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How Shifting Gender and Sexuality Norms in Late 19th Century America,
Conceptually Mapped Onto Decorative and Ornamental Objectsand
the Primary Body of Law Governing the Reproduction of Those Objects
Contributed to the Marginalization of U.S. Design Patents, Producing
Doctrinal Distortions in Multiple Areas of IP That Persist Today
by
Charles E. Colman
Acting Assistant Professor of Lawyering, NYU School of Law
Adjunct Professor, NYU Steinhardt, Visual Culture: Costume Studies
This presentation was given at Marquette Law Schools Inaugural Mosaic Conference; 2014 Charles E. Colman
Overview
Overview (contd)
From the first murmurs of the possibility of design-patent
protection in the 1830s well into the second half of the
nineteenth century, mainstream American legal rhetoric
described design patents as a vehicle for promoting the
progress of the decorative arts. During the same time
period, however, popular connotations of decoration and
ornamentespecially in relation to gender and morality
were undergoing an evolution in American culture.
By the last quarter of the Nineteenth Century, much of the
ornamental material under the primary legal purview of
the design-patent regime had drifted into a connotative
cluster that included traits like frivolity and effeminacy.
Overview (contd)
By the 1890s, social developments provoking anxiety about sex
roles in society, along with high-profile events (like the
scientific discovery of homosexuality and the internationally
followed sodomy trials of Oscar Wilde, well-known aesthete
and advocate of beautiful things for the home), had expanded
the connotative cluster surrounding ornament and decoration
to include such socially unacceptable characteristics as moral
decay and perversion.
American federal judges, acting in response to these changing
social norms and the increasingly coded nature of the objects
over which design patent protection was claimed, began to
enforce (or decline to enforce) such patents based not on the
increasingly suspect public policy of promoting the decorative
arts, but rather on the seemingly unimpeachable objective of
promoting commerce through unfair-competition principles.
Overview (contd)
The rhetorical and doctrinal innovations of fin-de-sicle
judicial decisions effectively transformed U.S. design-patent
protection from an incentive for the creation of art (somewhat
in the vein of twentieth-century copyright) to an incentive for
investment in industrial ventures (arguably in the vein of latetwentieth-century trade-dress protection for product design),
to essentially a dead letter (once formal product-design tradedress rights were recognized by the courts.)
While this shift rendered design-patent jurisprudence
reconcilable, at both the psychological and social level, with
prevailing heterosexual male values and concerns, it did so at
the expense of design-patent protections effectiveness in
accomplishing its original purpose. Further, the resulting
marginalization of design patents produced doctrinal
distortions (conceptual separability, aesthetic functionality,
etc.) in other areas of intellectual property that stepped in.
See also ROY MORRIS JR., DECLARING HIS GENIUS: OSCAR WILDE
IN NORTH AMERICA (2013) (on Wildes 1000-lecture tour of, and
fame in, the United States)
Questions or comments?
Please feel free to e-mail
me at cec10@nyu.edu