User:Elcobbola/Awards

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From time to time it is erroneously argued that, as copyright pertains to “art,” works not traditionally considered “art” ought not to be eligible for copyright protection. This notion, however, is based on an incorrect, colloquial/lay understanding of the scope of copyright (a conflation of "art" with the actual scope, as explained below). Accordingly, this essay discusses a category of works which may be subject to this confusion: awards. This essay seeks to present the statutory and legal support for the copyright eligibility of certain awards and thus to identify the logical errors and misunderstandings that have led to contrary opinions.

Note that because images on the Commons must be freely licensed in both the United States and their country of origin,[1] the laws of the United States serve as a first "hurdle" for all images. Accordingly, as a matter of simplicity and practicality, this essay focuses exclusively on copyright law in the United States and eschews the laws of other jurisdictions.

Statutory background

Although the notion of copyright generally conjures thoughts of music, films, literature, paintings, and sculptures, it is in actuality applicable to a larger variety of works. Indeed:

Copyright protection subsists, [...] in original works of authorship fixed in any tangible medium of expression [...]

17 U.S.C. § 102

From this definition, we see why even less obvious works -- such as coins and jewelry -- are potentially eligible for copyright, as are the small statues (trophies, statuettes, and figurines) and other items commonly conveyed as awards for meritorious achievement. Indeed, such awards are generally original,[2] have authors, and are fixed in a tangible medium (metal, for example). As something of a confirmation, the statutory definition of "works of authorship" explicitly includes '“Pictorial, graphic, and sculptural works," or:

[T]wo-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, 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 [...]

17 U.S.C. § 101 (emphasis added)

Trophies, statuettes, and figurines

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The copyright eligibility of trophies, statuettes, and figurines has generally not been contested on the Commons. Rather, related discussions have typically focused on issues of freedom of panorama (FoP) or copyright term expiration instead of whether the sculptural work is (or was once) protected by copyright. As this essay seeks to discuss mere eligibility before application of exemptions (such as FoP), this section largely states the obvious.

In addition to the statutory inclusion of "three-dimensional works of fine, graphic, and applied art," the U.S. Copyright Office's Visual Arts (VA) registration form lists "carvings, ceramics, figurines, maquettes, molds, [and] relief sculptures" (emphasis added) as examples of sculpture. Further, the Copyright Office's classification system includes the category (coding) of "[v]isual arts, sculpture, figurines, statues, statuettes".

Copyright registrations and case law establish that the use of sculpture as an award does not alter its copyright eligibility. To the right, for example, is the copyright registration granted to the Emmy Award.[3] Similarly, U.S. case law has explicitly and implicitly established that trophies, statuettes, and figurines (synonyms) are eligible for copyright protection; for example:

We conclude that the Academy's sleek, muscular gold statuette known as "Oscar," which is recognized world wide as a distinctive symbol of outstanding achievement in film, and which the Academy awards to a select group of talented individuals for the limited purpose of promoting the motion picture arts and sciences, is entitled to protection under the Copyright Act of 1976.

—Academy of Motion Picture Arts and Sciences v. Creative House Promotions, 944 F. 2d 1446 (1991)

Appellant sells at retail metal trophies usually given at horse shows or amateur rodeos as prizes. [...] Appellant is the owner and holder of a Certificate of Copyright Registration, No. Gp 36,325, issued January 22, 1963, on a cowboy trophy figurine.

—Williams v. Kaag Manufacturers Inc., 338 F. 2d 949 (1964)

Commons examples

Medals and rings

Like trophies, statuettes, and figurines, the copyrightability of jewelry -- including medals (medallions) and rings -- has generally not been controversial on the Commons. Indeed, jewelry is generally eligible for copyright protection and is separately identified in the copyright rules by subject matter.[4] In addition to the statutory inclusion of "three-dimensional works of fine, graphic, and applied art," the U.S. Copyright Office's Visual Arts (VA) registration form includes "rings, pendants, earrings, necklaces, and the like" as examples of jewelry designs. Further, the Copyright Office's classification system includes the category (coding) of "[j]ewelry and graphic designs for jewelry." Case law further supports this notion and provides additional relevant considerations, for example:

[A]lthough the jewelry designs ... are created from a combination of common elements, the designs are protected in their entirety because it is the combination of elements that is copyrighted. The combinations of the common elements have resulted in designs that are original and protected in their entirety.

—Yurman Design, Inc. v. Golden Treasure Imps., Inc., 275 F. 2d 506, 516 (S.D.N.Y. 2003)

In the instant case, the article in question is a ring. The Ring is purely ornamental, its sole purpose is to portray its appearance. Accordingly, the court concludes that it is not a useful article under Section 101, and the court need not determine whether the utilitarian aspects of the mount are separable from the sculptural elements.

—Donald Bruce & Co. v. B. H. Multi Com Corp., 964 F. Supp. 265 (1997)

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An additional source of confusion related to jewelry, particularly medals, has been whether they are 3D objects (thus requiring confirmation of a free license on both the medal itself and the photograph thereof).

Commons examples

Championship belts

Certain competitions -- such as professional wrestling, boxing, and other combat sports -- present awards and titles in the form of championship belts. This form factor can present a challenge, as intuition might lead one to view a belt as clothing, and thus a useful article exempt from copyright protection. This conception, however, is incorrect and is defeated by two related copyright concepts: function and the conceptual separability doctrine.

Function

Two belts are in this image. Which is actually holding up pants, and which is merely being displayed?

A useful article is defined as "[a]n object that has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information." [5] Note here that copyright law makes the perhaps counter-intuitive consideration of function. When, for example, was the last time you saw a WWE Championship belt genuinely used to hold up trousers? Although this championship belt mimics the general form of a utilitarian belt -- a symbolic homage to a historical facet of the competition -- it does not retain the same function. Indeed, the championship belt is merely worn or displayed as ornamentation ("to portray the appearance of the article or to convey information"). This is perhaps analogous to On Davis v. The Gap Inc., 246 F. 3d 152 (2nd Cir. 2001), which concerned alleged infringement of copyrightable "nonfunctional jewelry worn over the eyes in the manner of eyeglasses." Such frames, despite being worn in the fashion of the related useful article (functional eyeglasses) -- like a championship belt worn as a "normal" belt -- are eligible for copyright protection if used as decoration (jewelry). Further, Kieselstein-Cord v. Accessories by Pearl Inc., 632 F. 2d 989 (2nd Cir. 1980) found certain belt buckles with "sculptured designs cast in precious metals-decorative in nature and used as jewelry is, principally for ornamentation" (emphasis added) were eligible for copyright protection. We observe, therefore, that a principle function of decoration can subordinate a secondary utilitarian function. It would be unreasonable to claim that championship belts are used principally to combat gravity.

Conceptual separability doctrine

Alternatively, let us ignore the previous section and instead assume that championship belts are indeed useful articles. The US Code asks whether the aesthetic features of a useful article can be identified separately from, and can exist independently of, the utilitarian function.[6] Consider, for example, a shirt on which Mickey Mouse has been screen-printed. The picture of Mickey is still capable of being identified as Mickey (i.e., a separate entity). Further, a shirt need not look like Mickey to perform its utilitarian function as clothing (i.e, the two can exist independently). Indeed, as explained by House Report No. 94-1476:

A two-dimensional painting, drawing, or graphic work is still capable of being identified as such when it is printed on or applied to utilitarian articles such as textile fabrics, wallpaper, containers, and the like. The same is true when a statue or carving is used to embellish an industrial product or, in the Mazer case,[7] is incorporated into a product without losing its ability to exist independently as a work of art.

—H.R. Rep. No. 1476, 94th Cong. 55 (1976) (emphasis added)

The US Code's rationale, and indeed the emphasized verbiage of the House Report, is of course applicable to championship belts. Verily, a large metal plate -- adorned with gem stones, carvings, and other ornate designs -- embellishes the industrial product. The plate is capable of being identified separately from the utilitarian aspect of the belt. For example, one could simply remove the plate and the utility of the belt would be unimpaired. Similarly, removal of the plate demonstrates the ability of the sculptural work to exist independently of the utilitarian function.

Commons examples

Notes

As a mere metal band, it is not expected that this ring would be sufficiently original to receive copyright protection.
  1. "Uploads of non-U.S. works are normally allowed only if the work is either in the public domain or covered by a valid free license in both the U.S. and the country of origin of the work." (COM:L)(emphasis in original)
  2. As is the case with any category of work, certain works may be too simple to be eligible for copyright protection. This essay, however, presupposes that a given award passes the threshold of originality. In the case of jewelry, for example, championship rings (such as the Super Bowl ring) and award medals (such as the Olympic medal) are the works contemplated. Conversely, a rudimentary ring such that the one to the right is not within the scope of this essay. Note, however, that "all that is needed to satisfy both the Constitution and the statute is that the 'author' contributed something more than a 'merely trivial' variation, something recognizably 'his own.' Originality in this context 'means little more than a prohibition of actual copying.'" (Alfred Bell & Co. v. Catalda Fine Arts, 191 F. 2d 99, 102-03 (2d Cir. 1951))
  3. "Possession of a certificate of registration provides its holder with a rebuttable presumption of ownership of a valid copyright." (Boisson v. Banian, Ltd.,273 F.3d 262, 267 (2d Cir.2001))
  4. See, for example, Herbert Rosenthal Jewelry Corporation v. Honora Jewelry Co Inc., 509 F. 2d 64 (2nd Cir. 1974), Herbert Rosenthal Jewelry Corp v. J Grossbardt, 436 F. 2d 315 (2nd Cir. 1970), Herbert Rosenthal Jewelry Corp v. Kalpakian, 446 F. 2d 738 (9th Cir. 1971), Gemveto Jewelry Company Inc v. Jeff Cooper Incorporated, 800 F. 2d 256 (1986), Dan Kasoff Inc v. Gresco Jewelry Co., 308 F. 2d 806 (1962)
  5. 17 U.S.C. § 101 via U.S. Copyright Office
  6. "The design of a useful article [...] shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." (17 U.S.C. § 101) (emphasis added)
  7. In accordance with the Supreme Court’s decision in Mazer v. Stein, 347 U.S. 201 (1954), works of “applied art” encompass all original pictorial, graphic, and sculptural works that are intended to be or have been embodied in useful articles, regardless of factors such as mass production, commercial exploitation, and the potential availability of design patent protection. (H.R. Rep. No. 1476, 94th Cong. 55 (1976))