Abstract

A general principle of European registered design law and U.S. design patent law is that “what you see is what you get.” This entails that only that which can be depicted visually—in a drawing or in a photograph and filed with a design or patent application—is protectible. This is a different approach from copyright law, which protects a design to the extent that it is a work of artistic craftsmanship (as in the United States and Australia) or a work of applied art (as in Scandinavian jurisdictions) and is the outcome of a designer’s “independent” and “creative” efforts, as required for copyright protection. In this article I consider some fundamentals in the definitions of design in European Union (EU) design law and in U.S. design patent law. Taking note of ways that intellectual property law defines and protects a design when it is specifically not classified as an artistic work reveals how statutes make distinctions between form and function, utility and ornament (for the sake of preventing the creation of monopolies on, say, chairs with armrests, forks with a specific number of prongs and so forth, thereby balancing the rights of creators and the public’s access to creative works). Distinctions in the law are legal constructs that have (often unrecognized) bearings on their, likewise historically constructed, counterparts in aesthetics. The legal notion of design as “what you see” (which serves to legally define the object of design protection) suggests an often-unspoken expectation about art, in and outside of the law.