17 U.S.C. § 101

Section 101 defines a useful article as one with an intrinsic utilitarian function, a definition the court applies to include living quarters such as a house.

Demetriades v. Kaufmann · filed 1988-03-08

A "useful article” is one defined as having "an intrinsic utilitarian function.” 17 U.S.C. § 101 (1982). Such a definition necessarily includes living quarters.

Section 101 denies copyright protection to a useful article's design unless its pictorial, graphic, or sculptural features can be identified separately from and exist independently of the article's utilitarian aspects.

Beverly Hills Design Studio (N.Y.) Inc. v. Morris · filed 1989-05-31

Section 101 defines a “useful article” as “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” It further provides that “the design of a useful article ... shall be considered a pictorial, graphic, or sculptural work [subject to copyright protection under Section 102] 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.” ... These patterns were used to cut fabric for the manufacture of garments. They did not reflect Brooks’ “artistic judgment exercised independently of functional influences”, but were functional products not eligible for copyright protection.

Section 101's useful-article rule excludes intrinsic utilitarian features from copyright protection unless artistic features are separable, while a compilation's original selection, coordination, or arrangement may be protected even when its individual elements are not.

Harper House, Inc. v. Thomas Nelson, Inc. · filed 1989-10-31

The 1976 Copyright Act’s useful article rule does not affect the copyrightability of an integrated work of text and blank forms, but only that of pictorial, graphic, or sculptural works. ... A copyrightable compilation can consist mainly or entirely of uncopyrightable elements. ... As copyrightable compilations, the organizers’ selection, coordination, and arrangement are protect-able. The text of the instructions is also protectable. Nevertheless, the blank forms and common property contained within the organizers are excluded from protection. Non-textual utilitarian elements of the design such as the binder, pockets, ruler, and blank or ruled paper are also excluded from protection by the “useful article” rule.

Section 101 denies copyright protection to a useful article’s design unless its pictorial, graphic, or sculptural features can be identified separately from and exist independently of the article’s utilitarian aspects.

Ellison Educational Equipment, Inc. v. Accu-Cut System, Inc. · filed 1991-03-13

However, 17 U.S.C. § 101 provides that “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.” ... The Court finds that the shapes in this case do not possess artistic or aesthetic features which are physically or conceptually different from their utilitarian function. Although the shapes can be said to have artistic and aesthetic features, they are inextricably intertwined with the utilitarian function and are therefore not entitled to copyright protection.

Section 101's useful-article limitation does not bar protection for design choices that are separable from purely functional considerations.

Laureyssens v. Idea Group, Inc. · filed 1991-08-02

Here the evidence clearly establishes that Laureyssens exercised his creative judgment in selecting only those pieces which he believed had the proper “balance” for his puzzles. The evidence also establishes that there are many alternatives to Laureyssens’ pieces which can be used to form a flat to cube puzzle, therefore Laureyssens’ selection of his pieces was clearly separate from purely functional considerations, and is entitled to protection.

Section 101 excludes utilitarian features from sculptural-work protection when they cannot be identified separately from and exist independently of their utilitarian functions.

Little Souls, Inc. v. Petits · filed 1992-03-19

Neither the construction of the arm hole nor the unadorned face structure of plaintiff's dolls are sculptural features that can be identified separately from, and that are capable of existing independently of, their utilitarian functions.

Section 101's separability rule can be satisfied either physically or conceptually when artistic features of a useful article are independently identifiable.

Pivot Point International, Inc. v. Charlene Products, Inc. · filed 1993-03-10

The separability rule may be satisfied either physically or conceptually.

Section 101 excludes an article from the useful-article definition when its utilitarian function is merely to portray an appearance; animal forms used to mount skins therefore are not useful articles.

Superior Form Builders v. Dan Chase Taxidermy Supply Co. · filed 1994-05-10

According to the Copyright Act, a useful article “is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” 17 U.S.C. § 101. In this case, the usefulness of the forms is their portrayal of the appearance of animals. Therefore, the forms by definition are not useful articles.

Section 101 excludes an article whose function is merely to portray its appearance from the useful-article category, while separately allowing copyright for separable artistic features.

Hart v. Dan Chase Taxidermy Supply Co., Inc. · filed 1995-05-17

Viewed in this manner, animal mannequins used for taxidermy generally would not be “useful articles” as that term is used in The Copyright Act.

Section 101 excludes an article from the useful-article bar when its utilitarian function is merely to portray the article's appearance, so a fish mannequin can qualify as a copyrightable sculptural work.

Hart v. Dan Chase Taxidermy Supply Co. · filed 1996-06-26

We conclude that fish mannequins, even if considered “useful articles,” are useful insofar as they “portray the[ir] appearance.” 17 U.S.C. § 101. That makes them copyrightable.

Section 101 defines a useful article as an article with an intrinsic utilitarian function that is not merely to portray its appearance or convey information.

Langman Fabrics v. Samsung America, Inc. · filed 1997-07-02

A “useful article” is “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” 17 U.S.C. § 101. ... Since fabric design is not considered a useful article for purposes of the copyright laws, plaintiffs notice on “Pattern No. L-303 Plume” is insufficient.

Section 101 defines a useful article as one with an intrinsic utilitarian function beyond merely portraying its appearance or conveying information.

Donald Bruce & Co. v. B. H. Multi Com Corp. · filed 1997-05-15

A useful article, however, is defined as “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” 17 U.S.C. § 101. Thus, defendant’s argument is applicable only if the' Ring is first determined to be a useful article under § 101. If a sculptural work is not a useful article because its sole utilitarian function is to portray the appearance of the article, then it remains copyrightable under 17 U.S.C. § 102(a)(5), and the court need not analyze whether its utilitarian function is separable from the work’s sculptural elements. 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.

Section 101 requires a derivative work to be based on a copyrightable preexisting work, and protects a useful article as a pictorial, graphic, or sculptural work only to the extent that its artistic features are separable from and independently capable of existing apart from its utilitarian aspects.

Ets-Hokin v. Skyy Spirits, Inc. · filed 2000-08-18

Under the Copyright Act, a work is not a “derivative work” unless it is “based upon one or more preexisting works” and, in order to qualify as a “preexisting work,” the underlying work must be copyrightable. ... Under the Copyright Act, the design of a useful article, such as a bottle, is not protected unless the design includes features that exist separately from utilitarian ones: ... Because Ets-Ho-kin’s product shots are shots of the bottle as a whole-a useful article not subject to copyright protection-and not shots merely, or even mainly, of its label, we hold that the bottle does not qualify as a “preexisting work” within the meaning of the Copyright Act. As such, the photos Ets-Hokin took of the bottle cannot be derivative works.

Section 101 excludes clothing designs from protection when their artistic features are inseparable from the garments' utilitarian aspects.

Morris v. Buffalo Chips Bootery, Inc. · filed 2001-09-07

the artistic and the functional elements of plaintiffs designs are inextricably interwoven in the articles of clothing in which they appear.

Section 101 treats an article with clothing utility as a useful article, but permits copyright protection for its sculptural features when they are physically or conceptually separable from that utility.

Celebration International, Inc. v. Chosun International, Inc. · filed 2002-12-12

Because it has the same utility as clothing, the Celebration tiger costume is a “useful article” as defined by the Act. Useful articles are only protected by the Act if the sculptural features of the work are separable from the utilitarian aspects of the article. The sculptural aspects of the Celebration tiger are both physically and conceptually separable from the utilitarian function of the costume. Therefore, the Celebration tiger is copyrightable.

Section 101 protects a useful article's design only to the extent that its pictorial, graphic, or sculptural features can be identified separately from and exist independently of the article's utilitarian aspects.

Lamps Plus, Inc. v. Seattle Lighting Fixture Co. · filed 2003-10-06

Lamps Plus’s mechanical combination of four preexisting ceiling-lamp elements with a preexisting table-lamp base did not result in the expression of an original work of authorship as required by § 101. Lamps Plus did not create any of the “design ... features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects” of any of the lamp’s component parts. 17 U.S.C. § 101.

Section 101 limits copyright protection for a useful article to pictorial, graphic, or sculptural features that can be identified separately from and exist independently of the article's utilitarian aspects.

Pivot Point Int'l v. Charlene Products · filed 2004-06-25

Conceptual separability exists, therefore, when the artistic aspects of an article can be “conceptualized as existing independently of their utilitarian function.” Carol Barnhart, 773 F.2d at 418. This independence is necessarily informed by “whether the design elements can be identified as reflecting the designer’s artistic judgment exercised independently of functional influences.” Brandir, 834 F.3d at 1145. If the elements do reflect the independent, artistic judgment of the designer, conceptual separability exists. Conversely, when the design of a useful article is “as much the result of utilitarian pressures as aesthetic choices,” id. at 1147, the useful and aesthetic elements are not conceptually separable.

Section 101 permits copyright protection for a useful article's artistic features when they reflect independent artistic judgment rather than utilitarian pressures.

Pivot Point International, Incorporated, Cross-Appellee v. Charlene Products, Incorporated and Peter Yau · filed 2004-08-10

If the elements do reflect the independent, artistic judgment of the designer, conceptual separability exists.

Section 101 does not exclude an information-conveying taxonomy from copyright eligibility as a useful article when the taxonomy is neither pictorial, graphic, nor sculptural.

ATC Distribution Group, Inc. v. Whatever It Takes Transmissions & Parts, Inc. · filed 2005-03-30

The district court disagreed with American Dental’s holding that taxonomies can be copyrighted, on the ground that they are “useful articles” excluded from copyright protection by 17 U.S.C. § 101. However section 101 only limits the extent to which useful articles can receive copyright protection in the context of “[p]ictorial, graphic, and sculptural works,” and further defines a useful article as an article that has a function other than conveying information. As such, the usefulness of a taxonomy, which is intended to convey information, and which is neither pictorial, graphic, nor sculptural, does not preclude its being eligible for copyright protection under section 101.

Section 101 treats an article as a useful article when its intrinsic utilitarian function is not merely to portray its appearance or convey information, and copyright protection extends only to separable artistic features.

Bonazoli v. R.S.V.P. International, Inc. · filed 2005-01-18

Measuring spoons are clearly useful articles. Thus, the copyrightability of Plaintiffs spoons turns on the separability, if any, of the spoons’ artistic aspects.

Section 101 excludes a useful article's design from pictorial, graphic, or sculptural protection unless its artistic features can be identified separately from and exist independently of its utilitarian aspects.

Incredible Tech v. Virtual Tech Inc · filed 2005-03-15

The design of a useful article is 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.”

Section 101 defines a useful article by its intrinsic utilitarian function, so clothing serving only to differentiate appearance is not a useful article.

Boyds Collection, Ltd. v. Bearington Collection, Inc. · filed 2005-04-15

It has no independent “utilitarian function” and is not a “useful article.”

Section 101 excludes useful articles as a whole from copyright protection but permits copyright protection for pictorial, graphic, or sculptural features that are physically or conceptually separable from and capable of existing independently of the article's utilitarian aspects.

Chosun International, Inc. v. Chrisha Creations, Ltd. · filed 2005-06-30

The Act, however, excludes any "useful article"—defined as "an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information"—from copyright eligibility. ... Specifically, if a useful article incorporates a design element that is physically or conceptually separable from the underlying product, the element is eligible for copyright protection. See 17 U.S.C. § 101 ("[T]he design of a useful article, as defined in this section, 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.") (emphasis added).

Section 101 permits copyright protection for a useful article's pictorial, graphic, or sculptural features only when they can be identified separately from and exist independently of the article's utilitarian aspects; decorative lace and embroidery accents on clothing can satisfy that standard.

EXPRESS, LLC v. Fetish Group, Inc. · filed 2006-03-24

The design of a useful article, however, is entitled to protection “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. ... In this case, the utilitarian functions of the GH268 Tunic cannot be protected by copyright. However, because the lace and embroidery accents are totally irrelevant to the utilitarian functions of the tunic, those aspects of the GH268 Tunic are copyrightable. ... Thus, the placement, arrangement, and look of the lace trim on the GH268 Tunic are copyrightable.

Section 101 limits copyright protection for a useful article to artistic features that can be separated physically or conceptually from its functional features.

Spinmaster, Ltd. v. OVERBREAK LLC · filed 2005-12-16

Once an item is considered useful, it may only be copyrighted as a pictorial, graphic or sculptural work to .the extent that those features can be separated from the functional features.

Section 101 excludes useful articles such as furniture from copyright protection as a whole, while allowing separable design elements and treating a compilation as protectable only if it is an original work conceptually separable from the article's functionality.

Universal Furniture International, Inc. v. Collezione Europa USA, Inc. · filed 2006-08-29

Under the Copyright Act (“Act”), “useful articles” as a whole, such as furniture, are not eligible for copyright protection, but individual design elements may be eligible only if, and only to the extent that they “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” 17 U.S.C. § 101. This test is known as the conceptual separability test. ... We find that the definition of compilation in 17 U.S.C. § 101 does not constitute a separate category eligible for copyright protection independently of Sections 102 and 103. A reading of sections 101 through 103 of the Act clarifies that “copyright protection subsists ... in original works of authorship ... [including] pictorial, graphic, and sculptural works,” including compilations that meet the definition of “works of authorship.” Therefore, a compilation of design elements on furniture is not copyrightable if it is not an original work conceptually separable from the useful article’s functionality.

Section 101 treats a useful article as a sculptural work only to the extent its design includes sculptural features that can be identified separately from and exist independently of the article’s utilitarian aspects.

Lucky Break Wishbone Corp. v. Sears, Roebuck & Co. · filed 2007-12-04

However, utilitarian aspects of sculptural works are not copyrightable: Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article . . . shall be considered a . . . sculptural work only if, and only to the extent that, such design incorporates . . . sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article. Id. ... The design of the Lucky Break Wishbone incorporates sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article. Accordingly, the Court GRANTS Plaintiff's summary judgment motion, and DENIES Defendants' summary judgment motion, on the issues of originality and utility, and holds that Lucky Break owns a valid copyright [9] in the Lucky Break Wishbone.

Section 101 excludes a work with an intrinsic utilitarian function from copyright protection unless its pictorial, graphic, or sculptural features can be identified separately from and exist independently of its utilitarian aspects.

Lanard Toys Ltd. v. Novelty, Inc. · filed 2007-02-08

Only those toys which qualify as pictorial, graphic or sculptural works are subject to copyright protection. ... Pictorial, graphic or sculptural works include “two-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.” 17 U.S.C. § 101. However, if the work has “an intrinsic utilitarian function that is not merely to portray the appearance of the article,” the work is not protected by copyright law unless “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.

Section 101 defines a useful article by its intrinsic utilitarian function; a design drawing whose intrinsic purpose is to convey information is not a useful article under the Act.

Gusler v. Fischer · filed 2008-09-29

The Copyright Act defines a useful article as “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” 17 U.S.C. § 101. ... As the intrinsic purpose of a design drawing is merely to convey information, the drawing itself is not a useful article under the Act.

Section 101 defines a useful article as one with an intrinsic utilitarian function beyond merely portraying an article's appearance or conveying information; the court held these product images were not useful articles because their function was to portray perfume bottles or convey product information.

Fragrancenet. Com, Inc. v. Fragrancex. Com, Inc. · filed 2010-01-14

The Copyright Act defines "useful articles" as those articles "having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information." 17 U.S.C. § 101 (emphasis added). These images are not useful articles because their "function," as alleged by defendant, is to portray the appearance of the perfume bottles or to convey information about the products for sale.

Section 101 limits copyright protection for useful articles to sculptural elements that can be identified separately from and can exist independently of the article's utilitarian aspects.

Jonathan Browning, Inc. v. Venetian Casino Resort LLC · filed 2009-10-06

Only sculptural elements that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article receive copyright protection.

Section 101 treats an article as “useful” only when it has an intrinsic utilitarian function apart from its expression or appearance.

Mattel, Inc. v. MGA Entertainment, Inc. · filed 2010-07-22

Copyright law doesn’t protect “useful articles” that have an “intrinsic utilitarian function” apart from their expression or appearance. See 17 U.S.C. §§ 101, 102(a)(5). Human clothing is considered utilitarian and unprotectable. See Poe v. Missing Persons, 745 F.2d 1238, 1242 (9th Cir. 1984). However, articles that are intended only to portray the appearance of clothing are protectable. Id. Dolls don’t feel cold or worry about modesty. The fashions they wear have no utilitarian function.

Section 101’s useful-article definition excludes articles with an intrinsic utilitarian function apart from their expression or appearance; doll clothing intended only to portray clothing has no such function and is protectable.

Mga Entertainment, Inc. v. Mattel, Inc. · filed 2010-07-22

Copyright law doesn’t protect “useful articles” that have an “intrinsic utilitarian function” apart from their expression or appearance. See 17 U.S.C. §§ 101, 102(a)(5). Human clothing is considered utilitarian and unprotectable. See Poe v. Missing Persons, 745 F.2d 1238, 1242 (9th Cir. 1984). However, articles that are intended only to portray the appearance of clothing are protectable. Id. Dolls don’t feel cold or worry about modesty. The fashions they wear have no utilitarian function. Cf. Masquerade Novelty v. Unique Indus., 912 F.2d 663, 670-71 (3d Cir. 1990) (animal nose masks have no utilitarian function apart from portraying appearance of animal nose); Gay Toys, Inc. v. Buddy L Corp., 703 F.2d 970, 973 (6th Cir. 1983) (toy airplane merely portrays appearance of actual airplane and has no utilitarian function). Even if we were to defer to the letter from the Copyright Office saying that doll clothing isn’t protected, as MGA argues we should, the letter’s interpretation is obviously wrong.

Section 101 permits copyright protection for decorative pictorial, graphic, or sculptural features of a useful article when they can be identified separately from and exist independently of the article’s utilitarian aspects.

Universal Furniture International, Inc. v. Collezione Europa USA, Inc. · filed 2010-08-24

"[T]he design of a useful article . . . shall be considered . . . a 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." Id. § 101. ... Synthesizing these principles, we are compelled to reach the same conclusion as the district court: the decorative elements on Universal’s GIC and EMC are conceptually separable from the furniture’s utilitarian aspects. ... The designs can therefore be "identified separately from" the utilitarian aspects of the furniture. 17 U.S.C. § 101. ... However, the conceptual separability test is a conjunctive one: the decorative elements adorning the GIC and EMC lines must be capable of separate identification from the utilitarian aspects of the furniture, and they must be capable of "existing independently of, the utilitarian aspects of the [furniture.]" 17 U.S.C. § 101. ... Because the GIC and EMC designs are original and conceptually separable from the utilitarian aspects of the furniture, we agree with the district court that the compilation of design elements on the EMC and GIC lines are entitled to copyright protection.

Section 101’s useful-article rule leaves articles unprotected when they have an intrinsic utilitarian function apart from their appearance or expression, but protects articles made only to portray appearance.

Mga Entertainment, Inc. v. Mattel, Inc. · filed 2010-10-21

“Copyright law doesn’t protect “useful articles” that have an “intrinsic utilitarian function” apart from their expression or appearance. See 17 U.S.C. §§ 101, 102(a)(5). ... However, articles that are intended only to portray the appearance of clothing are protectable. Id. Dolls don’t feel cold or worry about modesty. The fashions they wear have no utilitarian function.”

Section 101 excludes useful articles from copyright protection except for pictorial, graphic, or sculptural features that are separately identifiable and capable of existing independently of the article’s utilitarian aspects.

Billco International, Inc. v. Charles Products, Inc. · filed 2011-03-07

Only the decorative elements that are separable from the utilitarian aspects are entitled to copyright protection.

Section 101 generally excludes useful articles such as clothing from copyright protection, but protects pictorial, graphic, or sculptural features that are physically or conceptually separable from the article’s utilitarian aspects.

Jovani Fashion, Ltd. v. Cinderella Divine, Inc. · filed 2011-07-07

Useful articles, by contrast, are explicitly excluded from protection, except to the extent that their features are separable from their utilitarian aspects.

Section 101 protects design features of a useful article only when they can be identified separately from and exist independently of the article’s utilitarian aspects, and defines a useful article by intrinsic utilitarian function.

Pan-American Products & Holdings, LLC v. R.T.G. Furniture Corp. · filed 2011-11-14

A “useful article” is one “having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally part of a useful article is considered a ‘useful article.’ ” 17 U.S.C. § 101. In making this determination, a court is called upon to determine, first, if the designs are conceptually separable from the utilitarian aspects of furniture and, second, whether such separable designs are entitled to copyright protection. ... Thus, to establish a valid copyright in this case Pan-American must show that the Retro Collection designs are “(1) original and (2) conceptually separable from the utilitarian aspects of the furniture.”

Section 101 excludes useful articles from copyright protection except for pictorial, graphic, or sculptural features that can be identified separately from and exist independently of the article’s utilitarian aspects.

Lego A/S v. Best-Lock Construction Toys, Inc. · filed 2012-07-11

The design of a useful article is considered a pictorial, graphic or sculptural work “only if, and 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.” § 101.

Section 101 protects clothing design elements only when they are physically or conceptually separable from the garment's utilitarian function.

Jovani Fashion, Ltd. v. Fiesta Fashions · filed 2012-10-15

We have construed 17 U.S.C. § 101 to afford protection to design elements of clothing only when those elements, individually or together, are separable—“physically or conceptually”—from the garment itself. ... Physical separability can be shown where one or more decorative elements “can actually be removed from the original item and separately sold, without adversely impacting the article’s functionality.”

Section 101 treats a useful article's design as a copyrightable pictorial, graphic, or sculptural work only when its artistic features can be identified separately from and exist independently of the article's utilitarian aspects.

Heptagon Creations Ltd. v. Core Group Marketing LLC · filed 2013-01-11

Copyright protection does not extend to “useful articles,” but individual design elements that comprise a portion of a utilitarian article may be eligible for copyright protection if the design element is either physically or conceptually separable from the article’s functional elements. ... see also 17 U.S.C. § 101 (“[T]he design of a useful article, as defined in this section, 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.”). ... Additionally, the complaint does not plausibly allege facts indicating that the furniture contains design elements that are conceptually separable from the furniture’s utilitarian functions.

Section 101 permits copyright protection for artistic features of a useful article when they can be identified separately from and exist independently of the article's utilitarian aspects.

DC Comics v. Towle · filed 2013-02-07

Thus, the Court finds that the Batmobile is subject to copyright protection.

Section 101 excludes a useful article's design from copyrightable pictorial, graphic, or sculptural works unless its artistic features can be identified separately from and exist independently of the article's utilitarian aspects.

Khatib v. Sun-Times Media Group, Inc. (In re Chicago Newspaper Liquidation Corp.) · filed 2013-04-03

the design of a useful article, as defined in this section, shall be considered a [PGS] work only if, and only to the extent that, such design incorporates [PGS] features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.

Section 101 protects the design of a useful article only insofar as it contains sculptural features that can be identified separately from and exist independently of the article’s utilitarian aspects.

Inhale, Inc. v. Starbuzz Tobacco, Inc. · filed 2014-01-09

The parties agree that Inhale’s hookah water container is a “useful article.” As “the design of a useful article,” the shape of the container is copyrightable “only if, and only to the extent that, [it] incorporates ... sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the” container. ... Because the Copyright Office’s reasoning is persuasive, we adopt it for this case. The shape of a container is not independent of the container’s utilitarian function — to hold the contents within its shape — because the shape accomplishes the function. The district court correctly concluded that the shape of Inhale’s hookah water container is not copyrightable.

Section 101 denies copyright protection to mechanical or utilitarian aspects of a pictorial or graphic work unless its pictorial, graphic, or sculptural features are separately identifiable and capable of existing independently of the article’s utilitarian aspects.

Ward v. Andrews McMeel Publishing, LLC · filed 2013-08-01

There are no such protectable features in the scratch-off lettering.

Section 101 limits copyright protection for a useful article’s design to pictorial, graphic, or sculptural features that can be identified separately from and exist independently of the article’s utilitarian aspects, and defines a useful article by its intrinsic utilitarian function.

Progressive Lighting, Inc. v. Lowe's Home Centers, Inc. · filed 2013-12-16

Therefore, conceptual separability does not apply.

Section 101 denies copyright protection to the utilitarian shape of a useful container unless it incorporates sculptural features identifiable separately from and capable of existing independently of the container’s utilitarian aspects.

Inhale, Inc. v. Starbuzz Tobacco, Inc. · filed 2014-06-03

As “the design of a useful article,” the shape of the container is copyrightable “only if, and only to the extent that, [it] incorporates . . . sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the” container. 17 U.S.C. § 101 (defining “[p]ictorial, graphic, and sculptural works”); ... In summary, we hold that any part of a container that merely accomplishes the containing is not copyrightable. We do not mean to suggest that, in some other case, no elements of a container “can be identified separately from, and are capable of existing independently of,” the container. 17 U.S.C. § 101.

Section 101 defines a useful article by its intrinsic utilitarian function and permits copyright protection for its design only when pictorial, graphic, or sculptural features are separately identifiable and independently capable of existing apart from the article’s utilitarian aspects.

Home Legend, LLC v. Mannington Mills, Inc. · filed 2014-07-03

“The design of a useful article is 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.’ ... Here, the 2-D artwork element of the laminate flooring simply is not separable from the functional element of the flooring. ... Under those circumstances, the artwork portion of the laminate flooring is a functional component of the flooring itself, and the artwork is not conceptually separable from the flooring as a whole. ... Under those circumstances, copyright protection is not available for the 2-D artwork at issue.”

Section 101 denies copyright protection to a useful article’s features that merely perform its utilitarian function and protects only sculptural features identifiable separately from and capable of existing independently of that function.

Inhale, Inc. v. Starbuzz Tobacco, Inc. · filed 2014-07-09

In summary, we hold that any part of a container that merely accomplishes the containing is not copyrightable. We do not mean to suggest that, in some other case, no elements of a container “can be identified separately from, and are capable of existing independently of,” the container. 17 U.S.C. § 101.

Section 101 treats an article with an intrinsic utilitarian function as a useful article, so the article itself is not copyrightable except for artistic features that can be identified separately and exist independently as a work of art.

Omega S.A. v. Costco Wholesale Corporation · filed 2015-01-20

“ ‘[u]seful articles’ that have an ‘intrinsic utilitarian function’ apart from their expression or appearance” are not copyrightable. ... Because Omega’s watches are useful articles, they are not copyrightable, with some possible exceptions not before us.

Section 101 permits copyright protection for pictorial, graphic, or sculptural features of a useful article when they can be identified separately from and can exist independently of the article’s utilitarian aspects, including through conceptual separability.

Varsity Brands, Inc. v. Star Athletica, LLC · filed 2015-08-19

Therefore, we hold that the Copyright Act protects the “pictorial, graphic, or sculptural features” of a design of a useful article even if those features cannot be removed physically from the useful article, as long as they are conceptually separable from the utilitarian aspects of the article. ... Because we conclude that the graphic features of Varsity’s designs “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of [cheerleading uniforms],” we hold that Varsity’s graphic designs are copyrightable subject matter. 17 U.S.C. § 101.

Section 101's useful-article definition excludes technical drawings because their intrinsic function is to convey information rather than serve a utilitarian function.

Tecnoglass, LLC v. RC Home Showcase, Inc. · filed 2017-02-10

This statutory definition of "useful article" thus excludes technical drawings.

Section 101 permits copyright protection for artistic features of a useful article when they are separately identifiable and capable of existing independently; the court found the seat-cover designs met separate identification.

DAY TO DAY IMPORTS, INC. v. FH GROUP INTERNATIONAL, INC. · filed 2019-07-02

Thus, the Copyrighted Designs meet the “separate identification” element.

Section 101 protects a useful article’s design only to the extent that its pictorial, graphic, or sculptural features can be identified separately from and exist independently of the article’s utilitarian aspects.

Lego A/S v. Best-Lock Construction Toys, Inc. · filed 2019-07-25

Useful articles, however, which have a "intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information," are protected "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." Id. § 101. ... Alternatively, a design may evince "conceptual" separability, meaning that it has identifiable features that were designed independent of functional considerations and which are capable of existing apart from the useful article. Id. ... Merely having some incidental effect on the nature of that movement, without more, does not make an element "functional." ... The shape of the torso is therefore sculptural.

Section 101 allows copyright protection for pictorial, graphic, or sculptural features of a useful article when those features can be identified separately from and can exist independently of the article’s utilitarian aspects.

Silvertop Associates Inc v. Kangaroo Manfacturing Inc · filed 2019-08-01

A special rule applies to “useful article[s],” i.e., those which have “an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” Id. (quoting 17 U.S.C. § 101). Without more, they may not receive protection as such. Id. Instead, useful articles that “incorporate[] pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article” may be eligible for protection of those features alone. Id. (quoting 17 U.S.C. § 101). Thus, separability analysis determines whether a useful article contains copyrightable features. ... We therefore hold that the banana costume’s combination of colors, lines, shape, and length (i.e., its artistic features) are both separable and capable of independent existence, and thus are copyrightable.

Section 101 treats an article with an intrinsic utilitarian function, including a part normally included in a useful article, as a useful article; such a feature is not copyrightable unless it can exist independently of the article's utilitarian aspects.

TOWN & COUNTRY LINEN CORP. and TOWN & COUNTRY HOLDINGS, INC. v. INGENIOUS DESIGNS LLC · filed 2020-01-29

“A ‘useful article’ is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a ‘useful article’.” 17 U.S.C. § 101. ... Plaintiffs’ copyrighted work is a control panel, providing the means by which the CloseDrier is operated; it includes an ON/OFF button, a START button and a MODE button, along with additional features to permit ease of operation such as lights indicating the selected mode, and + and – buttons to control the timer. Although the control panel “can be identified separately from” the CloseDrier, see id. at 1010, it is not “capable of existing independently of” “the utilitarian aspects” of the CloseDrier because the control panel itself is a utilitarian aspect of the CloseDrier. Id. at 1008, 1010 (“Of course, to qualify as a pictorial, graphic, or sculptural work on its own, the feature cannot itself be a useful article or ‘[a]n article that is normally a part of a useful article’ (which is itself considered a useful article).”). The control panel is therefore not copyrightable.

Section 101 treats an article with an intrinsic utilitarian function as a useful article and permits copyright protection for its design only insofar as pictorial, graphic, or sculptural features are separately identifiable from and capable of existing independently of the article’s utilitarian aspects.

Lanard Toys Limited v. Dolgencorp LLC · filed 2020-05-14

As the district court found, Lanard’s ’458 copyright for a “Pencil/Chalk Holder” has an intrinsic utilitarian function—storing and holding chalk and facilitating writing or drawing—which makes it a useful article under the Copyright Act. See Decision, 2019 WL 1304290, at *21–23; 17 U.S.C. § 101. Thus, as the district court noted, the pertinent question is whether the copyright incorporates features that are sufficiently “separable” from the utilitarian aspects of the article to be eligible for copyright protection. ... We agree with Appellees. In attempting to identify separable features, “the feature cannot itself be a useful article.” ... Here, Lanard’s ’458 copyright is for the chalk holder itself, and Lanard’s arguments in the district court and in this appeal merely confirm that it seeks protection for the dimensions and shape of the useful article itself. Because the chalk holder itself is not copyright protectable, Lanard cannot demonstrate that it holds a valid copyright.

Section 101 treats a work as a sculptural work rather than a useful article when it lacks an intrinsic utilitarian function, and protects sculptural features of a useful article when they are separately identifiable and capable of existing independently of its utilitarian aspects.

Hayden v. Koons · filed 2022-07-18

Section 101 provides that sculptural works “include . . . three-dimensional works of fine, graphic, and applied art . . . [and] works of artistic craftmanship insofar as their form but not their mechanical or utilitarian aspects are concerned[.]” 17 U.S.C. § 101. In contrast, a “useful article is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” Id. ... Here, the Original Work is a large, original sculpture depicting a giant serpent wrapped around a rock. Taken as a whole, the Original Work is a sculptural work of artistic craftmanship, lacking any readily ascertainable intrinsic utilitarian function. The fact that the Original Work -- by virtue of a relatively flat surface in its center -- may be used in a functional manner as a platform is not dispositive. ... Even if the Original Work were considered a useful article under the theory that the flat portion of the Original Work has an intrinsic utilitarian function, it is copyrightable under a separability analysis. ... Here, the sculptural serpentine features are clearly discernible and can be identified separately from the rock base of the Original Work. Given the intricate design, detail and craftmanship, the serpentine portion of the Original Work could exist as its own sculptural work separate from the rock boulder or platform upon which it sits.

Section 101’s separability limitation applies to foreign works protected through the Berne Convention; copyright protection for a useful article extends only to separable pictorial, graphic, or sculptural features.

Molnarova v. Swamp Witches Inc. LLC · filed 2024-09-16

Accordingly, whether Slovakia copyright law contemplates the separability limitation imposed by 17 U.S.C. § 101 is irrelevant. The separability limitation still applies to an action arising under the Berne Convention.

Section 101 requires an artistic feature of a useful article to be separately identifiable and capable of independent existence as pictorial, graphic, or sculptural art to receive copyright protection.

Star Athletica, L. L. C. v. Varsity Brands, Inc. · filed 2017-03-22

The independent-existence requirement is ordinarily more difficult to satisfy. ... In other words, the feature must be able to exist as its own pictorial, graphic, or sculptural work as defined in §101 once it is imagined apart from the useful article.

Section 101 limits copyright protection for a useful article’s design to features separable from its utilitarian aspects.

Williams Electronics, Inc. v. Bally Manufacturing Corp. · filed 1983-04-20

In essence, this test means that copyright protects only those elements superfluous to the functional aspects of the article; if the element is a part of the utilitarian aspect of the article the test of separability cannot be satisfied.

Section 101 protects design features of useful articles only when they are separable from the articles’ utilitarian aspects; the fit of leggings is not separable.

Elastic Wonder, Inc. v. Posey · filed 2016-04-12

It is the functional purpose of covering the body in an attractive and comfortable way that motivates the designs of fittings of certain shapes, and the utilitarian function of the leggings as clothing is primary over the ornamental aspect. The designs with regard to the fitting of clothing are therefore not copyrightable, and Posey cannot assert any copyright in such elements of the leggings.

Section 101 protects a useful article’s design only to the extent that its artistic features can be identified separately from, and exist independently of, its utilitarian features.

Ultraflo Corporation v. Pelican Tank Parts, Inc. · filed 2017-01-11

Section 101 further states that “the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work [that is, copyrightable] 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.” Id. Neither party disputes that the Model 390 butterfly valve design includes only utilitarian features and thus is not subject to copyright protection.

Section 101 allows copyright protection for features of a useful article that can be identified separately from and exist independently of its utilitarian aspects.

Silvertop Assocs., Inc. v. Kangaroo Mfg., Inc. · filed 2018-05-29

However, the Court finds the other features of the Banana Costume can be identified separately from and are capable of existing independently of the utilitarian aspects.

Section 101 protects artistic features of a useful article only when they can exist separately from its utilitarian aspects.

Ross v. Apple, Inc. · filed 2018-07-12

None of those elements can be conceived as a work of art separate from the Device itself but are necessary parts of it.

Section 101’s useful article definition does not exclude architectural plans from copyright protection because their intrinsic function is to convey construction information.

Linda D. Eales and Eales & Associates, Inc. v. Environmental Lifestyles, Inc., an Arizona Corporation Michael Shotey · filed 1992-05-11

It is settled law that architectural drawings and plans are thus eligible for protection under the copyright code as “pictorial, graphic, [or] sculptural works.” 17 U.S.C. §§ 101,102(a)(5); ... Eales’ plans are no exception to this general rule.

Section 101’s useful-article rule limits protection for inseparable design features of physical objects, but does not exclude drawings merely because they depict utilitarian objects.

Guillot-Vogt Associates, Inc. v. Holly & Smith · filed 1994-04-04

This provision stands for the proposition that certain design features of a physical article are not copyrightable if the design features cannot exist independently of the article. It does not stand for the proposition that the rendering of a utilitarian article is devoid of copyright protection.

Section 101 defines a useful article by its intrinsic utilitarian function; the article itself is not copyrightable, though conceptually separable artistic aspects may be.

Well-Made Toy Mfg. Corp. v. Goffa International Corp. · filed 2002-06-26

“Useful articles”, which are defined as “article[s] having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information”, 17 U.S.C. § 101, are not themselves copyrightable.

Section 101 permits copyright protection for artistic features of useful articles when the features can be identified separately from the articles’ utilitarian functions.

Collezione Europa U.S.A., Inc. v. Hillsdale House, Ltd. · filed 2003-02-06

At first glance, it is apparent that the pieces of furniture comprising the Bordeaux Collection are useful articles; that is, they have “an intrinsic utilitarian function,” 17 U.S.C. § 101, and are presumptively uncopyrightable. ... Because Collezione has produced nothing which calls into question this element of Hills-dale’s presumptively valid copyright claim, the court must conclude that the Bordeaux Collection would be equally useful without the sculpted leaf features. ... The court concludes that Hillsdale does indeed have a valid copyright in its Bordeaux Collection.

Section 101 treats picture frames as useful articles and protects their artistic features when those features can exist independently of the frames’ function.

Stanislawski v. Jordan · filed 2004-09-23

The frames at issue in this case are clearly “useful articles” within the meaning of the statute; frames are used to hold and display photographs. ... Applying the Pivot Point analysis to the present situation, the Court finds that certain elements of the Stanislawskis’ frames are certainly separable from the utilitarian functions of the frames.

Section 101 distinguishes copyrightable pictorial, graphic, and sculptural features from uncopyrightable useful articles when the features can exist separately from the article’s utilitarian aspects.

Lanard Toys Limited v. Novelty, Inc. · filed 2010-04-13

The determination whether a toy is a pictorial, graphic, or sculptural work, and not an uncopyrightable “useful article” is a fact-intensive one that must be decided on a case-by-case basis, and is properly submitted to the jury for resolution when there is a genuine factual dispute. ... We agree with the district court that substantial evidence supports the jury’s finding of valid copyrights in Lanard’s “Drop Copter” and the handle of the “Wild Copters” and “Stunt Plane” toys, and that appellants were not entitled to a judgment that those toys were, as a matter of law, uncopyrightable “useful articles” with no “pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”

Section 101 excludes articles with an intrinsic utilitarian function from copyright protection, while articles intended only to portray appearance are protectable.

Mattel, Inc. v. MGA Entertainment, Inc. · filed 2010-10-21

Copyright law doesn’t protect “useful articles” that have an “intrinsic utilitarian function” apart from their expression or appearance. See 17 U.S.C. §§ 101, 102(a)(5). Human clothing is considered utilitarian and unprotectable. See Poe v. Missing Persons, 745 F.2d 1238, 1242 (9th Cir. 1984). However, articles that are intended only to portray the appearance of clothing are protectable. Id. Dolls don’t feel cold or worry about modesty. The fashions they wear have no utilitarian function.

Section 101 defines useful articles by their intrinsic utilitarian function and protects their pictorial, graphic, or sculptural features only when those features are separable and independently capable of existing.

Design Ideas, Ltd. v. Yankee Candle Co. · filed 2012-08-09

A “ ‘useful article’ is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a ‘useful article’.” 17 U.S.C. § 101. Copyright law “excludes from its protection ‘useful articles,’ products that have an ‘intrinsic utilitarian function’ apart from appearance or expression.” Boyds Collection, 360 F.Supp.2d at 661, citing 17 U.S.C. §§ 101, 102(a)(5). If a work is determined to be a useful article, it falls within the definition of pictorial, graphic or sculptural works entitled to copyright protection “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.

Section 101’s useful-article test first asks whether the work is useful; a work that is not useful faces no useful-article bar to copyright protection.

Galiano v. Harrah's Operating Co. · filed 2005-07-08

The test for whether Gianna can copyright the designs proceeds in two steps. First, we must determine whether the asset for which the creator seeks copyright protection is a “useful” article. If it is not, there is no PGS bar to copyright protection.

Section 101 treats an article normally used as part of a useful article as useful; fabric intended for clothing qualifies.

Langman Fabrics v. Californiawear · filed 1998-11-09

The statutory definition of "useful article" includes its components: "An article that is normally a part of a useful article is considered a 'useful article.' " 17 U.S.C. § 101. Thus, the necessity of an item being incorporated in a larger article does not deprive it of "usefulness" under the statute.

Section 101(22)(1) covers works prepared by employees within the scope of employment, while § 101(22)(2) requires an expressly signed written work-for-hire agreement for specified commissioned works; at the pleading stage, allegations negating those conditions sufficiently plead that a work is not made for hire.

Estate of John Henry Alvin v. Heritage Auction Inc. · filed 2022-06-29(22)(1), (22)(2)

Here, the “work for hire” issue will best be resolved following discovery. Presently, the Court’s inquiry is limited to the allegations in the Third Amended Complaint. Plaintiffs have pleaded that Mr. Alvin was a freelance artist and not employed by Warner Brothers or by Intralink. Thus, the Third Amended Complaint adequately pleads that Mr. Alvin was not an employee, which is sufficient, at the pleading stage, for Plaintiffs to plead that the Artwork does not meet the “work-for-hire” definition under 17 U.S.C. § 101(22)(1). Plaintiffs have also alleged that the Artwork cannot be considered a “work-for-hire” under 17 U.S.C. § 101(22)(2) because Mr. Alvin did not enter into a written agreement with Warner Brothers or Intralink to create the Artwork as a work for hire and the Artwork was not part of a collective work. Again, such factual allegations, regarding the absence of a written agreement, are sufficient at this stage.

Section 101 includes a sculpture existing in a single copy within the definition of a work of visual art, but excludes works made for hire; a work made for hire includes employee work prepared within the scope of employment and certain specially commissioned works covered by a signed written agreement.

Carter v. Helmsley-Spear, Inc. · filed 1994-05-18

Plaintiffs have made a strong showing that the Work is a “work of visual art” as defined in 17 U.S.C. § 101. It is undisputed that the Work is a sculpture existing in a single copy. Defendants, however, contend that the Work is a “work made for hire.” Based on this contention, defendants argue that the Work is not a “work of visual art” because 17 U.S.C. § 101 defines works made for hire as not being “works of visual art.” ... Accordingly, defendants’ argument raises the question of whether plaintiffs were employees of the entities that commissioned the Work and, if they were, whether the Work was prepared within the scope of their employment. ... Based on the evidence in the record, I find that plaintiffs have made a strong showing that the Work is not a work made for hire. At a minimum, plaintiffs clearly have raised a sufficiently serious question going to the merits of their claims.

Section 101 limits works made for hire to its listed categories and requires an express signed writing for specially ordered or commissioned works; architectural plans are not within those categories.

Meltzer v. Zoller · filed 1981-08-17

In the instant case, plaintiff argues that the architectural plans of the Meltzer home are commissioned works for hire of which he is the author. However, plaintiff may not take advantage of the works for hire doctrine of authorship since architectural plans do not fall within one of the statutorily prescribed categories of work. Nor does there exist the requisite express written agreement between plaintiff and the architect designating the architectural plans as a work made for hire. 17 U.S.C. § 101. Instead, the only agreement evidenced in the record is an oral agreement between Xenco and the architect, Mr. Zito, pursuant to which the Chirgotis architectural firm was to be the author of the plans. Accordingly, any copyright interest which exists in the plans for the Meltzer home belongs to the Chirgotis architectural firm as preparers of the plans.

Section 101 defines a work made for hire as a work prepared by an employee within the scope of employment.

Town of Clarkstown v. Reeder · filed 1983-06-03

A “work made for hire” is defined as “a work prepared by an employee within the scope of his or her employment .... ” 17 U.S.C. § 101. ... The same facts that supported my determination that Reeder was a Clarkstown employee compel the conclusion that Reeder’s work on the Manual was part and parcel of his employment duties. ... I therefore find that because the Manual was drafted by a Clarkstown employee, Michael Reeder, within the purview of his employment, ... Clarkstown is the rightful owner of the copyright.

For a commissioned compilation to qualify as a work made for hire, the parties must expressly agree in a signed writing that it is a work made for hire.

Rand McNally & Co. v. Fleet Management Systems, Inc. · filed 1983-12-31

Section 101 defines a “work made for hire” as including works prepared by an employee within the scope of his or her employment. This relationship is neither alleged nor proved by Logistics Systems. A compilation “specifically ordered or commissioned” may also qualify as a work made for hire “if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” 17 U.S.C. § 101.

Section 101's 1976 work-for-hire provisions do not apply retroactively to a work created before the statute's effective date.

Everts v. Arkham House Publishers, Inc. · filed 1984-05-08

Although the parties rely on the work-for-hire provisions of the Copyright Act of 1976, found at 17 U.S.C. § 101 (1976), the Court believes the law developed under the earlier statute would be applicable to these facts because the work was created before the effective date of the new statute.

Section 101 treats a work as made for hire only if it falls within the listed commissioned-work categories or is prepared by an employee within the scope of employment.

Joseph J. Legat Architects, P.C. v. United States Development Corp. · filed 1985-11-25(2), (1)

Section 101 defines two types of situations, one where the work is “commissioned” and one for where it is done by an “employee within the scope of his ... employment.”

For the work-made-for-hire definition, an “employee” can include a non-regular contractor whose work is controlled and supervised by the hiring party in creating the work.

Evans Newton Inc. v. Chicago Systems Software · filed 1986-06-19

We find the Second Circuit’s analysis and conclusion compelling.

Section 101 treats a work prepared by an employee within the scope of employment as a work made for hire and deems sounds or images being transmitted fixed when recorded simultaneously with transmission.

Baltimore Orioles, Inc. v. Major League Baseball Players Association · filed 1986-10-29

A work made for hire is defined in pertinent part as "a work prepared by an employee within the scope of his or her employment." 17 U.S.C. Sec. 101. 4 Thus, an employer owns a copyright in a work if (1) the work satisfies the generally applicable requirements for copyrightability set forth in 17 U.S.C. Sec. 102(a), (2) the work was prepared by an employee, (3) the work was prepared within the scope of the employee's employment, and (4) the parties have not expressly agreed otherwise in a signed, written instrument. ... Section 101 expressly provides that "[a] work consisting of sounds, images, or both, that are being transmitted, is 'fixed' ... if a fixation of the work is being made simultaneously with its transmission." Since the telecasts of the games are videotaped at the same time that they are broadcast, the telecasts are fixed in tangible form.

Section 101 defines a work made for hire as work prepared by an employee within the scope of employment; preparation outside normal working hours or the employer’s facility does not alone remove it from that scope.

Marshall v. Miles Laboratories, Inc. · filed 1986-11-07

Further, a “work made for hire” is ... a work prepared by an employee within the scope of his or her employment; ... Neither case law nor the legislative history suggests that a person can avoid the “work made for hire” doctrine merely by preparing the work during non-working hours or in a facility not controlled by the employer. The mere fact that preparations were done outside an employee’s office or normal working hours does not remove such preparations from the scope of employment. ... Therefore, not merely contributions to but the creation of the entire article were clearly within the scope of the plaintiffs employment.

Section 101's work-made-for-hire provision does not cover these independently created slides because they were not works specially ordered or commissioned.

Vane v. the Fair, Inc. · filed 1987-06-09

Also, Plaintiff's slides were not “work[s] specially ordered or commissioned” within the purview of 17 U.S.C. § 101. Consequently, Plaintiff’s slides in controversy are not “works made for hire” within the meaning of the Copyright Act of 1976.

Section 101(1) covers only works produced by formal, salaried employees; works by independent contractors qualify as works made for hire only if the requirements of section 101(2) are satisfied.

Dumas v. Gommerman · filed 1989-01-13(1), (2)

We conclude that only works produced by formal, salaried employees are covered by 17 U.S.C. § 101(1). Works by independent contractors are works for hire only when the requirements of 17 U.S.C. § 101(2) are satisfied. Nagel was not an “employee” of D’Arcy or ITT for purposes of § 101(1). The ITT works do not meet the requirements of § 101(2). Therefore they are not “works made for hire.”

Section 101 defines a work made for hire as either a work prepared by an employee within the scope of employment or a specially commissioned work covered by an express written agreement stating that it is a work made for hire.

Banctraining Video Systems v. First American Corp. · filed 1992-03-03

Defendant also rebutted the presumption of authorship as a work made for hire project because the joint venture agreement does not meet the statutory requirements under 17 U.S.C. § 101 to create such an arrangement. The employer owns the copyright in a work made for hire arrangement. 17 U.S.C. § 201(b). A work made for hire arrangement requires either that an employee prepare the work or that the work be specially commissioned in an express written agreement by the parties that specifically states that the work is to be work made for hire. 17 U.S.C. § 101.

For a specially commissioned work to qualify as a work made for hire, it must fall within a listed category and be covered by a writing signed by both parties before creation; otherwise the creator owns it, unless it was made by an employee within the scope of employment.

Schiller & Schmidt, Incorporated v. Nordisco Corporation · filed 1992-07-23(2)

Bertel made the 18 photos, but Schiller owned the copyrights in them if they were “works for hire,” or if Bertel assigned the copyrights to Schiller. 17 U.S.C. §§ 101(1), (2), 201(b), (d). ... The statutory language is “signed by them,” 17 U.S.C. § 101(2), that is, by both parties, and it means what it says. ... The creator of the property is the owner, unless he is an employee creating the property within the scope of his employment or the parties have agreed in a writing signed by both that the person who commissioned the creation of the property is the owner. The writing must precede the creation of the property in order to serve its purpose of identifying the (noncreator) owner unequivocally. It did not precede it here.

Section 101(1) treats a work as made for hire when it is prepared by an employee within the scope of employment, with employee status determined under common-law agency principles.

Ed Marco v. Accent Publishing Co., Inc. · filed 1992-08-28(1)

The photographs in dispute would be classified as "made for hire" if they were "prepared by an employee within the scope of his or her employment...." 17 U.S.C.A. § 101(1) (definition). ... Application of the CCNV and the Restatement factors demonstrates that the district court erred in concluding that Marco was Accent's employee. Under the common law of agency, Marco was an independent contractor.

Section 101(2) requires a signed writing for a specially ordered or commissioned work to qualify as made for hire; because the plaintiff was not an employee and no such writing existed, he owned the finalized plat.

Schmidt v. Holy Cross Cemetery, Inc. · filed 1993-12-29(2)

Plaintiff was not an employee of Holy Cross Cemetery, Inc., nor did the par-ties enter a written agreement that could make plaintiffs finalized plat a specially-commissioned work.

Section 101 covers works made for hire and compilations whose selection, coordination, or arrangement makes the whole original; the court held the Manual was a work made for hire and Marshall’s tables were an original, protectible compilation because Marshall exercised judgment in selecting the figures.

Marshall & Swift v. BS & a SOFTWARE · filed 1994-06-09

The Manuals do have more than one author. However, this fact does not negate Marshalls claim of infringement. It is undisputed that the State and Marshall negotiated who would own the copyright to the Manual and that they agreed that Marshall would own the copyright to the cost tables. Under the circumstances, the Manual is a “work made for hire” under 17 U.S.C. §§ 101 and 201(b) and Marshall is the owner of the rights to the cost tables. ... A compilation is defined by the Copyright Act of 1976 as “a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” 17 U.S.C. § 101. ... The court therefore concludes that the defendants simply have not, as a matter of law, rebutted the presumption that the tables in the 1986 Manual contain original, protectible expression.

Section 101 treats a work prepared by an employee within the scope of employment as a work made for hire.

Trenton v. Infinity Broadcasting Corp. · filed 1994-09-06

A “work made for hire” is defined as “a work prepared by an employee within the scope of his or her employment.” 17 U.S.C. 101. Here, it is evident that (1) the copyrightable interest was created in the scope of plaintiff’s employment and (2) plaintiff does not plead the existence of any written agreement “expressly” naming him as owner of the programs. Pursuant to Section 201(b), therefore, the employer, Infinity L.A., is considered the author of the work and owns the copyright interest in the recorded programs.

Section 101 excludes applied art and strictly utilitarian objects from the definition of a work of visual art under VARA.

Carter v. Helmsley-Spear, Inc. · filed 1994-08-31

These items clearly are works of applied art or strictly utilitarian objects. Hence, these items are not works of visual art and are not protected by VARA.

Section 101 treats a work prepared by an employee within the scope of employment as made for hire; the court remanded for a finding on whether the writers were Waldman employees within that scope.

Waldman Publishing Corp. And Playmore Inc., Publishers v. Landoll, Inc., Martin Myers & James Landoll · filed 1994-12-22(1)

It is unclear from the record whether, as required by part one of the statute, some or all of the books were written by Waldman employees within the scope of their employment.

Section 101 treats a work as made for hire when an employee creates it while acting within the scope of employment, with scope assessed using common-law agency principles.

Avtec Systems, Incorporated v. Jeffrey G. Peiffer Kisak-Kisak, Incorporated Paul F. Kisak · filed 1995-09-13

The employer can show that a work is made for hire by establishing that it was (1) created by an employee (2) acting within the scope of the employment relationship. 17 U.S.C.A. Sec. 101 (West Supp.1995). ... The copyright statute does not itself define "scope of employment," but it is established that Congress intended to incorporate common law agency principles into the copyright statute. ... Consequently, to show that the creation of the .309 version of the Program was within the scope of Peiffer's employment, Avtec had to show that (1) the work was of the type for which Peiffer was hired to perform; (2) Peiffer's creation of the Program occurred "substantially within the authorized time and space limits" of his job; and (3) was "actuated, at least in part, by a purpose to serve" Avtec's interests. Avtec I, 21 F.3d at 571 (quoting Restatement (Second) of Agency Sec. 228).

Section 101 defines a work made for hire as either an employee's work prepared within the scope of employment or a specially ordered or commissioned work for specified statutory uses covered by an express written agreement signed by the parties.

Accusoft Corp. v. Palo · filed 1996-05-09

A “work made for hire” is defined in 17 U.S.C. § 101 as 1) a work prepared by an employee within the scope of his employment, or 2) a work specially ordered or commissioned for certain uses enumerated in the statute “if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” By Accusoft’s own admission, Palo was hired as an independent contractor, not an employee. Furthermore, there was no express written agreement that Palo’s work for Aeeusoft would be “work made for hire”. Therefore, Aeeusoft is not and cannot be made the “author” of those codes within the meaning of § 201 of the Copyright Act.

Section 101 defines a work made for hire as a work prepared by an employee within the scope of employment.

Mark L. Maness, Cross-Appellant/appellee v. Jimmie Heavrin, Appellant/cross-Appellee, Fun, Inc. · filed 1996-09-24

We conclude that the district court's findings are not clearly erroneous, and that, based on those findings, the district court correctly concluded the movie was a "work made for hire." See 17 U.S.C. § 101 ("work made for hire" is "a work prepared by an employee within the scope of his or her employment"); cf. Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-53 (1989) (under common law agency principles, sculptor was independent contractor and work was not "work made for hire," where sculptor supplied own tools, was in skilled profession, was unsupervised, was retained for less than two months, had absolute freedom of when and how long to work, had total discretion in hiring and paying assistants, sculpting was not regular business of hiring party, and hiring party did not pay payroll or social security taxes, provide benefits, or contribute to unemployment insurance or worker's compensation funds).

Section 101(1) treats a work prepared by an employee within the scope of employment as a work made for hire; employee status is determined using common-law agency principles.

Saenger Organization, Inc. v. Nationwide Insurance Licensing Associates, Inc. · filed 1997-07-18(1)

In this case, the parties agree that they did not sign a written instrument stating that the materials that Durkin prepared for Saenger would be considered works made for hire. Accordingly, Life and Property can be considered "works made for hire" only if they satisfy the requirements of section 101(1), that is, if they were prepared by Durkin within the scope of his employment with Saenger. ... Therefore, to the extent that Durkin was the actual author of Life and Property, either in part or in their entirety, under CCNV and 17 U.S.C. S 101, these works fall within the category of "works made for hire."

Section 101 treats a work created by an employee for the employer as a work made for hire, with the employer treated as the statutory author.

Eaton v. National Broadcasting Co. · filed 1997-08-19

Further, it is immaterial that neither Vallely nor Schmock were listed as authors on Witt Thomas' copyright application. Under the Copyright Act, when an employee creates a work for his or her employer as a so-called "work-made-for-hire,” the employer is deemed the "author” and the valid copyright holder. See 17 U.S.C. §§ 101 and 201(b). Accordingly, the absence of Vallely's and Schmock's names on the copyright application was duly appropriate.

Under § 101, an independent contractor's commissioned work qualifies as a work made for hire only if it falls within one of the statute's enumerated categories, and an audiovisual work must contain a visual component rather than being purely audio.

Lulirama Ltd., Inc. v. Axcess Broadcast Services, Inc. · filed 1997-11-10(2)

A work created by an independent contractor can constitute a work for hire only if it fits one of the nine narrowly drawn categories of works delineated in the second part of § 101's definition of "works made for hire." ... The plain language of this definition indicates that an audiovisual work must have a visual component. ... Therefore, we cannot agree with the district court that the term "audiovisual works" encompasses "purely audio works."

Section 101 defines a work made for hire to include a work prepared by an employee within the scope of employment.

Quinn v. City of Detroit · filed 1997-12-12

For purposes relevant to this litigation, a work made for hire is a work: (1) prepared by an employee (2) within the scope of his or her employment. 17 U.S.C. § 101, 17 U.S.C. § 201(b). ... In sum, this court finds Quinn’s creation of LMS fell outside the scope of his employment. Accordingly, this court also finds that LMS is not a work made for hire. Summary judgment will be entered in favor of Quinn and adverse to the City on this issue.

A work prepared by an employee within the scope of employment is a work made for hire, so the employer is entitled to ownership even without a contract assigning the copyright.

Oklahoma Natural Gas v. LaRue · filed 1998-09-01(1)

Overwhelming evidence demonstrates Mr. LaRue was acting within the scope of his employment as he took the photographs in question, including: taking photographs was part of his job; it was during work hours; he used a company camera and film; the Company paid to develop the film; he reported in to the Company throughout the day; and he never told anyone he was taking personal time. The district court properly focused on application of the work made for hire doctrine, through which the Company was entitled to ownership of the copyrights.

Section 101 makes a work made for hire one prepared by an employee within the scope of employment; determining employee status for an unwritten arrangement requires applying common-law agency factors.

Ron and Judy Kirk v. Harter · filed 1999-08-27

The Copyright Act provides that an employer is the author when an item is considered a work made for hire. See Community for Creative Non-Violence v. Reid, 490 U.S. 730, 743-44 (1989); 17 U.S.C. § 201(b). See also 17 U.S.C. § 101 (defining work made for hire as “a work prepared by an employee within the scope of his or her employment”); MacLean Assoc., Inc. v. Wm. M. Mercer-Meidinger-Hansen, Inc., 952 F.2d 769, 775-76 (3rd Cir. 1991) (explaining work made for hire doctrine). ... To determine the employment status of an individual under the copyright statutes when there is no written employment agreement, we look to the common law rules of agency. See Reid, 490 U.S. at 750-51. ... Because the evidence was largely undisputed, we need not dwell on the degree of deference that should be shown to the jury’s findings regarding the Reid factors, for we conclude that the evidence compels a determination that Harter was in fact an independent contractor and not an employee, with the result that he was the owner of the computer program and thus not liable for copyright infringement.

Section 101 defines a work made for hire to include a work prepared by an employee within the scope of employment.

Manning v. Board of Trustees of Community College District No. 505 · filed 2000-08-03

The Copyright Act defines a “work made for hire” as “a work prepared by an employee within the scope of his or her employment.” 17 U.S.C. § 101; ... The parties do not dispute that Plaintiff was hired as a photographer and that the photographs at issue were prepared within the scope of Plaintiffs employment. Accordingly, there is no dispute that the photographs are works “made for hire.”

Section 101 treats employers as authors of works made for hire and permits commissioned works only within specified categories when the parties sign a written agreement in advance identifying the work as made for hire.

Billy-Bob Teeth Inc v. Novelty Inc · filed 2003-05-21

Under the “work made for hire” provisions in 17 U.S.C. § 101, employers are considered authors. A “work made for hire” is a work prepared by an “employee within the scope of his or her employment” or a “work specially ordered or commissioned” within nine specified categories. Community for Creative Non-Violence v. Reid, 490 U.S. 730, 738 (1989). When a work falls within the nine categories, it can be a work made for hire if “the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” § 101. For an item to be a commissioned work, then, the parties must agree in advance that that is what it will be. Schiller & Schmidt, Inc. v. Nordisco Corp., 969 F.2d 410 (7th Cir. 1992).

Section 101 treats Warren's commissioned compositions for an audiovisual work as works made for hire, so the commissioning party owned the copyrights and Warren lacked standing to sue.

Warren v. Fox Family Worldwide, Inc. · filed 2003-05-13

Therefore, Warren is not a legal or beneficial owner of the copyrights, and lacks standing to sue under the Act.

Section 101's work-for-hire definition includes a work prepared by an employee within the scope of employment.

Shaul v. Cherry Valley-Springfield Central School District · filed 2004-03-25

The Act, however, contains an important exception for "work prepared by an employee within the scope of his or her employment." 17 U.S.C. § 101 (1996). ... Without denigrating in any way the time and effort devoted by Shaul in fulfilling his teaching duties, we hold that his ownership of the tests, quizzes, homework problems, and other teaching materials in his former classroom is precluded by the work-for-hire doctrine.

Section 101 treats a commissioned work as made for hire only if it falls within the listed categories and the parties expressly agree in a signed writing, while employee-created work requires an employment relationship.

Neil Gaiman and Marvels and Miracles, Llc, Plaintiffs-Appellees/cross-Appellants v. Defendants-Appellants · filed 2004-03-31

It might seem that when McFarlane told Gaiman that he would treat Gaiman “better than the big guys” did, he just meant he’d compensate him more generously for work made for hire. But McFarlane rightly does not argue this. Gaiman’s work for him was not work made for hire. It was neither (1) work created by an employee within the scope of his employment nor (2) “a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” 17 U.S.C. § 101. There was no written agreement between Gaiman and McFarlane, and Gaiman was not an employee of McFarlane.

Section 101's work-for-hire exception covers teaching materials prepared by an employee within the scope of the employee's teaching duties, making the employer the author and owner absent a contrary written agreement.

Shaul v. Cherry Valley-Springfield Central School District · filed 2004-03-25

Here, the very nature of a teacher’s duties involves a substantial amount of time outside of class devoted to preparing lessons, problem sets, and quizzes and tests — which is clearly within the scope of his employment.

Section 101 treats a work prepared by an employee within the scope of employment as a work made for hire, so the employer owns the copyright absent a contrary contract.

Martha Graham School & Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc. · filed 2004-08-18

Graham’s fifteen dances created in and after 1978 were properly found to be works for hire.

For the employee prong of the work-made-for-hire definition, a work is prepared within the scope of employment under common-law agency principles, using the kind-of-work, authorized-time-and-space, and employer-purpose factors.

Gilpin v. Siebert · filed 2006-03-07

Under the Restatement (Second) of Agency § 228(1) (1958), a work is prepared within the scope of one’s employment if it meets a three-prong test: (1) it is the kind of work the author is employed to perform; (2) the creation of the work occurred substantially within authorized work hours and space; and (3) the creation of the work was actuated, at least in part, by a purpose to serve the employer.

Section 101 defines work made for hire through employee work within the scope of employment or qualifying commissioned work with a signed writing, and scope is determined under agency-law principles.

Pittsburg State University v. Kansas Board of Regents · filed 2005-11-10

Even if PSU faculty are employees of KBR, that does not end the analysis for purposes of determining whether the works they create are works for hire.

Section 101 defines a work made for hire as a work prepared by an employee within the scope of employment.

Mostowfi v. 12 Telecom International, Inc. · filed 2008-03-04

Section 101 of the Copyright Act defines a “work made for hire” as “a work prepared by an employee within the scope of his or her employment.” 17 U.S.C. § 101.

Section 101(2) treats a specially ordered or commissioned work as made for hire only when the parties expressly agree in a signed writing, and the agreement cannot cover work that already exists.

Gladwell Government Services, Inc. v. County of Marin · filed 2008-01-28(2)

Section 101 of the Copyright Act defines a “work made for hire” as “a work specially ordered or commissioned ... if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire____” 17 U.S.C. § 101(2). The plain language of the statute indicates that a work-for-hire agreement cannot apply to works that are already in existence.

For the work-for-hire definition applied here, § 101 covers a work prepared by an employee within the scope of employment; an independent contractor's work is not covered on that basis.

Blair v. World Tropics Productions, Inc. · filed 2007-04-19

These factors all heavily favor a finding that Blair was an independent contractor.

Section 101’s work-made-for-hire definition requires an employee relationship for the employee-based category, while also covering certain specially ordered or commissioned works.

MONTWILLO v. Tull · filed 2008-06-02

Here, it is undisputed that plaintiff was not an “employee” of AAP.

Section 101 treats a work as made for hire either when an employee creates it within the scope of employment or when a commissioned work is covered by a signed written agreement expressly stating that it is a work made for hire.

Recht v. METRO GOLDWYN MAYER STUDIO, INC. · filed 2008-06-12

Thus, the only question is whether petitioner prepared the music and screenplay as “an employee” of the producers.

Section 101 defines a work made for hire as either an employee's work within the scope of employment or certain commissioned work, and a commissioned work qualifies only if the parties expressly agree in a signed writing; architectural drawings are not among the enumerated commissioned works.

Warren Freedenfeld Associates, Inc. v. McTigue · filed 2008-06-20

The independent contractor niche is no more hospitable to McTigue’s claim.

Section 101 treats an independent contractor’s work as work made for hire only if it falls within an enumerated category and the parties expressly agree in a signed writing.

108 Degrees v. Merrimack Golf Club · filed 2010-03-25

Thus, unless the website materials fall within one of those nine “enumerated categories” and were created pursuant to a written work-for-hire agreement, they will not fall within the statutory exception.

Section 101 covers employee-created works within the scope of employment and certain commissioned works made subject to a signed agreement; whether someone is an employee is determined using common-law agency principles.

Huebbe v. Oklahoma Casting Co. · filed 2009-09-30

Because the Act does not define “employee” or the “scope of employment,” the Court must apply common law agency principles to determine if the work constitutes work for hire under the Act.

For a commissioned work by a nonemployee to qualify as a work made for hire, the parties must expressly agree in a signed writing that it is a work made for hire.

Hermosilla v. the Coca-Cola Co. · filed 2010-06-02

Coca-Cola has made no showing that any such agreement exists.

Section 101 treats a work prepared by an employee within the scope of employment as a work made for hire.

LE v. City of Wilmington · filed 2010-09-07

The Copyright Act defines a "work made for hire" as including "a work prepared by an employee within the scope of his or her employment." 17 U.S.C. § 101; see also MacLean Assocs., Inc. v. Wm. M. Mercer-Meidinger-Hansen, Inc., 952 F.2d 769, 775 (3d Cir.1991). ... The issue here remains whether Le created the Work in the scope of his employment (regardless of whether he did so at home during his own time or at the office during working hours). ... In the Court's view, all of this evidence establishes that Le created the Work within the scope of his employment with the City, rendering—in the circumstances presented here—the Work a work-for-hire. There is not evidence in the record that would permit a reasonable factfinder to conclude otherwise. Accordingly, Le does not hold a copyright in the Work and the City cannot be liable for copyright infringement, making summary judgment for the City appropriate.

Section 101, together with § 201(b), treats an employee's work created within the scope of employment as a work made for hire for which the employer is the author.

Roop v. Lincoln College · filed 2011-03-14

As relevant here, the “works made for hire” doctrine provides that when an employee creates a work within the scope of her employment, the employer for whom the work was prepared is considered the proper author of the work. 17 U.S.C. §§ 101, 201(b).

Section 101 defines a work made for hire to include a work prepared by an employee within the scope of employment.

Homeowner Options for Massachusetts Elders, Inc. v. Brookline Bancorp, Inc. · filed 2011-05-12

Greenbaum was an officer and employee of H.O.M.E., the form was created within the scope of his employment and the copyright in his work would ... therefore be owned by H.O.M.E.

Section 101 requires an express agreement in a signed written instrument for a work-for-hire arrangement; an oral understanding is insufficient.

TMTV, CORP. v. Mass Productions, Inc. · filed 2011-06-13

the statute requires express agreement in a signed written instrument, see 17 U.S.C. § 101 (definition); ... and the circuits are divided as to whether the language and policy require the writing ... before the creation or at least the completion of the work.

Section 101 defines a work made for hire as either employee work within the scope of employment or certain commissioned work covered by a signed writing.

Psihoyos v. Pearson Education, Inc. · filed 2012-02-29

Under the Copyright Act, ownership of a “work made for hire” vests in the author’s employer.

Section 101 treats a work as derivative when original authorship results from revising, selecting, removing, condensing, or otherwise recasting preexisting material, and treats a commissioned work as made for hire only if it falls within the statutory categories and the parties expressly agree in writing.

Durkin v. Platz · filed 2013-01-30

Under the Copyright Act, “[a] work consisting of editorial revisions, annotations, elaborations, or other modifications [to a preexisting work which], as a whole, represent an original work of authorship, is a ‘derivative work.’ ” 17 U.S.C. § 101. ... Thus, whether Plaintiffs’ efforts in creating the screenplay are sufficiently original is not simply a question of whether Plaintiffs made literal “additions” to the manuscript, i.e., whether they added new characters, scenes, plots, or dialogue. ... To be clear, the screenplay is not a work for hire. Under the Copyright Act, a work is made for hire if it is either (1) prepared by an employee within the scope of his or her employment, or (2) prepared by an independent contractor and falls within one of the categories of specially ordered or commissioned works specified in the statute. 17 U.S.C. § 101. To be considered a work for hire, the parties must expressly agree in writing that the work is made for hire. Id. Thus, because Plaintiffs were not Defendants’ employees and there is no written agreement stating that the screenplay is a work made for hire, the work-for-hire doctrine is inapplicable.

Section 101 requires joint authors to contribute non-trivial creative expression intended to be combined into inseparable or interdependent parts of a whole, and treats a work as made for hire only when made by an employee within the scope of employment or commissioned.

Brownstein v. Lindsay · filed 2014-01-29

For two or more people to become co-authors, each author must contribute some non-trivial amount of creative, original, or intellectual expression to the work and both must intend that their contributions be combined. ... The components must also be “inseparable or interdependent” parts of a whole but each co-author’s contribution need not be equal for them to have an equal stake in the work as a whole. 17 U.S.C. § 101; 1 Nimmer on Copyright § 6.03. ... A work for hire requires that the work be made by an employee within the scope of his or her employment or that the work be commissioned. 17 U.S.C. § 101; see 1 Nimmer on Copyright § 5.03; Marco v. Accent Publ’g Co., 969 F.2d 1547, 1549-50 (3d Cir. 1992); see also Warren Freedenfeld Assocs., Inc. v. McTigue, 531 F.3d 38, 48 (1st Cir. 2008).

Section 101 requires an express, written agreement signed by both parties for an independently commissioned work to qualify as a work made for hire, so copyright ownership vests in the commissioning party only when that requirement is met.

Zenova Corp. v. Mobile Methodology, LLC · filed 2014-02-04

Zenova’s argument relies on the provisions of 17 U.S.C. § 101, which defines a “work made for hire” as “a work specially ordered or commissioned ... if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” Thus, under copyright law, ownership of a copyright vests in the person for whom an independent contractor creates the work, but only if there is the express, written, and signed agreement to that effect.

Section 101 defines a work made for hire, in relevant part, as a work prepared by an employee within the scope of employment.

Carol Wilson Fine Arts, Inc. v. Qian · filed 2014-12-03

“Work made for hire” is defined, in relevant part, as “a work prepared by an employee within the scope of his or her employment.” 17 U.S.C. § 101. ... Thus, no genuine issue of material fact exists as to whether the Works were “made for hire” within the meaning of the Copyright Act.

Section 101 treats a work prepared by an employee within the scope of employment as a work made for hire, with employee status determined under common-law agency principles and a multi-factor test.

Kennedy v. Gish, Sherwood & Friends, Inc. · filed 2015-11-05

The Copyright Act does not define the terms “employee” or “scope of employment.” In Cmty. for Creative NonViolence v. Reid, 490 U.S. 730, 740-41, 751, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989), the Supreme Court held the term “employee” should be understood in light of common law agency principles and that a multi-factor balancing test ... was required to determine if a work was produced for hire (by an employee) or by an independent contractor. ... Under the facts and circumstances of this case, the Court finds a genuine issue of material fact as to whether Kennedy was an independent contractor or employee under the Reid test.

Section 101 defines a work made for hire to include a work prepared by an employee within the scope of employment, and the court applied that definition to the recordings at issue.

Lewis v. Activision Blizzard, Inc. · filed 2015-12-18

There is no genuine issue of material fact as to whether the baby murloc recordings constitute “work made for hire,” defined as “a work prepared by an employee within the scope of his or her employment.” 17 U.S.C. § 101.

Section 101 treats a work as made for hire when it is prepared by an employee within the scope of employment, with employee status determined under common-law agency principles.

TransUnion Risk & Alternative Data Solutions, Inc. v. Best One, Inc. (In re TLFO, LLC) · filed 2016-08-18

The copyright statute defines a “work made for hire” as “a work prepared by an employee within the scope of his or her employment.” 17 U.S.C. § 101. The Supreme Court of the United States has held that to determine whether an individual was an employee, and whether he created a work within the scope of his employment, courts should look to the general common law of agency.

Section 101 treats a work prepared by an employee within the scope of employment as a work made for hire, with scope determined under common-law agency principles.

Kuryakyn Holdings, LLC v. Ciro, LLC · filed 2017-03-15

There is no question that Madden was Kuryakyn’s employee when he created the Ciro-logo. Thus, the question is whether designing the Ciro logo was within the “scope of employment,” a question decided under the common law principles of agency.

Section 101 defines a work made for hire as a work prepared by an employee within the scope of the employee's employment.

CSS, Inc. v. Herrington · filed 2018-01-29

(a), (2) the work was prepared by an employee, (3) the work was prepared within the scope of the employee's employment, and (4) the parties have not expressly agreed otherwise in a signed, written instrument.

Section 101 treats a commissioned work as a work made for hire only when the parties expressly agree in a signed writing, while also covering qualifying employee-created works.

Ennio Morricone Music v. Bixio Music Group · filed 2019-08-21

Under 17 U.S.C. § 101, a work that is embedded in another work is a “work made for hire” if it is “[1] prepared by an employee within the scope of his or her employment; or [2] specially ordered or commissioned for use . . . as a part of a motion picture or other audiovisual work . . . if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” 17 U.S.C. § 101. Mr. Morricone was not a Bixio employee; and none of the contracts specify that the scores shall be considered “works made for hire.” Accordingly, by its literal terms, the exception does not apply under U.S. law.

Section 101 treats a work as made for hire when prepared by an employee within the scope of employment, or when a qualifying commissioned work is covered by a signed writing.

Freeplay Music, LLC v. Dave Arbogast Buick-GMC, Inc. · filed 2019-09-24

A “work made for hire” is “a work prepared by an employee within the scope of his or her employment” or “a work specifically ordered or commissioned for use . . . if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.”

Section 101's work-made-for-hire rule requires the work to be prepared by an employee within the scope of employment; a company that merely markets software cannot claim ownership of software developed outside that scope.

CyberX Group LLC v. CyberX LLC · filed 2020-09-11

Pursuant to the Copyright Act, an employer owns the copyright in “a work prepared by an employee within the scope of his or her employment[.]” 17 U.S.C. §§ 101, 201(b). ... If CXG is purely a marketing company, then software development is not within the scope of CXG employment and CXG cannot claim copyright ownership over the software as a work made for hire.

Section 101(2) does not transfer an independent contractor’s copyright to the commissioning party absent a written work-for-hire agreement.

HUBAY v. MENDEZ · filed 2020-11-13(2)

In any event, even if the Court were to apply the Reid factors, they would not support a finding that Mr. Losieniecki is an “employee.” To the contrary, if anything, his volunteer relationship with MSTM more closely approximated that of an unpaid independent contractor. And absent a written agreement to the contrary (which does not exist here), an independent contractor retains the copyright in his or her “works.” See 17 U.S.C. § 101(2).

Section 101 defines a work made for hire as either an employee's work within the scope of employment or certain specially ordered or commissioned works covered by a written work-made-for-hire agreement.

Poppington, LLC v. Brooks · filed 2021-07-27

Under 17 U.S.C. § 101, a “work made for hire is either a work ‘prepared by an employee within the scope of his or her employment’ or certain types of ‘specially ordered or commissioned’ work, so long as the parties agree in writing that the work will be considered a work made for hire.” ... While Brooks has cited a Brooks v. Dash trial exhibit indicating that the Mafietta production enterprise paid Horn $600 to take photographs on set, cf. supra n. 1, Brooks has not claimed that a written agreement exists governing Horn’s photography, let alone a written agreement with a work made for hire provision. Nor has Brooks suggested that Horn took the photographs pursuant to an employer-employee relation. Brooks has thus failed to establish that the photograph was a work made for hire.

Section 101 treats a work made by an employee within the scope of employment as a work made for hire, while a specially commissioned work qualifies only with an express agreement, and employee status is determined under common-law agency principles.

Horror Inc. v. Miller · filed 2021-09-30

Section 101 of the Act defines two mutually exclusive categories of work for hire: the first provides that a work made by an employee within the scope of his employment is a work for hire; and the second provides that a specially commissioned work that is subject to an express agreement that the work will be treated as one made for hire is such a work. ... Although it uses the terms “employee,” “employment,” and “scope of employment” in critical provisions, the Copyright Act defines none of the three; consequently, “the application of these terms is left to the courts.” ... Relying on the statutory language and legislative history of section 101, the Supreme Court explained in Reid that in using these terms Congress “intended to describe the conventional master-servant relationship as understood by common-law agency doctrine,” and thus courts should “rel[y] on the general common law of agency” to determine whether the individual is an employee or an independent contractor. ... Thus, if the individual qualifies as an employee “under the general common law of agency,” ... and the work is prepared within the scope of his employment, ... then the work that he prepares for his employer is a work for hire. If, however, the individual is merely an independent contractor “as understood by common-law agency doctrine,” ... then the work will not qualify as a work for hire under section 101.

Section 101(2) permits a specially ordered or commissioned work to be a work made for hire only if it falls within an enumerated category and the parties expressly agree in a signed written instrument that it is a work made for hire.

Pisciotti v. Brittingham · filed 2022-07-01(2)

The Copyright Act “plainly creates two distinct ways in which a work can be deemed for hire: one for works prepared by employees, the other for those specially ordered or commissioned works which fall within one of the nine enumerated categories and are the subject of a written agreement.” Reid, 490 U.S. at 741; see 17 U.S.C. § 101(2) (listing the nine types of work that can be made for hire with a written agreement). “Kaleidoscope” does not qualify as a work made for hire under either of these “mutually exclusive” theories. Reid, 490 U.S. at 743. First, Brittingham makes no effort to argue that Pisciotti was her employee. Nor would such an attempt be persuasive. See id. at 751–52 (listing factors relevant to determining whether a hired party is an employee). And second, although “Kaleidoscope” is an “audiovisual work” (one of the nine enumerated categories), the parties did not “expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” 17 U.S.C. § 101(2).

Section 101 defines a work made for hire to include a specially ordered or commissioned contribution to a collective work when the parties sign a written agreement expressly designating it as such.

Arias v. Universal Music Group · filed 2022-11-10

The term “work made for hire” includes “a work specially ordered or commissioned for use as a contribution to a collective work . . . if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” 17 U.S.C. § 101. ... By signing the Agreement, Plaintiff “expressly agree[d]” that Good Morning would “be considered a work made for hire.”

Section 101(2) treats a work as made for hire when it is specially ordered or commissioned for one of nine listed uses and the parties sign a written agreement saying so; a sound recording qualifies only if it also fits a listed category.

Sobol v. UMG Recordings, Inc. · filed 2023-01-27(2)

Section 101(2) provides that a work was made for hire if it was: (1) “specially ordered or commissioned,” (2) “for use as” one of nine enumerated categories, and (3) “if the parties expressly agree[d] in a written instrument signed by them that the work shall be considered a work made for hire.” ... Although “sound recordings” are not listed in Section 101(2), “something that happens to be a sound recording may still be eligible as a specially commissioned work, as long as it simultaneously qualifies under one of the statutorily enumerated categories.”

Section 101 defines a work made for hire as either work prepared by an employee within the scope of employment or specially commissioned work covered by a signed written agreement.

Gentile v. Crededio · filed 2023-03-31

Section 101 of the Copyright Act specifies that a work is “for hire” under “two sets of circumstances: ‘(1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned . . . if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.’” Reid, 490 U.S. at 738 (quoting 17 U.S.C. § 101). Here, only the first prong is even potentially applicable because Plaintiffs do not allege that Ms. Crededio signed a written instrument designating the draft script a work-made-for-hire. (See FAC ¶¶ 74-79).

Section 101 treats a specially ordered or commissioned compilation as a work made for hire only when the parties expressly agree in a signed writing.

PalatiumCare Inc v. Notify LLC · filed 2023-04-13

“A ‘work made for hire’ is . . . a work specially ordered or commissioned for use . . . as a compilation [or other uses], if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” 17 U.S.C. § 101. ... The Court finds that, based on these facts, Defendants have met their burden to show that the applications misstated the authorship of the Source Code by excluding Geimer, Davis, and Staiduhar as authors. Although Defendants’ argument turns on technicalities about the written instruments between these three developers and PalCare, courts such as the Seventh Circuit in Schiller and the Western District of Wisconsin in Recht have made clear that those technicalities matter. In this case, those technicalities were not met.

Section 101 includes an employee’s work prepared within the scope of employment in the definition of a work made for hire.

Illinois Central Railroad Company v. Belcher · filed 2023-11-06

First, IC has shown how it intends to prove that the PMA is a work made for hire. Under the Copyright Act, where an employee prepares a work within the scope of their employment, all rights to that work belong to the employer. 17 U.S.C. §§ 101, 201(b).

Section 101 defines a work made for hire as either a work prepared by an employee within the scope of employment or a specially ordered or commissioned work covered by the statute and supported by a signed written agreement.

Germain v. Martin · filed 2024-09-27

The Court can reasonably infer from Plaintiff’s language, “[a]rtist GURU (Keith Elam) who was fully compensated for the performance as ‘work for hire’”, that Elam was not treated nor intended to be an ongoing employee of Plaintiff’s as within the conventional definition of employee. (Compl. ¶ 12.) Therefore, the Plaintiff must show that a written agreement between the two parties indicates that Elam’s work should be considered “work made for hire” as defined under the applicable statute 17 U.S.C. § 101. Plaintiff, however, gives no indication that there was any written agreement between the parties. Upon review of the pleadings, there are no well pleaded factual allegations nor support that would allow this Court to reasonably infer that Plaintiff had either a written agreement with Elam for his work or employed Elam in any capacity in order to satisfy Plaintiff’s burden.

Section 101(1) treats a work prepared by an employee within the scope of employment as a work made for hire.

Distefano · filed 2025-11-19(1)

Specifically, the Copyright Act defines “a work prepared by an employee within the scope of his or her employment” as a “work made for hire,” 17 U.S.C. § 101(1), and the employer owns all “works made for hire,” unless the parties agree otherwise in a separate signed written agreement.