Separability Test Of Works Of Applied Art

The work of applied art is a kind of work of practical and artistic nature, andmost Chinese scholars consider that it can be protected by copyright laws as work ofart. It can be copyrightable only if its aesthetic feature can be separate from itsutilitarian function without reducing the utility of the article. However，there isn’t anyclear test of separability in China. While in USA people have studied the separabilityand separability test for a long time since1954.This dissertation tires to put forwardsome advices for our courts to judge the separability of the aesthetic feature andfunction of the useful article by means of analyzing American legislation and judicialpractice.This dissertation includes preface, text and epilogue. The text is divided into fourchapters.Chapter one mainly introduces the status of legal protection of the work ofapplied art in China. At present, either in theory or in judicial practice, the aestheticfeature of the work of applied art which satisfied the separability requirement areconsidered to be copyrightable, but there is no in-depth analysis about the separabilitytest.Chapter two mainly demonstrate the establishment and codification of theseparability doctrine and briefly introduces the two formulation of the separabilityrequirement, physical separability and conceptual separability.Chapter three analyze the test of conceptual separability proposed by circuit courts of appeal and professors via several classic cases.Chapter four proposes an alternative test of conceptual separability after analyzethe weakness of current available tests, urges courts to consider the subjective andobjective factors of the design process of the useful article at the same time.In the end, this dissertation concludes that courts should use physical separabilityas a first step in their analysis, and then come to conceptual separability.