Most likely no. “Copyright protection for the designs of useful articles is extremely limited. The design of a useful article is protected under copyright “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 (definition of “pictorial, graphic, and sculptural works”).

“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. Examples are clothing, furniture, machinery, dinnerware, and lighting fixtures.” U.S. Copyright Office, Circular 40 revised: 09/2015.

A recent U.S. Supreme Court decision, Star Athletica, LLC v. Varsity Brands, Inc (2017) applied a two-part test for an article of clothing to be copyrighted:

“Held: A feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated.”

These designs are primarily “combinations, positionings, and arrangements of elements” that include “chevrons . . . , lines, curves, stripes, angles, diagonals, inverted [chevrons], coloring, and shapes.” At issue in this case are Designs 299A, 299B, 074, 078, and 0815. See:

The Court Reasoned that “First, the decorations can be identified as features having pictorial, graphic, or sculptural qualities. Second, if those decorations were separated from the uniforms and applied in another medium, they would qualify as two-dimensional works of art under §101. Imaginatively removing the decorations from the uniforms and applying §101. them in another medium also would not replicate the uniform itself.”

Although, the actual design of a face mask most likely cannot be copyrighted, however, the artwork, pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article can be copyrighted. For that to be the case, for example, the artwork must be an “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”

A design of a face mask can additionally  be protected, in some circumstances via trademark as product configuration. See our recent blog post about product configuration/design in trademark law: https://tmmiami.com/can-i-trademark-a-design-of-a-product.

Another way to protect a design of a face mask is via Design patents. A design patent may be granted to “Whoever invents any new, original and ornamental design for an article of manufacture may obtain a patent therefor” 35 U.S.C. § 171. However, design patents are difficult and expensive to obtain, and entail a lengthy examination process. As with every patent, they eventually expire, in the case of design patents, the term of the design patents is 15 years from the date the patent is issued.

I have helped countless small to medium sized businesses navigate the intricacies of useful articles protection to secure and protect their intellectual property rights. I’d like to help you too by protecting your rights to trademarks, copyrights, and other intellectual property rights in the US and overseas before someone else does.

 

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