Advanced Copyright Law on the Internet

(1) Protection of Designs Embodied in Useful Articles

Section 1301(a) of the statute provides generally that the “designer or other owner of an
original design of a useful article which makes the article attractive or distinctive in appearance
to the purchasing or using public may secure the protection provided by this chapter upon
complying with and subject to this chapter.” Section 1301(b)(2) defines a “useful article” as a
“vessel hull or deck,^1469 including a plug or mold, which in normal use has an intrinsic utilitarian
function that is not merely to portray the appearance of the article or to convey information. An
article which normally is part of a useful article shall be deemed to be a useful article.” It is
apparent that, although this definition is currently limited to vessel hulls and decks, the phrase
“vessel hull or deck” in the definition could easily be replaced with a generic phrase such as
“article,” thereby extending protection to general industrial designs. Alternatively, enumerated
categories of designs in addition to vessel hulls or decks could easily be added to the definition.

(2) Originality

The statute establishes a low threshold of originality for protection. Specifically, Section
1301(b)(1) provides that a design is original “if it is the result of the designer’s creative endeavor
that provides a distinguishable variation over prior work pertaining to similar articles which is
more than merely trivial and has not been copied from another source.” Although this is a low
threshold, it is interesting to note that it is a higher threshold than under copyright law.
Specifically, under copyright law a work of authorship is deemed original if it is simply not
copied from another work, whether or not it embodies a distinguishable variation from prior
works. Thus, two photographers could take identical photos from the edge of the Grand Canyon
by standing in the same places, and each would produce an “original,” and therefore
copyrightable, photo. By contrast, under the design statute, a second designer who, as a result of
independent development, happens to produce a design the same as a preexisting design, has not
created an “original” design.

(3) Exclusions from Protection

Section 1302 excludes protection for a design that is:

(1) not original;

(^1469) Section 1301(b)(3), as amended by Section 5005(a)(2) of the Intellectual Property and Communications
Omnibus Reform Act of 1999, P.L. 106-113, defines a “vessel” as “a craft--(A) that is designed and capable of
in dependently steering a course on or through water through its own means of propulsion; and (B) that is
designed and capable of carrying and transporting one or more passengers.” Under Section 1301(b)(4), as
amended by the Vessel Hull Design Protection Amendments of 2008, P.L. 110-434, a “hull” is “the exterior
frame or body of a vessel, exclusive of the deck, superstructure, masts, sails, yards, rigging, hardware, fixtures,
and other attachments” and a “deck” is “the horizontal surface of a vessel that covers the hull, including exterior
cabin and cockpit surfaces, and exclusive of masts, sails, yards, rigging, hardware, fixtures, and other
attachments.”