Beauty in the Eye of the Judicial Beholder

Full-text available at SSRN. See link in this record.Humans tend to demonstrate strong preferences for images they consider aesthetically pleasing. Aesthetic preferences often manifest themselves in the law, and are especially relevant to forms of intellectual property protection for visual designs, works, marks, and aspects of celebrity publicity. This study uses empirical data from human subject experiments to examine what influences aesthetic preferences may have on the validity and infringement of visual intellectual property: design patents, trademarks, copyrights, and rights of publicity. In a comprehensive study of every design patent litigated to a final adjudication between 2005 and 2011, design patents held to be invalid tended to be the least attractive, those held to be valid but not infringed tended to be intermediate in attractiveness, and those held to be valid and infringed tended to be the most attractive. These results challenge current design patent doctrine, in which the patentability of designs is generally independent of aesthetic considerations, and may have implications for other intellectual property doctrines, such as the fair use defense in copyright, trademark, and rights of celebrity publicity. In addition to implications for legal doctrine, evolutionary, neurobiological, and cultural explanations are evaluated as potential explanations for aesthetic preferences in visual intellectual property