UCLA Entertainment Law Review

The American legal system is unable to continue avoiding the

question of art versus non-art. In particular, questions of copyrightability

often hinge on art-status. Yet art is a constantly evolving,

reflexive field in which artists and philosophers continually challenge

the status quo. Judges would benefit from analyzing claims to artstatus

under the objectivity provided by well-developed aesthetic

theories, aided by expert testimony when needed After reviewing

several major philosophies of art, this Article proposes a framework

for adjudicating art-status based on an aesthetic theory known as the

Historical Definition of Art. Furthermore, to balance copyright law's

purpose of protecting innovation with its need to promote public

availability of copyrighted works, this Article proposes the creation of

a new statutory exception to provide a defense for "utilitarian

adaptations" of copyrighted three-dimensional works. This statutory

defense would serve to encourage innovation and stimulate production

of novel goods.