Design Protection in Domestic and Foreign Copyright Law: From the Berne Revision of 1948 to the Copyright Act of 1976
This is the first of two articles that study the complex interactions of the differeent branches of intellectual property law that seek to regulate the degree of protection to be accorded ornamental designs of useful articles. A circular pattern can be discerned in the treatment of these designs in both foreign and domestic law. Traditionally, the right to copyright protection is premised on a claim that certain industrial designs are entitles to legal recognition as art in the historical sense. The economoic repercussions of such recognition flow principally from the industrial character of the material support in which ornamental designs are embodied. The incidence of these repercussions upon any given system varies with the extent to which the claim to recognition as art is itself given effect. As copyright protection for designs of useful articles expands, the economic effects of this expansion on the general products market induce countervailing pressures to reduce the scope of protection acquired in the name of art. As protection in copyright law correspondingly contracts, pressure for recognition of industrial art as a legally protectible form of industrial property law to breed still further instances of underprotection or overprotection then fosters renewed pressures for the regulation of industrial art within the framework of the laws governing literary and artistic property.
Jerome H. Reichman, Design Protection in Domestic and Foreign Copyright Law: From the Berne Revision of 1948 to the Copyright Act of 1976, 32 Duke Law Journal 1143-1264 (1983)