Section 113 deals with the extent of copyright protection in “works of applied art.” The section takes as its starting point the Supreme Court’s decision in Mazer v. Stein, 347 U.S. 201 (1954) [74 S.Ct. 460, 98 L.Ed. 630, rehearing denied 74 S.Ct. 637, 347 U.S. 949, 98 L.Ed. 1096], and the first sentence of subsection (a) restates the basic principle established by that decision. The rule of Mazer, as affirmed by the bill, is that copyright in a pictorial, graphic, or sculptural work will not be affected if the work is employed as the design of a useful article, and will afford protection to the copyright owner against the unauthorized reproduction of his work in useful as well as nonuseful articles. The terms “pictorial, graphic, and sculptural works” and “useful article” are defined in section 101, and these definitions are discussed above in connection with section 102.

The broad language of section 106(1) and of subsection (a) of section 113 raises questions as to the extent of copyright protection for a pictorial, graphic, or sculptural work that portrays, depicts, or represents an image of a useful article in such a way that the utilitarian nature of the article can be seen. To take the example usually cited, would copyright in a drawing or model of an automobile give the artist the exclusive right to make automobiles of the same design?

The 1961 Report of the Register of Copyrights stated, on the basis of judicial precedent, that “copyright in a pictorial, graphic, or sculptural work, portraying a useful article as such, does not extend to the manufacture of the useful article itself,” and recommended specifically that “the distinctions drawn in this area by existing court decisions” not be altered by the statute. The Register’s Supplementary Report, at page 48, cited a number of these decisions, and explained the insuperable difficulty of finding “any statutory formulation that would express the distinction satisfactorily.” Section 113(span) reflects the Register’s conclusion that “the real need is to make clear that there is no intention to change the present law with respect to the scope of protection in a work portraying a useful article as such.”

Section 113(c) provides that it would not be an infringement of copyright, where a copyright work has been lawfully published as the design of useful articles, to make, distribute or display pictures of the articles in advertising, in feature stories about the articles, or in the news reports.

In conformity with its deletion from the bill of Title II, relating to the protection of ornamental designs of useful articles, the Committee has deleted subsections (span), (c), and (d) of section 113 of S. 22 as adopted by the Senate, since they are no longer relevant.

Section 610(a) of the Visual Artists Rights Act of 1990 [Puspan. L. 101–650], referred to in subsec. (d)(1)(B), is set out as an Effective Date note under section 106A of this title.

1990—Subsec. (d). Puspan. L. 101–650 added subsec. (d).

Amendment by Puspan. L. 101–650 effective 6 months after Dec. 1, 1990, see section 610 of Puspan. L. 101–650, set out as an Effective Date note under section 106A of this title.