Copyright or Design

I recently had Cambridge University Press send me a reviewer's copy of THE COPYRIGHT/DESIGN INTERFACE, edited by Estelle Derclaye.

Some background (I recently wrote an email to a friend outlining this, so I'm stealing from myself and saving some effort by re-using the material here): in the US the designer of an industrial product -- like a lamp -- does not create anything with copyright protection. It may be aesthetic (as in a certain Christmas movie, where the 'old man' wins a curvaceous lamp as a 'major award'), but insofar as the design feature is deemed inseparable from its utility as a lamp, it isn't a copyright matter. The designer (an Italian named Fragile?) would have to seek a design patent to have IP.

This is unfortunate for our Italian because a patent application, which brings with it the necessity of a prior work search, is a difficult labor-intensive process, and because copyright generally lasts a lot longer than patents. So one would generally prefer that one's IP be the former rather than have to have recourse to the latter. Hence the title of the Derclaye book.

Fashion designs have only recently become subject to copyright in the US, because of a SCOTUS decision of about a year ago, STAR ATHLETICA. That decision involved cheerleader uniforms. These obviously are useful items -- they keep the cheerleaders clothed, protecting them from the vice cops and in some situations from frostbite as well. They are designed to display the school colors in a distinctive way, with perhaps the image of the school mascot in there, some chevrons, whatever. They presumably help the cheerleaders inspire the crowd to cheer for the home team, which in turn inspires optimal on field performance. So ... is this a product design matter?

One ought to add here that it could be both. The two are not necessarily mutually exclusive.

But as to whether fashion designs are copyrightable, one could (said Justice Clarence Thomas in his majority opinion) plausibly imagine a painter putting much the same design on a canvas as one sees in three dimensions on a uniform, and if he did it would unquestionably be a copyrightable work of art. So ... the court concluded ... he is not required to do so. The fashion designer has a copyrightable work of art, in principle separate from its utilitarian significance.

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