Not (Necessarily) Narrower: Rethinking the Relative Scope of Copyright Protection for Designs

Abstract

There is ongoing and long-standing debate about whether the United States should provide more intellectual property protection for designs and, if so, what form that protection should take. A number of prior commentators have argued that the United States should protect designs using copyright or a copyright-like sui generis regime. These commentators often base their arguments, at least in part, on the assertion that copyright protection is narrower than design patent protection. Although commentators sometimes point to various copyright doctrines in support of this assertion, the basic premise — i.e., that a “right to prevent copying” of designs would be narrower than design patent protection — seems to be generally accepted as a truism.

This Essay questions that premise. Even if, as a general matter, a patent provides “a stronger monopolistic right” for its prototypical subject matter than a copyright provides for its prototypical subject matter, that does not necessarily mean that the same is true when each regime is applied to designs. This Essay briefly reviews the relevant portions of U.S. design patent and copyright law and the limiting copyright doctrines discussed by prior commentators. Based on this preliminary analysis, this Essay concludes that a right to prevent copying designs could be just as broad as — if not broader than — design patent protection. If this is true, then many of the arguments made in support of adopting a copyright-like regime to protect designs need to be reexamined.

Keywords: design patent, copyright, industrial design, design rights, intellectual property