artwork of a design, the 3-dimensional shape of a product or a combination of both.
Can you copyright 2-dimensional design?
It is possible to obtain a copyright registration on 2-dimensional artwork without regard to the medium on which the artwork is displayed. By copyrighting a 2-dimensional work, you are seeking exclusivity in using that artwork regardless of whether it is placed on clothing, websites, printed products or any other medium.
For example, you can copyright photos, works of art, maps, technical drawings or a combination of visual elements with or without text.
What 3-dimensional products can be copyrighted?
Certain types of three-dimensional products are copyrightable with lower risks of rejections by the US Copyright Office. Such 3-dimensional works include:
Outside of the above 3-dimensional works, it can be a bit tricky to obtain copyright registrations for products that serve a useful function.
Can you copyright a useful product or certain features of useful articles?
Generally, a useful product is not copyrightable as a whole. However, it might be possible to copyright certain two-dimensional or three-dimensional features of a utilitarian product. To be copyrightable, features of a useful product must pass a 2-part separability test as set forth in the US Supreme Court case of Star Athletica v. Varsity Brands.
A feature of a useful product may be copyrightable if:
- the feature is a 2-dimensional or 3-dimensional work of art that can be perceived as separate from the useful article; and
- the feature qualifies as a protectable, graphic, or sculptural work, either on its own or fixed in some other tangible medium, if it were imagined separately from the useful article.
In other words, can you imagine that feature separated from the useful article? If so, would that feature be protectable on its own to warrant a copyright registration?
For two-dimensional designs on useful articles, it may be easier to imagine the artwork apart from the product. Where it gets tricky is when you are dealing with 3-dimensional features on useful articles.
Is trade dress an option?
Trade dress can be very particularly challenging to register. An owner would need to show that the trade dress is inherently distinctive or, if not, that secondary meaning has been achieved. In the case of the hotel shaped like a guitar, the trade dress was protectable without requiring secondary meaning because the shape was inherently distinctive. In re Seminole Tribe of Florida, 2023 U.S.P.Q.2d 631 (TTAB 2023).
Need copyright registrations for your product designs?
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