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Reconceptualizing Property in Designs

74 Pages Posted: 18 Sep 2007 Last revised: 4 Feb 2008

Orit Fischman Afori

College of Management Academic Studies Law School

Abstract

This article addresses the protection of the design of products - known in Intellectual Property terminology as applied art or industrial designs - which although important to modern economy and society suffers from continuous neglect in American legal discourse. Industrial Design sits at the crossroads of copyright, patent and trademark, and is thus believed to enjoy the protection of all three. Yet, in reality, industrial designs do not fit accurately into any one of these schemes. Therefore, design receives inappropriate legal treatment in the U.S.A.

In this article I present the reasons for a specially tailored law, a sui generis design law, and outline a detailed mechanism to resolve the ongoing debate with respect to the nexus of copyrightable applied art and un-copyrightable industrial design - a unity of design doctrine - which would protect all applied art and industrial designs under a new sui generis right. My conclusion is that such a scheme should be based on a copyright paradigm, since design is closer to creative than inventive endeavor. However, design is also guided by some immanent features, such as technology, function and fashion. Therefore, copyright doctrine is not appropriate for the design realm. The proposed scheme is logical, recommended by policy considerations, simplifies law, and is compatible with all international standards.

In the framework of the proposed unity of design doctrine I also treat one of the most troublesome questions in the field, that of the derivative applied art market, such as copyrighted figures from movies later on merchandized by varied industrialized products. I propose a dynamic and easy to handle legal rule to answer this mobility from the copyright realm into the industrial designed products realm, which helps end the ongoing dilemma of the legal framework for industrial designs.

Keywords: Intellectual Property, Copyright, Patents, Industrial Designs, Applied Art

Suggested Citation

Fischman Afori, Orit, Reconceptualizing Property in Designs. Cardozo Arts & Entertainment Law Journal, Vol. 25, No. 3, 2008. Available at SSRN: https://ssrn.com/abstract=1015212

Orit Fischman Afori (Contact Author)

College of Management Academic Studies Law School ( email )

7 Rabin Blvd.
Rishon Lezion, 75190
Israel

HOME PAGE: http://www.colman.ac.il/English/AcademicUnits/Law/Faculty/Orit_Fishman_Afori/Pages/default.aspx

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