|From Galiano v Harrah's, 416 F.3d 411 (5th Cir 2005)|
Conceptual separability exists, therefore, when the artistic aspects of an article can be "conceptualized as existing independently of their utilitarian function." This
independence is necessarily informed by "whether the design elements can be identified as reflecting the designers' artistic judgment exercised independently of
functional influence." If the elements do reflect the independent, artistic judgment of the designer, conceptual separability exists. Conversely, when the design
of a useful article is "as much the result of utilitarian pressures as aesthetic choices," the useful and aesthetic elements are not conceptually separable.
See Pivot Point, 372 F.3d 920 at 931 (citations omitted). In other words, where artistic discretion dominates practical necessity as the driving force behind design choices, a useful article may nonetheless qualify for protection as a PGS work. Third, Pivot Point strongly suggests that the contested features may be considered in the aggregate. See id. at 925 (quoting Carol Barnhart, 773 F.2d at 418).