Commentary

Patently Absurd

By Adam D. Thierer
This article appeared in Apple Daily, December 29, 2004.

Would it make sense to allow a clothing designer to patent a fashion fad, like “bell bottom” jeans or mini skirts? Likewise, should beauticians be able to patent a particular hair style, or should fragrance makers be granted intellectual property protection for the scents in their perfumes or colognes?

Granting designers patents in these fashions or fads would seem fairly absurd since most countries typically do not allow aesthetics — or matters of fashion and beauty — to be the subject of intellectual property law. But that doesn’t stop some companies from attempting to do so. For example, General Motors recently announced it is suing a Chinese carmaker for allegedly copying an automotive body design similar to one produced by Daewoo, a South Korean unit of GM. GM has been considering a case against a state-owned carmaker Chery for some time, suspecting the Chinese company of borrowing many design elements or even components from the Daewoo “Matiz” model.

While there may be some merit to some of the claims made by GM, efforts to secure intellectual property in aesthetics need to be carefully scrutinized. In the United States, the debate over protecting aesthetics has recently heated up after measures passed into law granting some protection to architectural designs and boat hull designs. Other countries have considered similar laws or already have similar legal protections in place.

There are two good reasons why governments typically do not grant patents or copyrights for fashions or designs. First, it is extraordinarily difficult to separate one claim from another. Car, boat or building designs are, at root, highly subjective forms of art. There is a great deal of ambiguity tied up in the question of what separates one design from another. You can find more than a few skyscrapers in one city that will resemble those found in another. And many of the cars on the road today look a lot alike. These practical considerations weigh against the award of a patent to one designer since many others can independently arrive at a very similar conception of a building, boat, or car.

Second, as a matter principle, copyright and patent law should be primarily concerned with creating incentives to innovate. We want artists and scientists to be more creative and produce more works for society and, therefore, we grant them certain limited terms of protection to incentivize such activity.

But it has always been acknowledged that there must be some rational limits on the scope of IP protection granted by law, and that includes the question of whether it makes sense, in some cases, to grant any protection at all. Fashions, fads, and aesthetic designs have traditionally fallen into this camp. There is little reason to try to incentivize such activities or forms of creation since they happen quite naturally on their own. After all, has there really ever been any shortage of good clothing lines, hair styles, building and boat designs, or automotive body designs?

Adam Thierer is director of telecommunications studies at the Cato Institute.