No. The bike rack's design cannot be copyrighted. The court decided that to get a copyright for a useful item's design, the artistic parts must be truly separate from its function. Here, even though it started as art, Brandir changed the design for practical reasons—to make it a better bike rack. Because the final beautiful shape is completely mixed with its useful job, it's considered an 'industrial design,' not a piece of art that can be copyrighted.

Yes. The bike rack's design should be protected by copyright. This judge argued that the real test should be whether a normal person can look at the object and see it as a sculpture, separate from its job. He believed people clearly could see the RIBBON Rack as modern art. It shouldn't lose its copyright just because the artist made practical tweaks. The final product is still artistic enough to deserve protection.

The RIBBON Rack can't be copyrighted because its artistic parts can't be separated in your mind from its useful parts as a bike rack. The rack's shape had to consider a lot of practical things, not just artistic ideas. A professor's test says copyright should depend on how much the design shows pure artistic creativity, not limited by practical needs. Here, even though the rack design started from artistic sculptures, in the end it was really a product of industrial design, mixing art and function together inseparably. So Brandir loses the copyright argument, but the trademark and unfair competition parts of the case will be looked at again.

I disagree with the majority on the copyright issue. Their test for separating the artistic from the functional basically destroys the idea of 'conceptual separability' in the law. They focus too much on the story of how the design was made, letting copyright depend on chance details in the process. What matters is whether an ordinary person looking at the design would see an artistic idea separate from the useful function. Here, anyone would see the Ribbon Rack as a decorative sculpture. The majority is also wrong to suggest copyright depends on whether the Ribbon Rack was always meant to be a bike rack or started as pure sculpture. Copyright shouldn't depend on chance events like that.

"[I] f design elements reflect a merger of aesthetic and functional considerations, the artistic aspects of a work cannot be said to be conceptually separable from the utilitarian elements. Conversely, where design elements can be identified as reflecting the designer's artistic judgment exercised independently of functional influences, conceptual separability exists."

For example, in Brandir, the Second Circuit addressed the copyrightability of a "ribbon-shaped" bicycle rack, the "original design of [which]... stemmed from wire sculptures that...[were] displayed in [their creator's] home as a means of personal expression."

Conversely, when the design of a useful article is "as much the result of utilitarian pressures as aesthetic choices,"

When there are numerous possible constructions of a product, the nature, price, and utility of such constructions are material issues of fact not well-suited for determination at the summary judgment stage.

Expanding on those perceptions, the Brandir court said later in its opinion: "It seems clear that the form of the rack is influenced in significant measure by utilitarian concerns and thus any aesthetic elements cannot be said to be conceptually separable from the utilitarian elements."

Id. "Thus there remains no artistic element of the RIBBON Rack that can be identified as separate and `capable of existing independently, of, the utilitarian aspects of the article.'"

Product design with a secondary meaning is nonetheless insufficient to sustain plaintiff's first and third claims if the protected design is functional, ie, if it serves some useful purpose beyond identification of source and there are no marketable, alternative designs that would achieve the same end.

The Brandir court concluded that this approach "is consistent with the holdings of our previous cases. In [Kieselstein], for example, the artistic aspects of the belt buckles reflected purely aesthetic choices, independent of the buckles' function, while in [Barnhart] the distinctive features of the torsos... showed clearly the influence of functional concerns."

—adopting Professor Denicola's test that makes copyrightability dependent upon "the extent to which the work reflects artistic expression uninhibited by functional considerations" (internal quotation marks and citations omitted

No. The design of the RIBBON Rack does not incorporate artistic features that are conceptually separable from its utilitarian function and is therefore not a copyrightable work. The court adopts the Denicola test, which holds that copyrightability for a useful article's design depends on the extent to which the work reflects artistic expression uninhibited by functional considerations. While the original wire sculptures may have been copyrightable, the final design of the RIBBON Rack is a product of industrial design where form and function are inextricably intertwined. The modifications made to the original artistic form—such as widening the loops, straightening the supports, and using standard industrial pipe—were driven by utilitarian concerns to make a better bicycle rack. Because the ultimate design is as much the result of utilitarian pressures as aesthetic choices, there is no artistic element that can be identified as separate from, and capable of existing independently of, the article's utilitarian aspects.

Yes. The design of the RIBBON Rack incorporates artistic features that are conceptually separable from its utilitarian function and should be copyrightable. The majority's test, which focuses on the designer's process, improperly makes copyright protection dependent on fortuitous circumstances of creation. The proper test, articulated by Judge Newman's dissent in Carol Barnhart, is whether the article stimulates in the mind of the beholder a concept that is separate from the concept evoked by its utilitarian function. Any reasonable observer would easily view the RIBBON Rack as an ornamental sculpture, as evidenced by actual confusion over its function and requests to use it as environmental art. Copyright law should protect the final article as it is perceived, not penalize a designer for modifying an artistic concept to accommodate a utilitarian application.

The RIBBON Rack is not copyrightable because its aesthetic elements are not conceptually separable from its utilitarian aspects. The form of the rack is significantly influenced by utilitarian concerns, and the aesthetic elements cannot be said to be conceptually separable from the utilitarian elements. Applying Professor Denicola's test, copyrightability depends on the extent to which the work reflects artistic expression uninhibited by functional considerations. Here, while the rack may have been derived in part from wire sculptures, it is in its final form essentially a product of industrial design, with the form and function inextricably intertwined. The case is affirmed on the copyright claim but reversed and remanded on the trademark and unfair competition claims.

I respectfully dissent from the majority's discussion and disposition of the copyright claim. The majority's test for conceptual separability diminishes the statutory concept to the vanishing point. Their focus on the process or sequence followed by the designer makes copyright protection depend upon largely fortuitous circumstances concerning the creation of the design. The relevant question is whether the design of a useful article, however intertwined with the article's utilitarian aspects, causes an ordinary reasonable observer to perceive an aesthetic concept not related to the article's use. Here, any reasonable observer would view the Ribbon Rack as an ornamental sculpture. The majority also errs in suggesting that copyright protection depends on whether the Ribbon Rack design was adopted as a bicycle rack from the outset or was originally created as a sculptural work. Copyright protection should not turn on purely fortuitous events.

Brandir International, Inc. v. Cascade Pacific Lumber Co.

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