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Alive and Well: The (Still) Ongoing Debate Surrounding Conceptual Separability in American Copyright Law

This Note discusses the conceptual separability doctrine of American copyright law. Separability, which can be achieved either physically or conceptually, is a prerequisite for the copyright protection of the designs of useful articles (a subset of pictorial, graphic, or sculptural works). Federal courts have been dealing with conceptual separability since the Copyright Act of 1976 took effect. However, even after thirty years, the United States Courts of Appeals have not agreed on a uniform standard for conceptual separability. Most recently, the Seventh and Fifth Circuits have disagreed as to the appropriate standard. This Note discusses the existing case law on conceptual separability and discusses the various standards. It suggests that courts employ a two-factor balancing test to determine conceptual separability in useful articles. It instructs courts to weigh 1) the degree to which the designer's process is influenced by aesthetic, as opposed to functional, and 2) the degree to which the design of the useful article is dictated by its utilitarian function. This approach successfully balances the competing goals of copyright law.