Viva R. Moffat*

In passing the Copyright Act in 1976, Congress provided that “pictorial, graphic, and sculptural works” were to be protected, but at the same time made clear that works of industrial design, as opposed to works of applied art, were not to be protected by copyright law. Put simply, “useful articles” are not copyrightable. This is so because useful things belong in the patent realm, if they are to receive protection at all. Seemingly straightforward, this distinction—between applied art and industrial design, between copyright law and patent law—has long perplexed policymakers, courts, and academics.

While the law and the language, as shall be seen, can be jargon-filled and obscure, at issue is a straightforward and real-world concern: whether and to what extent items like bicycle racks, smartphones, belt buckles, mannequins, and all manner of everyday products ought to be protected by some kind of exclusive right. Put another way, the question is whether copyright provides the proper form of protection for items of industrial design.

This article concludes emphatically that, while some kind of protection—that is, some kind of restriction on copying, be it design patent, trade dress, or a sui generis form of protection—may be appropriate, copyright law is not the right approach. More specifically, “not copyright” for industrial design is sufficiently important that a bright-line rule excluding industrial design from copyright, in contrast to the nuanced standards currently employed, should be adopted.

Continue reading
*Associate Professor, University of Denver Sturm College of Law.