concurring in part and dissenting in part:
Although I concur in the reversal of the district court’s grant of summary judgment on the trademark and unfair competition claims, I respectfully dissent from the majority’s discussion and disposition of the copyright claim.
My colleagues, applying an adaptation of Professor Denicola’s test, hold that the aesthetic elements of the design of a useful article are not conceptually separable from *1151its utilitarian aspects if “[f]orm and function are inextricably intertwined” in the article, and “its ultimate design [is] as much the result of utilitarian pressures as aesthetic choices.” Applying that test to the instant matter, they observe that the dispositive fact is that “in creating the Ribbon Rack, [Levine] has clearly adapted the original aesthetic elements to accommodate and further a utilitarian purpose.” (emphasis added). The grounds of my disagreement are that: (1) my colleagues’ adaptation of Professor Denicola’s test diminishes the statutory concept of “conceptual separability” to the vanishing point; and (2) their focus on the process or sequence followed by the particular designer makes copyright protection depend upon largely fortuitous circumstances concerning the creation of the design in issue.
With regard to “conceptual separability,” my colleagues deserve considerable credit for their efforts to reconcile Carol Barnhart Inc. v. Economy Cover Corp., 773 F.2d 411 (2d Cir.1985) with Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989 (2d Cir.1980). In my view, these cases are not reconcilable. Carol Barnhart paid only lip service to the fact that the “conceptual separability” of an article’s aesthetic utilitarian aspects may render the design of a “useful article” a copyrightable “sculptural work.” 17 U.S.C. § 101 (1982). Actually, the Carol Barnhart majority applied a test of physical separability. They thus stated:
What distinguishes [the Kieselstein Cord ] buckles from the Barnhart forms is that the ornamented surfaces of the buckles were not in any respect required by their utilitarian functions; the artistic and aesthetic features could thus be conceived of as having been added to, or superimposed upon, an otherwise utilitarian article. The unique artistic design was wholly unnecessary to performance of the utilitarian function. In the case of the Barnhart forms, on the other hand, the features claimed to be aesthetic or artistic, e.g., the life-size configuration of the breasts and the width of the shoulders are inextricably intertwined with the utilitarian feature, the display of clothes.
773 F.2d at 419 (emphasis added). In contrast, Kieselstein-Cord focused on the fact that the belt buckles at issue could be perceived as objects other than belt buckles:
We see in appellant’s belt buckles conceptually separable sculptural elements, as apparently have the buckles’ wearers who have used them as ornamentation for parts of the body other than the waist.
632 F.2d at 993.
My colleagues’ adaptation of the Denico-la test tracks the Carol Barnhart approach, whereas I would adopt that taken in Kieselstein-Cord, which allows for the copyrightability of the aesthetic elements of useful articles even if those elements simultaneously perform utilitarian functions.1 The latter approach received its fullest elaboration in Judge Newman’s dissent in Carol Barnhart, where he explained that “[f]or the [artistic] design features to be ‘conceptually separate’ from the utilitarian aspects of the useful article that embodies the design, the article must stimulate in the mind of the beholder a concept that is separate from the concept evoked by its utilitarian function.” 773 F.2d at 422 (Newman, J., dissenting).
In other words, the relevant question is whether the design of a useful article, however intertwined with the article’s utilitarian aspects, causes an ordinary reasonable observer to perceive an aesthetic concept not related to the article’s use. The answer to this question is clear in the instant case because any reasonable observer would easily view the Ribbon Rack as an *1152ornamental sculpture.2 Indeed, there is evidence of actual confusion over whether it is strictly ornamental in the refusal of a building manager to accept delivery until assured by the buyer that the Ribbon Rack was in fact a bicycle rack. Moreover, Brandir has received a request to use the Ribbon Rack as environmental sculpture, and has offered testimony of art experts who claim that the Ribbon Rack may be valued solely for its artistic features. As one of those experts observed: “If one were to place a Ribbon Rack on an island without access, or in a park and surround the work with a barrier, ... its status as a work of art would be beyond dispute.”3
My colleagues also allow too much to turn upon the process or sequence of design followed by the designer of the Ribbon Rack. They thus suggest that copyright protection would have been accorded “had Brandir merely adopted ... as a bicycle rack” an enlarged version of one of David Levine’s original sculptures rather than one that had wider upper loops and straightened vertical elements. I cannot agree that copyright protection for the Ribbon Rack turns on whether Levine serendipitously chose the final design of the Ribbon Rack during his initial sculptural musings or whether the original design had to be slightly modified to accommodate bicycles. Copyright protection, which is intended to generate incentives for designers by according property rights in their creations, should not turn on purely fortuitous events. For that reason, the Copyright Act expressly states that the legal test is how the final article is perceived, not how it was developed through various stages. It thus states in pertinent part:
the design of a useful article ... shall be considered a ... sculptural work only if, and only to the extent that, such design incorporates ... 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 (1982) (emphasis added).
I therefore dissent from the decision so far as it relates to copyrightability but concur in its discussion and holding as to the trademark and unfair competition claims.
. Indeed, Kieselstein-Cord approved Professor Nimmer’s example of Christo’s "Running Fence” as an object whose sculptural features were conceptually, but not physically, separable from its utilitarian aspects. 632 F.2d at 993; see 1 Nimmer on Copyright § 2.08[B] at 2-96.1 & n. 112.2 (1987). The fact that the Running Fence’s aesthetic features were "inextricably intertwined” with its functional aspects, however, creates doubt as to whether it is a copyrightable “sculptural work” under Carol Barnhart or the instant decision.
. The reasonable observer may be forgiven, however, if he or she does not recognize the Ribbon Rack as an example of minimalist art.
. The Copyright Office held that the Ribbon Rack was not copyrightable because it lacked originality. There may be some merit in that view in light of the Ribbon Rack’s use of standard radii. This issue, however, was not raised in defendant's motion for summary judgment, was not addressed by the district court, and is not implicated here.