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Design Copyright Explained

Copyright Office logo fo Dana Shultz post about design copyrightMany people are familiar with copyrights for literary and musical works, movies, and the like. This post is about a different type of copyright, the design copyright.

Title 17, Chapter 13 of the United States Code contains the relevant statutes.

Design Copyright Elements

17 USC Section 1301(a)(1) identifies the basic elements of a design copyright (emphasis added):

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.

The essential point is that a useful article must have an attractive or distinctive appearance. Example: A lamp with a base that looks like a sculpture.

17 USC Section 1308 sets forth the copyright holder’s exclusive rights:

The owner of a design protected under this chapter has the exclusive right to—

(1) make, have made, or import, for sale or for use in trade, any useful article embodying that design; and
(2) sell or distribute for sale or for use in trade any useful article embodying that design.

This illustrates the major difference between design copyright and other copyrights.

  • Exclusive rights associated with traditional copyrights include the rights to (as applicable) reproduce, distribute, publicly perform, publicly display, and make derivative works of the copyrighted work.
  • Exclusive rights associated with a design copyright focus on manufacture and sale of articles embodying the design. In this respect, a design copyright is similar to a design patent.
Remedies for Infringement

17 USC Section 1323 discusses amounts that a copyright holder may recover for infringement, which include:

  • Compensation for the infringement, plus the greater to $50,000 or $1 per infringing copy.
  • As an alternative to the foregoing, the infringer’s profits from the infringing activity.
  • Reasonable attorney’s fees.

Furthermore, 17 USC Section 1322 permits a court to issue injunctions against infringement.

Related post: Copyright Protection in One Easy Lesson

Dana H. Shultz, Attorney at Law +1 510-547-0545 dana [at] danashultz [dot] com
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