Maurizio Cattelan out of 18K gold for the Guggenheim museum.
 It was made in a foundry cast with parts welded together, it was made to look like one of the museums Kohler toilets. The sculpture was a fully functional toilet and was installed in the bathroom of the museum. While installed in Blenheim Palace, the toilet was stolen.
 
 The toilet has been interpreted in a number of ways, including as political commentary on the presidency of Donald Trump. The work has been described as an interpretation of Marcel Duchamp's 1917 Sculpture Fountain.
 Only two other instances of gold toilets are listed in the article, a 2002 Hong Kong Business man's two gold toilets in a shrine to lenin, and a Hong Kong Jewelry firm Coronet displayed a gold toilet in Shanghai in 2019 with a seat made of bullet proof glass containing more than 40,000 small diamonds.
 
 So, is America protected by Copyright Law? 
I will be providing the arguments in favor through the lens of 
Star Athletica v Varsity Brands. 

 

In the Star Athletica case, the majority held that industrial designs that incorporate artistic elements are subject to copyright protection so long as they are separable from the utilitarian aspects of the piece. 

 

The majority rejected the reasoning in the dissent that argued that the designs on the cheerleading uniforms were not separable because if they were reproduced on a canvas they would be paintings of cheerleading uniforms, or that if the elements were removed, the item would have no utility as a plain white uniform. 

 

The majority argued that the designs were separable because the designs themselves were unique and original graphic illustrations. They rely on analysis from Mazer in which the statuettes that served as  the bases of the lamps were artistic works, whether or not they were used as the base of a lamp. And while anyone was free to create a lamp with a statuette as the base, they could not copy the specific statuette's created by Mazer.
 
 The cheerleading uniforms were designed with lines, chevrons, and specific color blocking and other design features that gave them a distinct look. They meet the low bar for originality established in Bleistein.
 
Whether America is similarly separable is a much more complicated question. 
 Part of the feature of the art is its functionality as an interactive form of satirical modern art. The utilitarian functionality is a part of the expression, not merely utilitarian. 
 
 Further, the design of the toilet itself is not unique aside from the material it is made of, in fact the design is specifically a copy of the existing utilitarian item present in the museum. 

 However, there are some arguments that at least some elements can be copyrighted:
 For example, Duchamp's sculpture Fountain, which took the form of a urinal was not functional when it was presented as art, indicating that placing the toilet outside its traditional context transformed it. It is arguable that if someone else took an identical urinal called it Fountain and submitted it as art, they would have infringed on Duchamp's copyright.
 
 With America, the tension is its utility, however, I think it can be argued that the medium it is created with makes it distinct enough to be subject to copyright. When it was in the museum, people lined up to use this toilet eschewing the regular ones not just because it was gold, but because it was art. The toilet was stolen, not because it was a toilet, but because it was a valuable piece of art.
 
 Thus, it's clear that the public's interest in the design, and the legitimacy of the piece
 is separable from its utilitarian features as a toilet, which is unremarkable and not copy rightable. Cattelan is not trying to copyright all similar toilets, but a gold Kohler style toilet title America.
 
 Even without the utilitarian aspect, it would likely still be considered art, for example if the piece were removed from a bathroom stall and instead placed in the center of a museum show floor, it would likely still draw attention as an artistic piece in the same way Fountain did. 
 
 The piece was cast in a foundry, the material was specifically selected, the title as applied to the piece is conceptually unique, if you took the subject of the sculpture and placed it on a painting, it would still be an art piece and likely the subject of some copyright protections. 
 
 The question is to what extent those protections would apply. 
 For example, I think it's unlikely that the court would apply it to a commercially available gold toilet, unless the toilet were specifically called "America" and modeled in some way designed to create an association with the work of art instead of the utilitarian features. 
 
 Ultimately I think this would mostly be a copyright that could be enforced against other artists, but I think the copying would have to be extremely blatant, because there's not much of the design outside of some specific highlighted features that are subject to copyright.  
  

In this case, the merit of the art in question is the fact that it is a toilet. Outside the feature of the design, there is only gold—the material the toilet is cast in, and that cannot be perceived as a work of art separate from the useful article, the toilet. This is especially true because the merit of the piece is on the toilet’s operation. To be able to actually sit in and use the toilet imparts a much stronger artistic message on the viewer than simply being able to observe it. Thus, the toilet’s existence and operation is as imperative as the material it is made out of. They cannot be separated and retain artistic merit.

In Starline the design of the uniform could merit a piece of art outside of the design of a uniform because it could be shown on a canvass or another medium. In this case, the gold material cannot be copyrighted as an artistic work outside the medium of the toilet. Thus, the second element is also not met. 

In his dissent, Justice Breyer entertains the notion, “can the design features be physically removed from the article, all while leaving the fully functioning utilitarian object in place? If not, can one nonetheless conceive of the design features without replicating a picture of the utilitarian object? If the answer to either of these questions is “yes,” then the design is eligible or copyright protection.” 

In this case, the gold feature cannot be physically removed from the article and considered separately while leaving the toilet in place. This is because they are inseparable – the artistic merit of the piece is derived from the material the toilet is placed in, and the toilets’ use. Moreover, the material cannot be considered separately, because it derives no independent artistic merit. 

Courts have repeatedly denied copyright protections to objects that begin as three-dimensional designs and are incorporated as additions to a standard item, such as a spoon shaped like a heart. This is because the design is not separable from the object to which it relates. Justice Breyer states “these designs cannot be physically separated because they themselves make up the shape of the item,” and these items are useful. The same reasoning applies to the toilet; the design cannot be independently copyrighted or separated because it makes up the shape of the item.