applications for registration as the bicycle racks did not include any
element that was capable of independent existence as a copyrightability,
Brandir Int’l, Inc. v. Cascade Pac. Lumber Co.,
834 F.2d 1142, 1987 U.S. App. LEXIS 15867, 5 U.S.P.Q.
2D (BNA) 1089
Brief Fact Summary. Brandir International, Inc. (Plaintiff) sold a wire
sculpture as a bicycle rack that by was deemed not to be copyrightable
because it was an industrial design not subject to copyright protection.
Synopsis of Rule of Law. Copyrightability ultimately depends on the
extent to which the work reflects artistic expression not restricted by
functional considerations.
Facts. After seeing undulating wire sculptures, a friend suggested to the
artist, the chief owner of Brandir International, Inc. (Brandir) (Plaintiff),
that the sculptures would make excellent bicycle racks. Plaintiff then
started to manufacture and sell bike racks derived in part from one or more
of the works of art. When Plaintiff
discovered that Cascade Pacific Lumber (Defendant) was selling a similar
product, it included a copyright notice with its products and applied to the
Copyright Office for registration. The Copyright Office denied the
and the district court granted summary judgment on the copyright claim.
Plaintiff appealed.
Issue. Should copyrightability ultimately depend on the extent to which the
work reflects artistic expression not restricted by functional
considerations?
Held. (Oakes, J.) Yes. Copyrightability ultimately should depend on the
extent to which the work reflects artistic expression not restricted by
functional considerations. If design elements reflect a merger of aesthetic
and functional considerations, the artistic aspects of a work cannot be
said to be conceptually separable from the utilitarian elements. The final
form of the bicycle rack sold by Brandir (Plaintiff) is basically a product of
industrial design. Form and function are inextricably intertwined in the
rack, its ultimate design being as much the result of utilitarian pressures as
aesthetic choices. The original aesthetic elements have clearly been
adapted to accommodate and further a utilitarian purpose. Affirmed.
Concurrence.(Winter, J.) The relevant question should be whether the
design of a useful article, however intertwined with the article’s utilitarian
aspects, causes an ordinary reasonable observer to perceive an aesthetic
1
concept not related to the article’s use. The answer to this question is

clear in this case since any reasonable

observer would easily see the bicycle rack as an ornamental sculpture. The

Copyright Act expressly states that the legal test is how the final article is

perceived, not how it was developed at various stages along the way.

Discussion. The majority in this case adopted a test suggested by

Professor Denicola in his article “Applied Art and Industrial Design,” 67

Min. L. Rev. 707 (1983). The Winter dissent suggested applying a

different test and another dissent suggested using a temporal displacement

test. In general, if a work is a useful article, the artistic elements have to be

separate in order for the work to be copyrightable.