from the Copyright Office, Library of Congress, Washington, D.C. 20559

POLICY DECISION
REGISTRABILITY OF COSTUME DESIGNS
The follo~vingexcerpt is taken from Volume 56, Number 214 of
the Federal Register for Tuesday, November 5,1991 (p. 56530)

-

LIBRA9Y OF CONGRESS

I

Copyrlght OWka

[Docket No. RM 91-SAJ
Reglstrablllty of Costume-I

Copyrigh: Office. library of
Congress.
ACTION: Policy Decisicn.
-

AOENCY:

s u u w r . The Copyrigh: Office of the
Library of Congress issues this Pollcy
Decision clarifying its pract!ces
regarding the registrabihty oimasks and+.
costume designs. Under the adqpted
prrztices, masks will be regishahle on
- ihe basis of pictorial and/or scul~tural
authorship. Costumes will be treat1-d as
useful articles, and will be registrabie
only upon a finding of separable ertis:ic
authorship.

,

FOR FURTHER INFORMATION COWTACI:

Dorothv Schrader. General Counsel, U.S.
~ o p & i h tOffice, Library of Congress.
Washington, DC #)55% (202) 7074380.
SUPPLEMENTARY INFORYATIOK

Works subject to copyright protection
may secure copyright registration in the
Copyright Office. Copyright Act of 1976
title 17. U.S.C. sections 508-412.
Determining the registrability of masks
and costumes requires the application of
the definitions of 'pictorial, graphic end
sculptural works" and "useful article."
a s set out in section 101 of title 17. These
definitions are as follows:
"Pictorial, graphic and sculptural works"
includee two-dimensional and threedimensional works of fine. graphic and
applied art. photographs. prints and arl
reproductions. maps. g l o h chartr.

,

diagrams. modelr, and technical d r e w w .

1 including architectural plane. Such workr

rhall include workr of artidic craftrmanrhip
insofar an their form but not theiu mechanical
or utilitarian arpecb am conamad; the
derign of a ureful article. ar defined in this
rection, rhall be connided a pictorial.
graphic, or rculptural work & If, and only
to the extent that ouch den@ incarporater
pictorial. graphic, or mrlptural featthat
urn be idenhfied reparately from and are
capable of exirting independently of. the
utilitarian arpecU of the ariicie.
A "uaeful article" in an article bavlng an
intrinsic utilitarian function that ir not merely
to portray the appearance of the article or to
convey information. An article that Ir
normally a part of a nreful article h
conridered a "ureful article.'
The House judiciary Committee
Report accompanying the 1976
Copyright Act explained that through
the above definitions Congrem sought to
"draw ae clear a line a s possible
between copyrightable works of applied
art and unwpyrightable works of
industrial design." H.R Rep. No. 1478,
94th Cong. 2d Sees. 55 [1976]. The report
provided further guidance ae followe:
A two-dimenrional painting drawing, or
graphic work ir rtill capable of being
Identified ar ouch when it ir printed on or
applied to utilitarian article8 ouch ar textlle
fabriw. wallpaper, containers, and the like.
The name io true when a rtatue or carving Ir
ured to embellirh an induetrial product or, ar
in the M m case. Ir incorporated into a
product without loeing itr ability to exirt
independently a8 a work of art On the other
hand although the shape of an industrial
product may be aesthetically ratisfying and
valuable, the Committee'r intention in not to
offer it copyright protection under the bill.
Unleer the rhape of an automobile. airplane.
ladies'dress. food processor. television ret
or any other industrial product contains some
element that physically or conceptually. can
be identified ae separable from the utilitarian

- . - 1-aipectr of that art~cle,the derign would not
I be copyriehted under the bill. The tent of

reparability and independence from "the
utilitarian arpectn of the artfcle" doer not
depend upon the nature of the design-that
in. even if the appearance of an article ir
determined by eethetic (a8 oppored to
functional] coneiderationr, only elementr, if
any, which can be identified reparately from
the ureful article ao ouch are copyrightable."
Id. mpharir added].
The Copyright Office has generally
refused to register claims to copyright in
threedimensional aspect8 of clothing or
coshune design on the ground that
articles of clothingand costumee are
useful articles that ordinarily contain no
I artistic authorship separable from their
overall utilitarian shape. A twodimeneional design applied to the
surface of the clothing may be
registered but this claim to copyright is
generally made by the fabric producer
rather than the garment or costume
designer. Moreover, this claim to
copyright is ordinarily made when the
two-dimensional design is applied to the
textile fabric and before the garment is
cut from the fabric.
The 1976 House Report confirms that
"ladies' dress" and other clothing
cannot be protected by copyright merely
on the ground that the appearance of the
useful article is determined by aesthetic
considerations. Over the last few years.
however, the Office registered a few
narrowly drawn claims in certain
three-dimensional fanciful or animalshaped items that can be worn. Some of
these claims have been the subject of
litigation.
2. Litigation
In general, cases have not treated
masks a s useful articles. and, a s a result.

I

I

' No claim for inatana. a n be made on the
functloruldeaign of clothing.
Error: line should read:
"title 17, U.S.C.sections 408-412."
' ~ r r o r ; line should read:
"A two-dimensionalpanting, drawing, or"

 '

I

copyrightability can be supported by a
mere finding of pictorial or sculptural
authorehip. Costumes. on the other
hand, have been treated as useful
articles, necessitating a finding of
separable pictorial or sculptural
authorship in order to support copyright
protection.
~n
one of the leading cases bn masks,
Mosquemde Novelty v. Unique
Industries, 912 F.2d 683 (3rd Cir. 1990),
the court held animal masks were not
useful articles because "nose masks
have no utility that does not derive from
their appearance." The masks were
configured to resemble the nose of a pig,
elephant, and parrot, and we- found to
be copyrightable. ln Pusillon v.
McDonald's Corp..927 F.2d 400 (9th Cir.
1991). copyright in a Halloween mask
depicting a man in the moon was
conceded to be valid. but summary
judgment was granted in favor of the
defendant due to lack of substantial
similarity.
While the cases consistently treat
costumes as useful articles. the
applicable standards for determining
separability are unclear. LIAnimal Foir
Inc. v. Amfesco Industries. Inc. 820
F.Supp. 175 (D.C. Minn. 19851. a f f d
mem., 794 F.2d 878 (8th Cu.1988). the
district court upheld copyright in a
slipper depicting a bear's foot. While
treating the slipper as a useful article.
the court concluded the whole shape
and design were recognizable as a
fanciful artistic rendition of a bear's
paw. The E@th Circuit affirmed
without written opinion.
The test of conceptual separability
was raised in Act Young Imports. Inc. v.
B 6.?I Soles Co., Inc.. 873 F. Supp. 872
(S.D.N.Y. 1987). in a case involving
children's backpacks. In that case the
court upheld copyright in animal shaped
backpacks because the animal image
was s e ~ a r a t efrom the useful function of
the
In Notionol Theme Productions Inc. v.
f e r n B. Beck Inc.. 898 F. SUDD
1348 IS.D.
~a1.-1988),a district court heid that '
while masquerade costumes were useful
articles. the costumes involved in the
case successfully met the conceptual
separability test. The works in issue
were elaborate costumes depicting
independently recognizable images and
were registered by the Copyright Office.
In the complex case of Whimsicality,
Inc. v. Rubie's Costumes Co. Inc.. 891
F.2d 452 (2nd Cir. 19891. the Second
Circuit denied a copyright action
alleging infringement of six costumes on
the grounds that the claims had been
misrepresented to the Copyright Office.
The costumes had been registered as
"soft sculptures" and the applications
did not disclose that the works were

costumes. Under the unique facts of the
"cfion lol
17.Both the
law
and comment letters appear to agree
case. the plaintiff was denied relief.
with this position.
3. Notice of Inquiry
Although a mask alone is not
considered a useful article, a legitimate
Due to the uncertainty regardins the
question arises regarregistrability of masks and costume
pmctices
in instances where a
designs. the Copyright Office published
copyrightable mask is combined and
a notice of inquiry on May 2, 1991.
FR "Id
as a unit with an otherwise
20241 (1991) concerning regLtration of
uncop*.ghtable
costume. ln such
costume designs. The notice
circumstances, the Copyright Office will
summarized 'Ie
of the
principles in the area, incluthe case register the 'korkwon theinbasis
the mask.
cop,~ghtable
law. The notice further raised eight
This approach appears to be consistent
On which 'Omment
with Mazer v. Stein, 347 U.S. Un (1954),
was sought
holding that a copyrightable work of art
The notice generated twelve
does not lose its copyrightability upon
comments. Some of the comments came incorporationinto a useful article.
the garment
and those
Again, only the separable artistic
comments generally sought an
features. in this case the mask, would be
expansion of the protection available to
to
wearing apparel. Other comments came
6.
Exam;;lms
Pmctim With Respect to
h m the costume industry, a:!
those
hnnent
comments were generally mixed as to
whether or not the availability of
A few of the comment letters were
copyright should be expanded. The
from the garment industry urging a
remainder came from the bar and
broader availability of copyright
academic communities.
protection for garment designs. On this
Of the comments which were
point the copyright law is reasonably
received. most took the position thatsoclear. Gannents are useful articles. and
called fancif2 costumes should be
t!!e designs of such earments are
registered, while ordinary wearing
generally outside of the copyright law.
I apparel should be rejected. However,
Parties who wish to modify this position
, none of the comments talung such a
must address their concern to the
position set out workable guidelines for I Congress, since establishment of such
, separating fanciful costumes from
i protection must have Congressional
wearing apparel. A differing view was - 1 authorization.
The general policy of nonregistrability I
expressed by one law firm, which took
of garment designs will be applied not
the position that all costumes were
only to ordinary wearing apparel. but
useful articles without any separate
. artistic authorehi~.
also to period an; historical h e r , and
u n i f ~ ~M'taring
s.
apparel incorporated
i 4. Summery of Policies Adopted
into theatrical prod~ctionswill likewise
be treated under the standapplying
The examining practices with respect
to garment designs in ~ m e d to masks will not treat masks as useful
articles, but will instead determine
7. Examining Practices With Respect to
registrability on the existence of
Fmciful Costumes
minimum pictorial and/or sculptural
For purposes of copyright registration,
authorship. Garment designs (excluding
fanciful costumes will be treated as
separately identifiable pictorial
representations of designs imposed upon useful articles. Costumes serve a dual
purpose of clothing the body and
the garment] will not be registered even
portraying their appearance. Since
if they contain ornamental features, or
clothing the body serves as a useful
are intended to be used as historical or
function, costumes fall within the literal
period dress. Fanciful costumes will be
defdtion of useful article. In addition.
treated as useful articles. and will be
the case law consistently treats
registered only upon a finding of
I costumes as useful articles, and a
separately identifiable pictorial and/or
Copyright Office decision to differ
sculptural authorship.
substantially from these court decisions
5. Examining Racticss With Respect to
' would appear difficult to justify.
Masks
In accordance with the copyright
principles apply~ngto useful articles.
Current examining practices base
fanciful costumes will be registered if
registration of masks on the existence of
they contain separable pictorial or
minimum pictorial and/or sculptural
scul~turalauthors hi^. The se~arable
authorship. Since masks generally
~ut);omhip
may be physicall; separable.
portray their own appearance, this
lneaning that the work of art can be
subject mstter appears to fall outside of
physically removed from the costume, or
the definition of "useful article" in

.

'

3 ~ r r o r ;line should read:
"subject matter appears to fall outside of'

.

 ,

conceptually separable, meaning that
the pictorial or sculptural work is
independently recognizable and capable
of existence apart from the overall
utilitarian shape of the useful article.
The standards for determining
eeparability are set forth in section 505
of Compendium 11 of Copyright Office
hactices.
8. Registretion is Mandated Where Aay
Portion of a Wmk C o n t a h
Copyrightable Authorship
In examining claims to copyright. the
Copyright Office is required to make a
registration if any portion of a work can
reasonably be construed as containing
copyrightable authorship. Such a
registration should not be treated as

ML-435
Novcmbcr 1991-500

,

extending protection to uncopyri&table
elements. For example. if an
uncopyrightable costume is sold in
packaging ma!erial which contains a
pictorial illustration, the "work" would
be registrable on the basis of the
pictorial illustration
In examining applications for
registra tion the Copyright Office will
generally limit the claim if the
application specifically asserts
protection in an uncopyrightable
element. In most cases, however, there
is no correspondence detailing the basis
of the registration.
It is hoped that this poIicy decision
will clarify the policies of the Copyright
Office with respect to masks and
costumes and will discourage the

drawing of misleadmg conclusions
regardmg registrations which are made
for parts of costumes. Costumes, by their
very nahue. exist at the boundary
between works of imagination and
works of utility. Portions of some
costumes will be registrable under the
eeparability test, and others will be
unregietrable in all respects.
Dated: October 29,1991.
Ralph Omen,
Rqister ofCopyrights.
Approved:
JuamH.Billinston,
The Libmnnanof Con~reas.
[FR Doc. 81-28829 Filed 1 1 a : 8:45 em]
*WQ CO# 1 4 1 W - U

3