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Design Protection in Domestic and Foreign Copyright Law: from the Berne Revision of 1948 to the Copyright Act of 1976

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Design Protection in Domestic and Foreign Copyright Law: from the Berne Revision of 1948 to the Copyright Act of 1976 PUh6 Iaftl hiurna1 VOLUME 1983 DECEMBER NUMBER 6 DESIGN PROTECTION IN DOMESTIC AND FOREIGN COPYRIGHT LAW: FROM THE BERNE REVISION OF 1948 TO THE COPYRIGHT ACT OF 1976 J. H. REICHMAN* This is thefirst of two articlesthat study the complex interactions of the diferent branches of intellectualproperty law that seek to regu- late the degree ofprotection to be accorded ornamentaldesigns of use- ful articles. A circularpatterncan be discernedin the treatment ofthese designs in both foreign and domestic law. Traditionally, the right to copyrightprotection is premised on a claim that certain indtustrialde- signs are entitled to legal recognition as art in the historicalsense. The economic repercussionsof such recognitionflowprincipalyfrom the in- dustrialcharacter of the materialsupport in which ornamentaldesigns are embodied The incidence of these repercussionsupon any given sys- tem varies with the extent to which the claim to recognition as art is itself given effect As copyrightprotection for designs of useful articles expands, the economic effects ofthis expansion on the generalproducts market induce countervailingpressuresto reduce the scope ofprotection acquiredin the name ofart. Asprotection in copyright law correspond- ingly contracts,pressure for recognition of industrialart as a legaly protectibleform of industrialpropertynormally increase. The tendency of industrialpropertylaw to breedstillfurther instances of underprotec- tion or overprotectionthen fosters renewedpressures for the regulation of industrialart within theframework of the laws governing literary and artisticproperty. © J.H. Reichman 1983 * A.B. Chicago (1955), J.D. Yale (1979); Associate Professor of Law, The Ohio State University; formerly Senior Editor, International Trade Centre, UNCTAD/GATT, Geneva. This project has greatly benefited from the advice and encouragement of Professors Ralph Sharpe Brown, Alan Latman, William T. Fryer III, Paul Goldstein, and Charles R. McManis, as well as from the kind assistance of Madame Marie-Angele P6rot-Morel, Director, Centre Universitaire d'Enseignement et de Recherche de Propri6t6 Industrielle (CUERPI), University of 1143 1144 DUKE LAW JOURMAL [Vol. 1983:1143 I. APPLIED ART IN THE BERNE UNION: THREE OPTIONS FOR THE UNITED STATES ....................................... 1145 A. Legitimation of AppliedArt in United States Law. ..... 1149 B. Legitimation of AppliedArt in the Berne Union........ 1153 1. The Unity of Art Thesis in France.................. 1153 2. Revival of the Sui Generis Regime of Design Protection.......................................... 1159 3. The IntractableProblem of Cumulation............. 1167 C. Optionsfor the United States .......................... 1170 II. EVOLUTION OF THE COPYRIGHT APPROACH FROM MAZER V STEIN TO THE GENERAL REVISION OF 1976 ............. 1174 A. Rise and Fall of the FirstNoncumulationist Model..... 1174 1. Art in the Historicaland OrdinarySense .......... 1174 2. An Interim Theory of Dissociation.................. 1182 3. TowardAn American Regime of Sui Generis Protection.......................................... 1186 4. A Continuing Theory of Dissociation................ 1201 B. The "Unity ofArt" Heresy. Its Spread and Vigorous Repression............................................. 1213 1. Separability Italian Style ........................... 1213 2. SeparabilityAmerican Style ........................ 1223 3. The Unity fArt Heresy ........................... 1238 4. GrandFinale all'italiana ........................... 1249 a. Toward an American regime ofpartial cumulation ..................................... 1251 b. Noncumulation without a design law ............ 1260 Grenoble, France. Moral support came from Professors Guido Calabresi, Al Clovis, Howard Fink, Peter Gerhart, Larry Herman, Michael Kindred, Earl Finbar Murphy, LeRoy Pernell, Michael Perry, and Dr. Paul Dusseau. Student research assistants at The Ohio State University College of Law included Thomas Emsweiler, Dr. Nicholas Kallas, Dr. Randall Hillson, Liza Toth, and Steven Russi, most of whom now practice intellectual property law. Vicki Jenkins and Marc Caldwell provided valuable back-up assistance. Professor Reinhardt Sonnenberger's German translations, Judith Sapp's editing, Ruth Kessler's library skills, and Michele Whetzel- Newton's typing and editorial assistance are gratefully acknowledged, as is the generous financial support provided by Dean James E. Meeks and the Schwartz Family Fund. All of those mentioned have left their marks on this work and me in their debt, as have numerous other students, friends, and colleagues whose help is no less appreciated. The end product is dedicated to the beloved memory of Professor Charles A. Thompson. Many of the sources cited in this work are foreign language sources, only some of which have official translations. Citations to sources without official translations are followed by parenthetical indications of the translator, when no indication is given, the word "trans." indicates that the translation has been provided by the author, J.H. Reichman. Vol. 1983:1143] DESIGN PROTECTION 1145 I. APPLIED ART IN THE BERNE UNION: THREE OPTIONS FOR THE UNITED STATES The distinctive philosophy of protection that characterizes the laws of literary and artistic property in the Berne Union countries' was ex- tended only gradually, and against considerable opposition, to "works of art applied to industry.' 2 Throughout most of the nineteenth cen- tury, the separation of "beauty" from "utility" was an axiom rooted in Enlightenment ideals.3 Reformers who attacked "art for art's sake" as an elitist slogan found support for functionalism in Greek philosophy of art and pointed to Cellini's saltcellars or Raphael's candelabra as proof that art remained art even when applied to useful objects.4 But 1. The Berne Union was created by the Berne Convention for the Protection of Literary and Artistic Works. A valuable source containing most nations' copyright laws is UNESCO & WORLD INTELLECTUAL PROPERTY ORGANIZATION [WIPO], COPYRIGHT LAWS AND TREATIES OF THE WORLD (1982) [hereinafter cited as COPYRIGHT LAws]. The Berne Convention, signed Sep- tember 9, 1886, appears in 3 COPYRIGHT LAWS, MultilateralConventions, Berne Copyright Union, item A-1 [hereinafter cited as Berne Convention]; it was revised at Berlin on November 13, 1908, id at item C-I, 1 L.N.T.S. 217 (1920) [hereinafter cited as Berlin Revision]; it was revised again at Rome on June 2, 1928, id at item E-l, 123 L.N.T.S. 233 (1931) [hereinafter cited as Rome Revi- sion]; it was revised again at Brussels on June 26, 1948, id at item F-1, 331 U.N.T.S. 217 (1959) [hereinafter cited as Brussels Revision]; it was revised again at Stockholm on July 14, 1967, id at item G-1, 828 U.N.T.S. 221 (1972) (not entered into force) [hereinafter cited as Stockholm Revi- sion]; it was revised again at Paris on July 24, 1971, id at item H-1, (entered into force July 10, 1974 in accordance with article 28) [hereinafter cited as Paris Revision]. The English texts of the Brussels and Paris Revisions are reproduced in 4 M. NIMMER, NIMMER ON COPYRIGHT, appendi- ces 26 & 27 (1983). See generally De Sanctis, The InternationalCopyright Conventions, 14 CoPY- RIGHT 254 (1978). The United States is not a signatory to the Berne Convention. See 3 M. NIMMER, supra, § 17.04[D][1], at 17-11 to 17-12; Gabay, The UnitedStates Copyright System and the Berne Conven- tion, 26 BULL COPYRIGHT SoC'Y 202 (1979); Ringer, The Role of the UnitedStates in International Copyright Law-Past, Present,and Future, 56 GEO. L.J. 1050, 1058 (1968). 2. S. LADAS, PATENTS, TRADEMARKS, AND RELATED RIGHTS: NATIONAL AND INTERNA- TIONAL PROTECTION 828-37 (1975); M.A. PEROT-MOREL, LES PRINCIPES DE PROTECTION DES DEssiNs ET MODELES DANS LES PAYS DU MARCHE COMMUN 15-30 (1968); F. PERRET, L'AUTONOMIE DU REGIME DE PROTECTION DES DESSINS ET MODELES 234-67 (1974); Duchemin, Laprotection des arts appliqubs dans laperspective dun dpit communautaireen matire de dessins et modtles industriels, 97 REVUE INTERNATIONALE DU DROIT D'AUTEUR [R.I.D.A.] 4, 10-15 (1978); P6rot-Morel, Insuffisance et complexitM du regime internationaldes dessins et modles indus- triels, reprintedin LES PERSPECTIVES D'UN DROIT COMMUNAUTAIRE EN MATIERE DE DESSINS ET MODELES INDUSTRIELS 49, 56-60 (Centre Universitaire d'Enseignement et de Recherche de Proprit6 Industrielle [CUERPI] ed. 1977) [hereinafter cited as GRENOBLE SYMPOSIUM]. 3. F. PERRET, supra note 2, at 11-12, 26-29. In France, the period of separation between the fine arts or "pure arts" and industry was most marked in the seventeenth and eighteenth centuries, when "industry was considered the worst enemy of art." C. CARREAU, MERITE ET DROIT D'AUTEUR 191 (1981) (trans.). 4. S. LADAS, supra note 2, at 831; F. PERET, supra note 2, at 11-12, 17 (citing authorities). 1146 DUKE LAW JOUVAL [Vol. 1983:1143 this lofty discourses minimized the economic aims of industrial art, which only came into its own when the industrial revolution had made it possible to reproduce useful articles in series and which then as- sumed the eminently practical task of increasing sales of goods on the general products market.6 The Berne Union countries, at the Berlin Revision Conference of 1908, mentioned the category of "applied art" for the first time,7 but declined to grant ornamental designs of useful articles full protection in the law of literary and artistic property. The Conference left member states free to deal with this controversial sub- ject matter "so far as the domestic legislation
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