Can you please provide an actual argument here? As I understand it — and I am not an attorney, let alone a copyright attorney, so I may very well not be understanding correctly — separability is the notion that a functional item may qualify for copyright despite being functional because the artistic aspect is considered separately from the utility aspect. I don’t see how that relates to this particular case at all.

Sorry, I didn’t have time to explain further yesterday.

The Copyright Act provides:

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.

It further provides:

[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.

Ibid.

The test, derived from the statutes, is separability. A useful article, taken as a whole, is not copyrightable. That’s the realm of patents, aka, the useful arts. Nevertheless, parts of useful articles can be copyrighted, but only if they can be physically or conceptually separated from the useful articles. For example, a chair is a useful article. To the extent it functions as a chair, it can’t be copyrighted. But an ornamental design on the back of the chair can be copyrighted, as it is conceptually, if not physically, separable from the utility of the chair.

So is the shark design separable from shark costume’s utilitarian function? That’s the test. It’s wrong to just say costumes can’t be copyrighted. You have to do a separability analysis. That was my point. To do that, you’d have to turn to the case law and reason by analogy.

For example, you could look at this case, where the district court held that particular slippers shaped like bear claws were copyrightable because the design was conceptually separable from the utilitarian slipper:

The Court will assume for purposes of the present motion that plaintiff’s slipper is a useful article within 17 U.S.C. § 101.17 Notwithstanding this assumption, defendant’s characterization of the scope of copyright protection in this case is far too narrow. Virtually all of the design aspects of plaintiff’s slipper “can be identified separately from, and … exist … independently of, the utilitarian aspects of the [slipper].” 17 U.S.C. § 101. It is clear that such features need not be physically separable from the useful article in order to be protectable; it is enough that they can be conceptually separated. Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989, 993 (2d Cir.1980). In the present case, plaintiff’s design features are conceptually separate from the utilitarian aspects of its slipper. Plaintiff correctly notes that one could draw a line drawing of the whole shape and design which would be recognizable as a fanciful artistic rendition of a bear’s paw, regardless of what type of functional or utilitarian object it was used to adorn. See Ted Arnold Ltd. v. Silvercraft Co., 259 F.Supp. 733 (S.D.N.Y.1966) (pencil sharpener with exterior shape in form of antique telephone held protectable); Royalty Designs, Inc. v. Thrifticheck Service Corp., 204 F.Supp. 702 (S.D.N.Y.1962) (toy banks in shape of dogs held protectable). The impractical width and shape of the BEARFOOTTM sole, the artwork *188 on the sole, the particular combination of colors, the profile of the slipper, the stuffed aspect of the slipper, and the toes are all sculptural features which comprise the artistic design and which are wholly unrelated to function. The Court therefore finds that the entire exterior design of plaintiff’s slipper is protectable under the Copyright Act.

Animal Fair, Inc. v. AMFESCO Indus., Inc., 620 F. Supp. 175, 187-88 (D. Minn. 1985) aff’d sub nom. Animal Fair v. Amfesco Indus., 794 F.2d 678 (8th Cir. 1986).

Reasoning by analogy, the shark costume is utilitarian in that it is a costume. That is its function. No one can copyright the functionality of any costume. But separable from the utility of the shark costume is its design. It contains many “sculptural features which comprise the artistic design and which are wholly unrelated to function,” just like the bear claw slippers. So it’s copyrightable, just like the slippers.

There’s other cases that cut this same way, and there’s cases that cut the other way. But my point is that it’s not as simple as costume = not copyrightable, as Mike claimed.