Protection of Works of Applied Art: Rethinking Conceptual Separability and Aesthetic Requirement

Jerry Jie HUA

<Journal of Intellectual Property Law and Practice>  August 2017

Author

Jerry Jie HUA, Associate Professor, Research Interests:Copyright Law, Trademark Law, Internet Law

Keywords

Copyright protection; Works of Applied Art; Rethinking Conceptual Separability; Aesthetic Requirement

Brief Introduction

Copyright protection of works of applied art encounters the following difficulties: first, to set up the threshold for examining aesthetic value of a work of applied art, since examination of aesthetic value is subjective and varies among different judges; second, to determine whether the functional part should be separated from the aesthetic value, as it is important to analyze various approaches adopted by different courts and suggest a feasible and consistent way to resolve the separability issue; third, to decide substantial similarity as a matter of copyright infringement, as comparison between the original and the alleged infringing products will cover both their aesthetic and functional parts and it is important to decide the substantial similarity of which part results in copyright infringement.

In light of the difficulties, this article attempts to suggest a four-step test to better determine copyrightability of works of applied art by examining intrinsic utilitarian function, aesthetic feature based on the merger doctrine, originality threshold, and functionality of the aesthetic feature. The first step is utilitarian function; the second step is aesthetic feature; the third step is originality; the fourth step: functionality of aesthetic feature