This page is an essay; it contains the advice and/or opinions of one or more Commons contributors. It is not a Commons policy or guideline, and editors are not obliged to follow it. Please update the page as needed, or discuss it on the talk page.
This page in a nutshell:
Models are considered sculptural works and are, therefore, eligible for copyright protection.
Models that are intended "merely to portray the appearance of [an] article" are not considered useful articles.
Despite its aesthetic qualities—"sculptural elements"—this automobile is not eligible for copyright protection due to its utilitarian function as a vehicle. But what if it had no utilitarian function - like a model?
It is not infrequently argued that, if an actual industrial object—an automobile, an airplane, etc.—is ineligible for copyright protection, then a model of the same object should likewise be ineligible. Indeed, this argument makes a certain degree of intuitive sense; why would simply reducing an object’s size change its copyright eligibility? This logic, however, is fundamentally flawed as it fails to recognize that copyright law considers function. Models are not simply smaller versions of industrial objects; they also have an entirely different function: portrayal of appearance. Accordingly, the classification of "useful article" that exempts automobiles and airplanes from copyright protection is not applicable to models. This is demonstrated, for example, by:
The U.S. Code's explicit inclusion of "models" as pictorial, graphic, and sculptural works;[1]
Numerous models and scale models present in the U.S. Copyright Office Catalog of Copyright Entries; and
United States case law.
This essay thus seeks to present the statutory and legal support for the copyright eligibility of models and thus to identify the logical errors and misunderstandings that have led to contrary opinions. Further, because images on the Commons must be freely licensed in both the United States and their country of origin,[2] the laws of the United States serve as a first "hurdle" for all images. Accordingly, as a matter of simplicity and practicality, this essay focuses exclusively on copyright law in the United States and eschews the laws of other jurisdictions.
Copyright protection is available to “original works of authorship fixed in any tangible medium of expression” (17 U.S.C. § 102). This is a quite broad statement that would seem to encompass any man made object. Indeed, automobiles and airplanes are generally original,[3] have authors (designers) and are fixed in a tangible medium (metal, rubber, plastic, etc.) However, because such industrial objects were not intended to receive copyright protection,[4] a provision was added to exclude industrial objects on the basis of their being “useful articles:”
“
[A]n object that has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. Examples are clothing; automobile bodies; furniture; machinery, including household appliances; dinnerware; and lighting fixtures.
Accordingly, automobiles and airplanes are ineligible for copyright protection because they possess “an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” Both function as vehicles whose aesthetic elements and "sculpture features" cannot be separated from the utilitarian aspects.[5] We thus observe a key—and perhaps counter-intuitive—consideration: function.
The argument that models are ineligible for copyright protection as small versions of useful articles fails because it ignores function. To view a model as only a smaller version of the object is short-sighted, as a model also has an entirely different function: portraying appearance. Indeed, model automobiles and airplanes are not transport vehicles. Rather, they are merely (sculptural) portrayals of the appearance of the actual vehicles. Returning to the aforementioned scope of copyright—original works of authorship fixed in a tangible medium—we observe that 1) models have authors, 2) models are tangible, and 3) models do not have a utilitarian function beyond portrayal of appearance. Indeed, as something of a confirmation of this conclusion, the U.S. Code explicitly identifies models as works eligible for copyright: "[p]ictorial, graphic, and sculptural works' include two-dimensional and three-dimensional works of fine, graphic, and applied art, [...] models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned" (17 U.S.C. § 101)(emphasis added).
Logical corollary
Consider a human being, a lion, or a mountain. The "real life" versions of these—like automobiles and airplanes—are not eligible for copyright protection. If the reasoning that models of uncopyrightable objects are themselves not eligible for copyright is correct, wouldn't wax figures and other sculptures of human beings, lions, and mountains have to be precluded from receiving copyright protection? This position, obviously, is farcical. Indeed, courts have found: "[t]he mere fact that ... [a stuffed toy chimp] is based on a live model does not deprive [its author] ... of the necessary amount of originality." (Rushton v. Vitale, 218 F.2d 434, 436 (2d Cir. 1955)) This notion is also well illustrated by taxidermy, which is copyrightable. Courts have found (and affirmed), for example:
“
Because these animal mannequins were designed to portray the appearance of animals through artistic features introduced by the author in their creation, we hold that they are not "useful articles" as defined in the Copyright Act and that therefore copyright protection is available for them.
”
—Superior Form Builders, Inc. v. Dan Chase Taxidermy Supply Co., 74 F.3d 488 (1995)
“
[T]he district court concluded that almost all of the animal mannequins at issue (bear, moose, sheep, deer, steer, and antelope) had enough artistic detail to be copyrightable. 884 F.Supp. 71, 77 (N.D.N.Y.1995). The only exceptions were fish mannequins. The fish, the court found, had "no meaningful detail ... that is not commanded by the idea of a realistic fish." 884 F.Supp. at 76. Accordingly, it held that the fish "exemplif[ied] the merger of idea and expression" and were not copyrightable.
”
—Hart Scr v. Dan Chase Taxidermy Supply Company Inc., 86 F.3d 324 (1996)
Real world examples
U.S. Copyright Office
Forms
Certain official U.S. Copyright Office forms explicitly reference "scale model" as an example of a "pictorial, graphic, or sculptural work." It is not expected that the U.S. Copyright Office would use "scale model" as an example if such works were ineligible for copyright protection. Examples are summarized as follows:
Adjunct Application for Copyright Registration for a Group of Contributions to Periodicals: Form GR/CP
Catalog of Copyright Entries
The U.S. Copyright Office Catalog of Copyright Entries contains numerous entries related to models and scale models. The Copyright Office routinely rejects registration of items ineligible for copyright, such as clothing.[6] Implicitly, then, model registrations have passed this preliminary scrutiny. Samples from the U.S. Copyright Office Catalog of Copyright Entries include:
Aircraft
Boeing B-17-B flying fortress 15-inch wing span / AA 341836 (1940)
British Spitfire 1/4" scale model / KK193838 (1966)
V-1 flying bomb : S M D C authenti-kit / VAu000014997 (1979)
Case law
Gay Toys, Inc. v. Buddy L Corp.
Gay Toys, Inc. v. Buddy L Corp., 703 F.2d 970 (6th Cir. 1983) found the following:
"[T]he statutory definition of 'useful article' suggests that toys are copyrightable. To be a 'useful article,' the item must have 'an intrinsic utilitarian function that is not merely to portray the appearance of the article.' And a toy airplane is merely a model which portrays a real airplane. To be sure, a toy airplane is to be played with and enjoyed, but a painting of an airplane, which is copyrightable, is to be looked at and enjoyed. Other than the portrayal of a real airplane, a toy airplane, like a painting, has no intrinsic utilitarian function."
"This interpretation is supported by legislative history as well. The intention of Congress was to exclude from copyright protection industrial products such as automobiles, food processors, and television sets. House Report at 55, 1976 U.S.Code Cong. & Ad.News at 5668. The function of toys is much more similar to that of works of art than it is to the 'intrinsic utilitarian function' of industrial products."
"[W]orks of 'applied art' encompass all original pictorial, graphic, and sculptural works that are intended to be or have been embodied in useful articles, regardless of factors such as mass production, commercial exploitation, and the potential availability of design patent protection."
Monogram Models, Inc. v. Industro Motive Corp.
Monogram Models, Inc. v. Industro Motive Corp., 492 F.2d 1281, 1284 (6th Cir. 1974) dealt with the narrow issue of the copyrightability of model kits (distinct from the assembled sculpture):
"We have held that the copyright secured by Monogram on the F-105 Thunderchief kit, published in 1967, was a copyright on the kit, and is valid as to all components of the kit, including the plastic component parts."
"The issue of infringement was submitted to a jury which rendered a verdict that Industro had infringed Monogram's copyrights on its two scale model airplane kits."
Blazon, Inc. v. DeLuxe Game Corp.
Blazon, Inc. v. DeLuxe Game Corp., 268 F.Supp. 416, 421 (S.D.N.Y. 1965) does not relate to potential useful articles, but nevertheless supports the notion of copyright protection for models based on uncopyrightable entities:
"[I]t is no longer subject to dispute that statutes or models of animals or dolls are entitled to copyright protection"
Other issues
Originality
Originality is “the bedrock principle of copyright” and “the very premise of copyright law.” (Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 347 (1991)) This essay, therefore, presupposes that the threshold of originality on a given model has been met. As a corollary, the Currency article does not first explain that certain coins may be below the threshold of originality. Instead it, like this essay, speaks to the legitimate potential for copyright eligibility in the general "category" (coin or model), implicitly assuming originality of a specific work therein has already been considered (after all, if a work is devoid of originality, it will not enjoy copyright protection regardless of classification as a coin, model, sculpture, etc.) Indeed, the U.S. Copyright Office may refuse registration if the author did not contribute a sufficient amount of additional original authorship (no creative expression) to the replica of an automobile, airplane, train or other useful article. (Compendium Of U.S. Copyright Office Practices 313.4(A))
Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc.
Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc. 528 F.3d 1258 (10th Cir. 2008) dealt with computer models (not physical models, the subject of this essay - a perhaps important distinction) that had been generated by scanning the physical dimensions of a real Toyota vehicle and producing a wire frame model from the data set. Essentially, Meshworks played connect the dots with data points. Accordingly, the court found:
"[K]ey to our evaluation of this case is the fact that Meshwerks' digital wire-frame computer models depict Toyota's vehicles without any individualizing features.”
"Meshwerks did not make any decisions regarding lighting, shading, the background in front of which a vehicle would be posed, the angle at which to pose it, or the like—in short, its models reflect none of the decisions that can make depictions of things or facts in the world.”
Indeed, Meshwork’s wireframe was found to be merely a mechanical visual representation of underlying data points with no original contributions thereto. Although Meshworks is more a case about digitization of physical measurements than models per se, it illustrates the universal notion that copyright arises from original contributions by the author. Consider the corollary of cartography: geographical features are facts of the world and thus ineligible for copyright protection. One could, for example, express the curvature of a shoreline as a series of coordinates and then, as Meshworks did, simply connect those points; however, copyright protection is available to maps because of an author’s ability to produce a unique visual representation of that underlying geographical data via line thickness, coloring, shading, etc.
Ownership of rights
Isn't a scale model essentially a derivative work of the actual object? If so, wouldn't the designer of the actual object hold the copyright?
VA0000596466While statute and case law do not answer these questions specifically, case law and copyright registrations provide an answer through implication:
The F-105 Thunderchief was a United States fighter-bomber manufactured/designed by Republic Aviation Corporation in the late 1950s. Later, Monogram Models, Inc. produced a model of the F-105 Thunderchief which was registered for copyright protection on July 22, 1968 (Registration No. A8254). The validity of this copyright—and indeed Monogram Models, Inc. ownership thereof—was upheld in the aforementioned Monogram Models, Inc. v. Industro Motive Corp case. Implied in this decision is that the model maker, not the manufacturer/designer of the actual object, both creates and owns the copyright. Indeed, the court would not have found that "Monogram ha[d] a valid copyright on its [...] F-105 Thunderchief scale model airplane kits" and awarded damages if the copyright had actually belonged to Republic Aviation Corporation.
See also, for example, the copyright registration VA0000596466 to the right. Note that Tamiya (a model manufacturer) holds the copyright to a model kit of a Harley-Davidson FLH Classic, not Harley-Davidson Inc (the manufacturer of the motorcycle on which the model is based).
As with the logical corollary presented above, the original objects (the F-105 Thunderchief airplane or the Harley-Davidson motorcycle) never had a copyright; accordingly, creation of the model is the genesis of a copyright-eligible work. The related copyright would generally belong to the modeler, with the term based on that person's lifespan (if post mortem auctoris) or the model's date of creation/publication (e.g., the copyright term for a contemporary model of Cugnot's fardier would not be related to that vehicle's creation date of 1771.)
Similarly, the copyright for a model based on a public domain work (i.e., one formerly protected whose copyright has expired) would be held by the model author (not the author of the PD work) if their contributions were sufficiently original. For example, the replica Statue of Liberty in Las Vegas, Nevada is sufficiently original relative to the actual Statue of Liberty in New York, New York (due to differences in silhouette, face and crown) to have its own copyright (Registration Nos. VAu 1-090-876 and VA 1-882-070).
Isn't it unfair that the original manufacturer/designer doesn't get the copyright? What consideration do they get for their efforts?
Copyright is not the only intellectual property. In this instance, the original manufacturer/designer holds and retains rights related to trade dress. Commons considers non-copyright restrictions (such as trademarks and trade dress) to be matters for photographers/uploaders or reusers. Trade dress, therefore, is simply not considered on the Commons.
If two separate authors were to each create a scale model of the same object, who would get the copyright? Wouldn't two properly done scale models be identical?
Each author could potentially receive a copyright. Feist, cited above, set forth that copyright protects "those components of a work that are original to the author." Originality is not, and need not be, novelty ("the standard of originality established by the courts [...] does not include requirements of novelty" (H.R. Rep. No. 94-1476, at 51 (1976))) Copyright law thus considers "independent creation," meaning that an author created a work without copying from other works, and does not require such creation to be new (novel). Indeed, Feist found "A work may satisfy the independent creation requirement even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying.'" (emphasis added) The United States Copyright Office explicitly says "if two authors created works that are similar or even identical, each work could be registered provided that the authors did not copy expression from each other." (The Compendium of U.S. Copyright Office Practices)
Dating
Some of these cases go back to the 1960s; aren't they out-of-date? Where are newer cases?
The United States employs a Common Law system, reliant upon precedent, a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Relatedly, under the doctrine of stare decisis, a lower court must honor findings of law made by a higher court that is within the germane appeals path. Accordingly, findings of decided cases prevail until reversed, or otherwise altered, by a higher court or deprecated by a legislative change. Alternatively stated, case law does not sunset, and the absence of new case law is generally an indication that a given matter is settled or otherwise uncontested. The United States, for example, does not wonder whether James Joyce's Ulysses might now be obscene because United States v. One Book Entitled Ulysses, 72 F.2d 705 (2d Cir. 1934) was decided nearly a century ago. That notwithstanding, consider the following, most of which is already included above:
That models are sculptural works subject to copyright is "hard coded" into United States federal statute (i.e., statutory law, not case law): "'Pictorial, graphic, and 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)
The United States Copyright Office's Form VA (for the registration of visual arts) includes as "3-Dimensional sculptures: Fine art sculptures, toys, dolls, scale models, and sculptural designs applied to useful articles" and is dated May 2019.
Certain of the cases cited above, especially the most influential Gay Toys, Inc. v. Buddy L Corp. and Monogram Models, Inc. v. Industro Motive Corp., are appellate decisions. Accordingly, these cases are not only "reviews" of lower court decisions, but they can only be reversed by the United States Supreme Court. Not only has the Supreme Court not reversed these cases, in 2017 it found "the replica [a cardboard model of a car] could itself be copyrightable" (Star Athletica, LLC v. Varsity Brands, Inc.)
The U.S. Copyright Office Catalog of Copyright Entries referenced above are mere samples, selected at random or because the registration related to a court case supportive of copyright eligibility. The U.S. Copyright Office registration database is replete with registrations of scale models from the 21st century. Certain additional examples (again, at random) include:
-Ferrari F80 Concept - Design Update and Final Scale Model / VA0001923943 (2014)
-H-1B Racer Airplane 1/2 Scale Model / VAu000972775 (2008)
-XF-11 Airplane 1/4 Scale Model / VAu000972773 (2008)
Commons:Deletion requests/Category:OO Scale - based on assertion "All scale models are copied from real trains, without any added creativity". Incorrect logic, as noted above.
↑"'Pictorial, graphic, and 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. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned" (17 U.S.C. § 101)
↑"Uploads of non-U.S. works are normally allowed only if the work is either in the public domain or covered by a valid free license in both the U.S. and the country of origin of the work." (COM:L)(emphasis in original)
↑As is the case with any classification – be it painting, sculpture, model, etc. – certain works may be too simple or otherwise unable to surpass the threshold of originality necessary to receive copyright protection. As the goal of this essay is to dispel the bizarre yet common notion that “scale models are ineligible for copyright because they are scale models,” it is presupposed that originality has already been assessed and concluded to be sufficient.
↑"The intention of Congress was to exclude from copyright protection industrial products such as automobiles, food processors, and television sets." (Monogram Models, Inc. v. Industro Motive Corp., 492 F.2d 1281, 1284 (6th Cir. 1974))
↑"[T]he 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." (17 U.S.C. § 101)
↑"The Copyright Office considers costumes to be wearing apparel and consistently rejects applications to register them." (Whimsicality, Inc. v. Rubie's Costume Co., Inc., 891 F.2d 452 (2nd Cir. 1989))
This page is an essay; it contains the advice and/or opinions of one or more Commons contributors.
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