Copyright-Like Protection for Designs

Abstract

For many decades, the preferred route to protection against imitators of original designs has been a variation of the protection of the law of copyright. Many participants and observers, both interested and disinterested, believe that design is under-protected. Congress, however, has yet to be persuaded that additional protection is needed. This Article reviews the quest for copyright-like protection of designs. This quest falls into two uneven time spans. One stretches from before the 1930s—more intensely from 1957—through 1983. Every Congress, since the 85th in 1957, has witnessed the introduction of a bill to protect the ornamental designs of useful articles. These bills have passed the Senate five times but have never received favorable treatment in the House. The second time span is just a blink from 1985, when the perennial bill came to be titled "Industrial Designs of Useful Articles," and a significant shift of emphasis occurred. This Article considers whether this changeling has any better chance of passage than its predecessors, and further, whether as a matter of public policy, it should become law.