The Copyright/Patent Boundary

48 Pages Posted: 4 Jun 2013

See all articles by Viva Moffat

Viva Moffat

University of Denver Sturm College of Law

Date Written: June 3, 2013


Since the passage of the 1976 Copyright Act, the scope of protection for industrial design has been one of the most troublesome areas of copyright law. Many everyday items, from smart phones and gaming devices to bicycle racks and clothing mannequins, blend form — which is protected by copyright law — and function — protected by patent — and therefore lie at the boundary of the two areas of law. Courts and scholars have persistently struggled with copyright’s useful article doctrine, which seeks to delineate that boundary, but none of the approaches has proved to be either practically or theoretically satisfying.

This article proposes a default rule that differs both from the cur-rent law and many reform proposals because it demands acknowledgement that the useful article doctrine is not about copyright law, at least not entirely. The useful article doctrine is a channeling doctrine meant to direct certain works — useful things like items of industrial design — away from copyright law so that designers do not have an incentive to avoid patent law’s more stringent requirements by obtaining copyright protection instead. The doctrine can serve this channeling function, however, only if it draws a clear line that errs on the side of ensuring that useful articles do not receive copyright protection.

To accomplish this, the courts should borrow from trademark’s functionality doctrine. First and foremost, when the useful article doctrine is raised as a defense, the burden should shift to the copyright proponent to prove that the item sought to be copyrighted is not “useful.” Even without more, this shift in the default rule would draw a much brighter line, deterring designers from pursuing copyright protection and litigation and channeling industrial design away from copyright and to-ward patent. This will admittedly result in the exclusion from copyright of original expression that would in every other respect qualify. But this is as it should be. Copyright is not the appropriate form of protection for items of industrial design; copyright’s rule should reflect that.

Suggested Citation

Moffat, Viva, The Copyright/Patent Boundary (June 3, 2013). University of Richmond Law Review, Forthcoming; U Denver Legal Studies Research Paper No. 13-29. Available at SSRN: or

Viva Moffat (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

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