Professional Documents
Culture Documents
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 LUniversit du Qubec Montral on May 14, 2015
as part of the inaugural Droit et Contexte conference. 2015 Charles E. Colman.
Copyright law
Overview of my project
For much of the 20th Century, design patents were effectively a
nullity in U.S. intellectual property rights litigation. Why?
In this project, I draw on various types of historical evidence to
show that late 19th century cultural developments in the U.S.
urban Northeast gave rise to a stigma surrounding the
ornamental and decorative works under the exclusive legal
purview of design-patent law. The creation and appreciation of
non-utilitarian design grew increasingly intertwined with such
widely disfavored notions as frivolity, effeminacy, and sexual
deviance. Leading appellate-court judges responded by
adjudicating design-patent cases so as to perform and endorse
prevailing gender and related normsinvalidating numerous
design patents as non-inventive. Their decisions in these cases
created a large body of anti-design patent precedent that drove
designers to other areas of IP, like trade dress and copyright.
Bevin Bros. Mfg. Co. v. Starr Bros. Bell Co., 114 F. 362, 363
(C.C.D. Conn. 1902) (emphasis added)
R.E. Dietz Co. v. Burr & Starkweather Co., 243 F. 592, 594
(2d Cir. 1917)
[Anyone] starting to design sad irons with the art before him,
and governed only by considerations of proportion and plan,
would have had no difficulty in making the plaintiff s iron.
Knapp v. Will & Baumer Co., 273 F. 380, 382 (2d Cir. 1921)
(emphasis added)
By this point, the Second Circuitwhose decisions on design patents
were generally followed by its sister circuitshad crystallized its aversion
to decorative design into doctrine that nearly guaranteed invalidation.
Questions or comments?
Please feel free to e-mail
me at cec10@nyu.edu